Armstrong, R v

In this prosecution appeal against a terminating ruling made at a Court Martial held at the Military Court Centre, Bulford between 13 and 16 June 2011, two issues arise. The first is the scope of s.69 of the Army Act 1955, now re-enacted in materially similar terms in s.19 of the Armed Forces Act 2006 for conduct occurring after 31 October 2009. The second is the course which a judge at a Court Martial should adopt when he is not content with the charges that the Crown in a military prosecution seeks to prefer. At the conclusion of the hearing, we gave our decision that the appeal be allowed for reasons to be given later. These are our reasons.

Unusually in such a prosecution appeal it is not necessary to anonymise the respondent or refrain from setting out the full facts.

The respondent to the appeal is a serving army officer who has served in Iraq, Afghanistan and Northern Ireland. On 1 May 2009 when serving in Northern Ireland his service quarters were searched by the Royal Military Police. They discovered the following:

Each of the four matters which we have set out above could have formed the basis of charges of substantive offences under the criminal law of England and Wales. The first two represented offences under the Firearms Act 1968, the third offences under the Misuse of Drugs Act 1971 and the last a breach of the Official Secrets Act 1989.

Instead of being charged with four substantive offences in respect of the matters under the ordinary criminal law, he was charged with four separate charges in respect of the four separate matters under s.69 of the Army Act 1955 which provides:

“Conduct to prejudice of military discipline

Any person subject to military law who is guilty [whether by any act or omission or otherwise, of conduct] to the prejudice of good order and military discipline shall, on conviction by court-martial, be liable to imprisonment for a term not exceeding two years or any less punishment provided by this Act.”

Each of the four separate matters we have set out was charged separately as a charge under s.69. Under s.69, the Court has power to sentence a defendant to up to two years imprisonment.

A plea and case management hearing took place on 7 February 2011 before Assistant Judge Advocate General Hill. The respondent pleaded guilty to each of the four charges. The judge took the view that each of the charges was a charge that should have been made in respect of the substantive offences to which we have referred and it was not appropriate, in his view, to charge the respondent under s.69. He decided that the appropriate course was not to accept the pleas, but to decide at a trial whether the offences charged under s.69 were made out as a matter of law or whether the way in which the charges had been preferred was an abuse of the process of the court.

The trial took place on 13-16 June 2011. The Crown opened the case on the basis that there were four ingredients to each of the offences under s.69. As the first ingredient, the conduct which we have set out, was admitted by the respondent, it was only necessary for it to prove the other three ingredients, namely that the conduct was prejudicial to good order and prejudicial to military discipline and that the respondent intended to act in the way in which he did or was reckless in so acting. Some evidence was called and the prosecution closed its case. The judge then set out the points on which he directed the Crown to address him, including (i) the scope of s.69, (ii) whether there was a case to answer and (iii) whether the Crown by the course it had adopted was removing from the court its ability to pass an adequate sentence.

In the course of responding to the judge’s direction to address him, the advocate for the Crown referred the judge to the decision of this court in R v Dodman [1998] 2 Cr App R 338. Dodman, a Squadron Leader about to be made redundant, took remunerated employment with an aerospace company whilst still in the Air Force. During the same period he also used an officers’ mess at an RAF base, untruthfully signing himself in as being on temporary duty at that base. He was found guilty of offences under s.69 of the equivalent Air Force Act 1955 which refers to Air Force discipline and not military discipline. He appealed to this court. Hobhouse LJ (as he then was), giving the judgment of the court, held that the ingredients of the offence under s.69 were (i) conduct (ii) of a character, objectively assessed, prejudicial to good order and Air Force discipline and (iii) mens rea. As to the mental element, the offence was not one of strict liability but required basic mens rea or basic intent:

“Thus the accused must be shown either to have intended to act (or omit to act) as he did or to have been reckless whether he was so acting (or omitting to act). The mens rea therefore requires intentional or reckless acts (or omissions). If the act was deliberate, then no question of recklessness (or, indeed, any other question of mens rea) will arise at that stage. If the act was not deliberate then it must be proved that when he acted or omitted to act his state of mind was reckless in the sense that he either closed his mind to the risk of his so doing or omitted to do the act in question or, appreciating the risk, he chose to run that risk.”

It was not a crime which required a specific intent.

Despite the decision in Dodman which was binding on the Assistant Judge Advocate General, as it is on this Court, he did not refer to it in the ruling he made. Instead, he delivered a wide-ranging ruling on the scope of s.69, the ingredients of s.69 and the reasons why, in his view, there was no case to answer.

He began by setting out his view that there was “something of a misconception in certain quarters within the military jurisdiction” as to the true scope or ambit of s.69 and that that misconception was evident in this case. He had two principal concerns.

He considered that conduct which amounted to a criminal offence under the law of England and Wales or to a military offence should normally be charged as such. Where a charge was laid under s.69 there was no limitation attached to the type of conduct falling within the section. It could, but need not, be unlawful. It could, for example, amount to conduct that would not be either criminal or unlawful under the law of England and Wales, as for example where a sergeant asked a member of his platoon to lend him money.

The offence under s.69, in his view contained what were in effect six ingredients:

In respect of ingredients (i), (ii), (v), and (vi), there was no difference between the submission of the Crown, as we have set out at paragraph 7 and the view the judge took of s.69. However the judge had added two further ingredients, (iii) and (iv).

Applying ingredients (iii) and (iv) to the facts of the case, the judge concluded that there was no evidence that before the Royal Military Police found the items on 1 May 2009 anyone else within the military community had or was ever likely to have had any idea they were there at all. There was no evidence on which it could be concluded that the respondent would have foreseen a realistic possibility of the items being discovered. As there was in those circumstances no potential for a reaction amongst the military at all, it followed there was no potential for a reaction that might bring about the prejudice referred to in s.69. That was sufficient for the purpose of deciding there was no case to answer.

In the alternative, anyone learning of the respondent’s conduct would have had the reaction of contempt and dismay. The conduct would have been seen as an obvious criminal offence and could have had no direct or indirect bearing on the professional or personal life of anyone else in the military community. The judge concluded:

“It is certainly true that the conduct having been discovered there would have been in a military sense little respect left for a confidence in the defendant and so his ability to command would be compromised. However this would not be a direct, in the sense of an immediate reaction to the conduct itself but rather the damage it caused to the standing of the Major in the military community. The greater potential risk to good order and military discipline in a case like this one lies frankly not in the conduct itself but in it not being investigated and prosecuted properly. Any enlisted man would doubtless have a shrewd idea of the likely charges he would face and the likely outcome if he were caught with a trophy weapon, ammunition, and had been behaving in this way with sensitive classified material. Thus I find, therefore, in the case of each charge there is no case to answer in the alternative for the further reasons there is no basis for concluding this conduct of itself carried with it the potential for the particular prejudice referred to in the section.”

Having decided there was no case to answer, the judge went on to comment about the appropriateness of the course taken by the military prosecutor. We consider this at paragraphs 37 and following below.

In the light of the ruling, the Crown sought leave to appeal to this Court. It was apparent to the Court that it was likely (as turned out to be the case) that the respondent would not advance any argument in opposition to that presented by the Crown for the obvious reason that the respondent had pleaded guilty to the charges under s.69 and wished to maintain that position. The Court therefore asked Her Majesty’s Attorney-General if he would appoint an Advocate to the Court so that the Court could have properly presented to it an argument contrary to that advanced by the Crown and in support of the ruling of the judge. The Court is greatly indebted to Her Majesty’s Attorney-General for appointing Mr Louis Mably to act as Advocate to the Court and to Mr Mably for his concise and persuasive submissions.

The ingredients of the offence under s.69 are a matter of statutory construction. The Crown’s submission as set out in paragraph 7 above was that there were four ingredients. The question for us is whether the judge was right in his view that there were the two additional ingredients to the offence which we have set out at paragraph 12 above as ingredients (iii) and (iv).

The conduct element of the offence

The conduct charged under s.69 is not circumscribed save by the requirement that it is to the prejudice of good order and military discipline. As the judge held, the requirement of prejudice of good order and military discipline are conjunctive and not disjunctive. Subject to that, the Act does not seek to define conduct.

Nonetheless, it was accepted on behalf of the Crown that in ordinary circumstances, conduct that constituted a specific criminal offence under the law of England and Wales or a specific offence under military law should be charged as such and not under s.69. The Crown also accepted that it was not permissible to use s.69 to charge someone with conduct which amounts to a criminal offence as a means of obtaining a conviction without proving all the ingredients of the substantive criminal offence. That is clear from Dodman (see page 344) and R v Miller [1983] Crim LR 622.

Beyond recording the position of the Crown, it is neither necessary nor desirable that this Court should comment on the scope of conduct under s.69, save to say that where conduct constitutes an offence under the ordinary criminal law, it must be charged as such save in wholly exceptional circumstances. As Mr Mably rightly submitted, there can ordinarily be no justification for using s.69 in such circumstances and it would be outside the lawful exercise of the prosecutor’s discretion; its use might well circumvent the statutory sentencing regime imposed by Parliament on the courts either to the detriment of the defendant by enabling a harsher sentence to be passed or to the detriment of the public interest in preventing the court passing a sentence within the range specified by Parliament and imposing ancillary orders.

A requirement that the conduct become known to at least one other person in the military community?

Although there was no issue as to the nature of the conduct ingredient of the offence we have so far identified, the judge, as we have explained, added a further element of conduct, ingredient (iii) as set out at paragraph 12, namely that the conduct or its direct consequence was either known to, or had the potential to become known to, at least one other person in the military community.

It was contended by Mr Mably that this additional ingredient was an aspect of the requirement to prove the conduct was prejudicial. If the conduct was not known to at least one other person in the military community, it could not as a matter of common sense be said to be conduct which had the character of being prejudicial to good order and military discipline. Although it could be accepted that prejudice could be assessed by reference to the hypothetical effect on good order and military discipline, if there was no prospect of the conduct becoming known, such a hypothetical assessment would be artificial and would mischaracterise the conduct. The requirement, therefore, that conduct had the potential to become known was a requirement which focussed on the nature of the conduct. It did not place a premium on successfully concealing conduct.

We are unable to accept this argument. The judge was wrong in considering that the offence contained this additional ingredient. The words of the section are clear. It is for the Crown to prove the conduct in question and to prove that it is to the prejudice of good order and military discipline. That is an objective test to be undertaken by the tribunal of fact. In our judgement it is irrelevant that the conduct did not have the potential to become known to others within the military or that it was not in fact known until it was discovered on investigation. If a person takes the utmost precautions to conceal conduct so that it is unlikely to be discovered, the steps taken to conceal the conduct ordinarily would aggravate the prejudice that such conduct is likely to cause.

On the facts of the instant case no steps were taken to conceal the retention of top secret documents, but nonetheless the retention by the respondent of top secret documents on his personal computer was self evidently conduct that was unlikely to be discovered unless his computer was examined. However, if and when his computer was examined and his retention of the documents discovered, his deliberate and intentional conduct in retaining them was conduct that was, as we have set out, in flagrant dereliction of duty, a grave abuse of his position as a responsible officer and put at risk not only national security, but potentially the lives of fellow soldiers. No one could view his conduct in any other light. We simply cannot understand how the view could be taken that this was conduct that was not capable of being prejudicial to good order and military discipline. It is true that anyone would have been shocked, dismayed and disgusted at the respondent’s grave criminal misconduct, but that does not mean it was not also prejudicial to good order and military discipline as he had flagrantly abused his position as a serving officer and was not worthy of trust or respect, let alone command of men.

It is true, of course, that until discovery the conduct would be unknown, but the potential effect his conduct was capable of having as well as its effect on discovery are what mattered. The potential effect of possession of the ammunition (charge 2) and top secret documents (charge 4) were for the reasons set out of a particularly grave character. The effect on discovery was aggravated in part by the period of time over which the conduct was carried out undiscovered and by the reason of the respondent’s deliberate and intentional conduct in retaining the ammunition and documents.

We would add that if the judge had considered the decision in Dodman to which he was referred, he would have appreciated that the conduct of Squadron Leader Dodman was conduct that was unknown until discovered. That rightly made no difference to whether an offence under s.69 had been committed.

The fact that such conduct is capable of amounting to conduct to the prejudice of good order and military discipline appears in any event from the passage in the ruling of the judge which we have set out at paragraph 15 above. It is difficult to understand how, if as the judge accepted, on discovery there would have been little respect left or confidence in the respondent and his ability to command would have been compromised, his conduct cannot have amounted to conduct which was prejudicial to good order and military discipline. The fact that ordinarily he would also have faced a charge for a substantive offence under the Official Secrets Act could have made no difference to the prejudicial effect of his conduct on good order and military discipline.

Thus, in our view, not only was the judge wrong in holding that the offence contained this additional ingredient, but even if it did, it was plainly met on the facts of this case.

The mental element

As we have already set out at paragraph 8, the mens rea or mental element of the offence was considered by this Court in Dodman. It is clear from Dodman, a decision binding on us and with which we respectfully agree, that the offence is one of basic and not specific intent.

It appears that the judge, despite being referred to Dodman, added a requirement of proof of specific intent, as ingredient (iv) set out at paragraph 12 above required the Crown to prove that the respondent had at least foreseen that the conduct or its consequences would or might become known to at least one person in the military community.

An additional requirement of specific intent?

Mr Mably, although accepting that this appeared to amount to a requirement of mens rea beyond that identified in Dodman, submitted that the mens rea requirement put forward by the judge was of an entirely different nature. It was not concerned with a fault based specific intent but directed at the defendant’s state of mind in relation to the context of the conduct. The requirement had the effect of confining the offence under s.69 to its proper ambit, as the reach of the offence would otherwise be exorbitant as it would capture conduct even though such an eventuality was neither intended nor foreseeable. The example was given of an officer keeping a secret diary in which he confined his private thoughts on his men and fellow officers; if then, contrary to the author’s intention and contrary to that which was foreseen and foreseeable, such a diary was discovered, the officer should not be guilty of an offence under s.69. We observe that s.69 was not intended to prohibit this kind of private conduct but to prohibit conduct which had a service context.

We cannot agree with this submission. There is nothing in the statutory language that imposes such a requirement. There is a simple question of fact in each case which must be objectively determined on the evidence. Has the Crown proved that the conduct is to the prejudice of good order and military discipline? If on the evidence the conduct was not capable of amounting to conduct which was to the prejudice of good order and military discipline by reason, for example, of its private nature, then it would be open to a judge to rule that no offence was committed. Similarly if there was a dispute as to whether such conduct did in fact amount to conduct which was to the prejudice of good order and military discipline, it would be for the finders of fact to determine whether it was. The issue of whether the conduct is to the prejudice of good order and military discipline does not depend upon the knowledge or intention of the defendant. The test is an objective one. The interpretation advanced by the judge would, if right, lead to the exoneration of any person whose conduct, although in fact to the prejudice of good order and military discipline, had been carried out with the intention that he would not be found out. Parliament can never have intended that a person in the military could commit misconduct provided that the person did not intend to be found out.

Is the offence of so wide an ambit so as to be contrary to Article 7 of the Convention?

At one stage in his ruling, the judge stated that on the Crown’s submission as to the ambit of s.69, s.69 would be given a hopelessly wide ambit.

In our view in the light of the decision of this Court in R v Misra [2005] 1 Cr App R 21, the decision of the House of Lords in R v Rimington [2006] 1 AC 459, and the decisions of the Strasbourg Court in Handyside v United Kingdom (1979-1980) 1 EHRR 737 and Kokkinakis v Greece (1993) 17 EHRR 397, it is clear that the offence under s.69, containing as it does the four ingredients we have set out, satisfies the principles of legal certainty.

In our view, therefore, the decision of this Court in Dodman set out clearly the ingredients of the offence and it was the duty of the judge to have followed that decision. The judge was, in our view, therefore wrong in the ruling he made and there was a case to answer in respect of each of the charges under s.69.

As we have mentioned at paragraph 16 above, the judge commented on whether the course followed by the Crown was appropriate. He rightly accepted that the form of the charge was the responsibility of the prosecutor. He considered that where a difference arose between a judge and a prosecutor about the appropriate charge, the difference was normally as to the level of charge; a judge after enquiry should, in his view, accept the position taken by the prosecutor. In the present case, he stated his concern was directed not at the level of charge, but the form of the charge which required him to determine sentence by reference to the minimal prejudice to good order and military discipline that would have been caused by the fact the respondent’s possession of the ammunition and the top secret documents would have been unknown to anyone other than the Royal Military Police. He concluded:

“This in my judgment does not come anyway near the true gravamen of conduct that involves his accumulating this material in the way he did over numerous occasions within a 5 year period; likewise charge 2. I have drawn this matter to the attention of the prosecution in what I regard as the clearest possible terms. It has not been suggested to me that the position I take is erroneous or in some way misconceived. The consequence is obvious. Sentencing for the conduct laid before the court in accordance with its true gravamen and so on the merits is precluded from the court’s remit.”

The position in the courts

In prosecutions before the courts of England and Wales, the course that must be followed where the judge considers that the decision of a prosecutor on charge is erroneous is clear. As is laid down in what are known as the Farquharson Guidelines (published in 1986), if a prosecutor invites the judge to approve the course he is going to take he must abide the judge’s decision. If the prosecutor does not invite the judge’s approval of his decision, it is open to the judge to express his dissent to the course proposed and to invite the prosecutor to reconsider the matter. If, after reconsideration and discussion, the judge remains of the opinion that the course proposed might lead to serious injustice, then the judge may decline to proceed until there is consultation either with the Director of Public Prosecutions or the Attorney-General as may be appropriate. If a defendant or a victim of a crime seeks to challenge a prosecutor’s decision, then the decision is subject to judicial review in carefully circumscribed circumstances: see Sharma v Brown-Antoine [2006] UKPC 57, [2007] 1 WLR 780, R v DPP ex parte C [1995] 1 Cr App R 136. There is also available a right to seek a review of a prosecutor’s decision by a more senior prosecutor: see R v Killick [2011] EWCA Crim 1608.

Outside these well known and clearly circumscribed procedures, the decision of a prosecutor is final. Given the prosecutor’s independent position within the executive branch of the State and the position of the judiciary as a separate branch of the State, as the authorities explain, there are good constitutional reasons why a judge must abide the decision of the prosecutor once the methods described have been exhausted.

The position in the Courts Martial

In the system of military justice the position is in fact similar although this may not be as widely known. Although the Armed Forces Act does not make provision for the superintendence of the service prosecuting authorities, it was made clear by the Ministry of Defence in a written answer on 9 January 2006 that Her Majesty’s Attorney-General superintends the service prosecuting authorities. This is the manifestation of the general constitutional principle that the independence of prosecutors as part of the executive branch of the state is subject in the case of all prosecutors to accountability to Parliament through the Attorney-General.

It is therefore clear that if in the military courts a judge does not approve of a course that a military prosecutor intends to take, the proper course for the judge is to ask for the matter to be referred either to the Director of Service Prosecutions, the equivalent to the Director of Public Prosecutions, or to the Attorney-General as may be appropriate.

We well understand the concerns that the judge had in this case in relation to the way in which the charges had been preferred. The offences were very grave offences under the ordinary criminal law. He was also entitled to consider the question of his sentencing powers. In our view the appropriate course for the judge to have taken in this case was to have asked for the matter to be referred in the manner we have suggested to the Director of Service Prosecutions or the Attorney General rather than to have refused to accept the pleas, to have insisted upon a trial and then to have made a ruling which ignored the binding decision of this court.

Although it is not for us to comment on the Crown’s decision to prefer charges under s.69, we would add that in the light of our decision on the construction of s.69, the judge was wrong in the view he took as to the effect of the conduct he could take into account. He was entitled to look at the conduct and its potential consequences over the entire period during which the respondent had taken and retained possession of the ammunition and the top secret documents. Although each charge carried a maximum sentence of two years imprisonment, as the conduct was dissimilar and on distinct occasions, it would have been right to consider the imposition of consecutive sentences.

We therefore allow the appeal.

We ourselves have not enquired whether there were wholly exceptional circumstances which entitled the military prosecuting authorities to have taken the course they have in this case. It was not within the ambit or subject matter of the appeal. Moreover, given the fact that the respondent is being tried upon charges under s.69, and that, in the light of our ruling, he has a case to answer on those charges where the powers of the court are, on the unusual facts, substantial, it is far too late to consider whether charges for substantive offences were in fact the charges that should have been brought on a lawful exercise of the prosecutor’s discretion. That step should have been taken at the plea and case management hearing and the request to the Director of Service Prosecutions or the Attorney-General should have been made at that stage.

In the light of the pleas of the respondent, it is to be anticipated that when the trial continues, as we direct, there can only be one outcome. In the event of that outcome, we observed at the conclusion of the hearing when giving our decision that it would not be appropriate for the judge to deal with questions of sentencing. We say that not because we have any doubt but that he would approach the matter fairly in accordance with the decision of this Court, but because in the light of observations he has made an impartial and independent observer could not conclude that justice would be seen to be done. The interests of justice therefore require that another judge hear the proceedings in relation to sentence at a different court martial centre.