Court of Appeal in Northern Ireland Decisions

"Throughout this time Lance Corporal Graham was employed as a team technician specialising in surveillance. Unassuming, loyal, honest, Lance Corporal Graham developed into one of the best soldiers in the platoon. He was conscientious, diligent and thoughtful. As a practising Christian he displayed many qualities over and above those of an excellent soldier and these made him stand out from his peers. In short, he is every bit the high-grade dedicated soldier that the British Army strives to develop."

Following his conviction he would be discharged from the Army, but he has expressed the intention of applying for discharge in any event. He has not handled a weapon since and has declared that he never will do so again.

"In interview Mr Graham was visibly still distressed at the consequences which his negligent actions have incurred. He acknowledged that he can never make reparation for his actions and whilst he is unaware of the attitude of his victim's family he stated that he would not blame them for wanting him severely punished. In interview I found him genuinely remorseful for the death which he has caused and the grief which this has brought to others. He was not focused on the consequences for himself and was fully acceptant that he is deserving of a custodial sentence."

The probation officer considered it very unlikely that the applicant would reoffend or cause harm to others in the future. She did not think that he would require or benefit from the assistance of the Probation Service.

"… the only explanations for what happened on this day were the few remarks made by the defendant after his rifle was discharged, what he told the interviewing detectives, and the evidence of Lance Corporal Gregg about what happened in the rear of the Land Rover. How the safety catch came to be in the "off" position, how the weapon was discharged, how the weapon was pointing at Corporal Green's head have never been satisfactorily explained, nor the combination of or conjunction of those events.

What is clear is that the SA80 rifle cannot be discharged without the safety catch being moved to the "off" position and a finger inserted inside the trigger guard and the trigger pressed sufficiently to discharge the weapon. All of those matters were contrary to what every soldier is taught in training on the handling of weapons. The reason soldiers are trained and retrained constantly and periodically in the handling of weapons is obvious – because rifles are very dangerous objects unless handled with care. When a soldier draws a weapon from his armoury, he owes a duty of care to everyone in the vicinity of him to handle that weapon with extreme care. The defendant did not do that on this occasion. On lifting his rifle he failed to check the safety catch; indeed, he went further and pulled the trigger, a grossly negligent act when he had failed to check and know the position of his safety catch.

All of this was done when the rifle was pointing down the avenue between the huts and towards the main road and other buildings and accommodation where other soldiers and civilians were likely to be. It was, in effect, a built-up area. It is not suggested that he pointed that weapon deliberately, but it is accepted that it was across his knees in the manner in which I have indicated."

The judge went on to say that he took into account the applicant's remorse for the consequences of his act, but pointed out that he contested the charge, while a plea of guilty would have enabled the court to give credit for his remorse. He concluded that the offence was so serious that only a custodial sentence would be justified and imposed a sentence of two years' imprisonment.