Court Martial - Sentencing

In Rheins [Robert] v R [2011] EWCA Crim 2397 the Court of Appeal (Criminal Division) held that a Court Martial is entitled, in sentencing a defendant, to take into account not only the bare facts of the offences themselves, but also the subsequent conduct of a defendant in connection with the offences. It was entitled to do so, not because the subsequent conduct made the offences themselves worse, but because it bore directly on the issue of whether a defendant had shown himself unfit to hold his rank.
MILITARY LAW — Armed forces — Disobedience to lawful command — Defendant applying for discharge from Navy on ground of conscientious objection to war in Afghanistan — Claim rejected — Defendant commencing an appeal — Defendant refusing to obey lawful command pending outcome of appeal — Defendant arrested and charged with intentionally disobeying lawful command — Judge advocate directing that circumstances of defendant’s refusal no defence to charge — Whether misdirection — Human Rights Act 1998, Sch 1, Pt I, art 9 — Armed Forces Act 2006, s 12(1)(a)

Regina v Lyons [2011] EWCA Crim 2808; [2011] WLR (D) 345

Courts-Martial Appeal Court : Toulson LJ, Openshaw, Hickinbottom JJ: 1 December 2011A

A person who, having voluntarily entered military service, sought to be discharged from further service on the ground of conscientious objection was subject to the requirements of military service and military discipline until his claim had been established. The giving of notice of appeal did not justify a refusal to obey a lawful command pending the determination of the appeal.

The Courts-Martial Appeal Court so held when dismissing an appeal by Leading Medical Assistant Michael Peter Lyons against his conviction on 5 July 2011 at a General Court Martial held at Portsmouth Military Court Centre, before Judge McGrigor, Assistant Judge Advocate General, of disobedience to a lawful command, contrary to section 12(1)(a) of the Armed Forces Act 2006, for which he was sentenced to seven months’ military detention, reduced to the rank of able seaman and dismissed from the service.

said, in the reserved judgment of the court, that the appellant had joined the Royal Navy in 2005. He underwent medical training and was posted to submarines. In May 2010 he was told that he would be deployed to Afghanistan. He formed the view that the UK’s involvement in the war in Afghanistan was wrong and that it would be morally wrong for him to take part in it. He therefore applied for discharge from the navy on the ground that he was a conscientious objector. The procedure for a member of the navy seeking to be discharged on grounds of conscientious objection was set out in Personnel, Legal, Administrative and General Orders 0801. In accordance with the procedure set out in paragraph 3 of that order the appellant had meetings with his chaplain and commanding officer to discuss his claim. The chaplain concluded that the appellant was someone with a political objection to a particular military engagement rather than a conscientious objector. The commanding officer, however, supported the appellant’s application which was nevertheless refused on 7 September 2010 by a letter from the Deputy Director Naval Personnel. On 15 September the appellant commenced an appeal by way of written application. On 20 September 2010 he attended operational deployment training which he was required to undergo for deployment in Afghanistan. The particular purpose of the course was weapon training. The appellant refused to take part in any weapon training until his appeal had been decided. He was arrested and charged with intentionally disobeying a lawful command. At his court-martial in July 2011, the judge advocate gave directions that, as a matter of law, the fact that the appellant saw himself as a conscientious objector and was in the process of appealing against the rejection of that claim was not a defence to a charge of disobedience to a lawful command. It was submitted that that was a misdirection in view of the provisions of article 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms by which the appellant had a right to refuse to take part in further service on the ground of conscientious objection until his claim had been finally determined.

In their Lordships’ judgment the procedure for dealing with claims of conscientious objection satisfied the requirements of being prescribed by law and being necessary in a democratic society in the interest of public safety, the protection of public order and the protection of others. A person who voluntarily entered military service undertook serious responsibilities potentially involving the lives and safety of others. If he sought to be discharged from further service on the ground of conscientious objection it was right that there should be a proper process for deciding whether his claim was well founded. Until that has been established it was necessary and just that he should continue to be subject to the requirements of military service and military discipline. Otherwise he could immediately escape from the responsibilities which he had voluntarily accepted, regardless of the consequent risk to others and regardless of whether or not his claim was well founded. Their Lordships did not accept the argument that the appellant’s giving of notice to appeal justified his refusal to obey an order pending the determination of his appeal. That would make the order optional at his choice. Accordingly the argument that the judge advocate’s direction was wrong in law was rejected.

Fiona Edington (assigned by the Registrar of Courts-Martial Appeals) for the appellant; Commander Darren K Reed (instructed by the Naval Prosecuting Authority) for the prosecutor.

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