Townshend, R v

LORD JUSTICE HOLROYDE: This is an appeal by leave of the single judge against the decision of the Court Martial on 3 March 2017 ordering that Flight Lieutenant Townshend be dismissed from Her Majesty's service and imposing a sentence of 4 months' imprisonment suspended for 12 months.

The appellant was 49 years old at the date of the events which led to that sentence. He had served in the Royal Air Force for many years and was a highly experienced pilot. On 9 February 2014 he was piloting an RAF aircraft carrying nearly 200 passengers and crew from England to Afghanistan. Another experienced officer, Flight Lieutenant Jones, was the co-pilot.

The appellant had with him his camera, and in the course of the long flight he used it to take a number of photographs looking out from the cockpit. The taking of photographs by RAF aircrew was not forbidden and it was common knowledge, including amongst senior officers, that on occasions some pilots did take photographs from the cockpit during flight. There was, however, expert evidence at trial, not challenged in this respect on behalf of the appellant, to the effect that a pilot should not take photographs if he was alone on the flight deck because at such a time he should be entirely focused on the control of the aircraft, notwithstanding that the autopilot system was engaged.

The expert evidence to that effect was given by a civilian pilot, Captain Robert Lawton. He also gave evidence that the practice of taking photographs from the cockpit at all by flight crew was, in his phrase, "frowned upon" and one of the matters to which he pointed was that a camera, or anything else that should not really be on the flight deck, was a potential problem because it could fall into a position where it obstructed the controls.

After the appellant had finished taking photographs the camera was at the side of his seat. There was, we understand, some issue at trial as to whether the appellant had put it there or whether it had been on a shelf or ledge from which it had fallen. But in our view the distinction matters not. What mattered was that the camera was in a position where it could come into contact with a side control stick, a function of which is to engage or disengage the autopilot.

It seems that the appellant was in the habit of positioning his arm rest at a particular angle which was thought to be unconventional and perhaps undesirable. There came a point when the appellant altered slightly the position of his seat. When he did so the camera made contact with the control stick but only moved it very slightly. Just under two minutes later the appellant again adjusted his seat. The camera again came into contact with the side control stick. This time it nudged the control stick forwards. As a result the autopilot was disengaged. This caused the aircraft to go into a steep dive. It fell some 4,400 feet in about half a minute. The fear experienced by those on board can readily be imagined. With the assistance of Flight Lieutenant Jones, who was returning to the cockpit after being away for a time stretching his legs, the appellant managed to regain control of the aircraft. A May Day call was put out and the aircraft diverted to an airport in Turkey. The sudden dive of the plane caused a loss of gravity which resulted in both physical and psychological injuries amongst those who were on board.

In his sentencing remarks Assistant Judge Advocate General Large ("the Judge Advocate") summarised the consequences in these terms at page 19A:

There were also serious financial consequences. Inevitably the incident led to a detailed investigation, itself an expensive undertaking. The repairs to the aircraft damaged by the free movement of those within it cost a substantial sum. More significantly, a total of six aircraft of similar design were grounded for nearly two weeks because the RAF at that stage could not be sure of the cause of the sudden and dramatic loss of height. It was necessary for other aircraft to be hired in to replace those which were grounded.

In all, the cost to the RAF, in financial terms, amounted to many millions of pounds. There were also other consequences. As the learned Judge Advocate said at page 19D:

The appellant was, of course, required to provide material including his camera to those enquiring into the causes of the incident. At the trial the Board found as a fact that before doing so, the appellant first removed from the camera the photos which he had taken from the flight deck, and that he had done so because he knew that his use of the camera when alone on the flight deck was unprofessional. Mr Price, on behalf of the appellant, accepts that the Board was entitled to make that finding. He submits, however, and in our view correctly, that the unprofessional conduct in taking photographs when alone on the flight deck was not part of the act of negligence which led to the sudden loss of height of the aircraft.

In addition to the matters relating to the camera, the appellant came under suspicion of making a false record for the purposes of the service investigation and also for giving false testimony under oath to that investigation. As a result, he was charged, after some time, with a total of four offences: one of negligently performing a duty contrary to section 15(2) of the Armed Forces Act, one of making a false record contrary to section 18(1) of that Act and two of the military offence of committing the civilian offence of perjury.

From an early stage the appellant accepted his responsibility for the incident and when he was charged with the section 15 offence he entered a guilty plea to it at an early stage. Thus it was that on 6 February 2017 he pleaded guilty to a charge of negligently performing a duty in these terms, namely that he negligently performed his duty as set out in a schedule which read:

The appellant pleaded not guilty to the other three charges which we have mentioned and at the conclusion of his trial on 1 March 2017 he was acquitted of them. He therefore fell to be sentenced only for the charge of negligent performance of a duty which he had admitted.

The Judge Advocate General has issued guidance on sentencing in the Court Martial. This is a substantial and detailed document, a copy of which has helpfully been provided to the court. It refers to provisions in the Armed Forces Act 2006, in particular section 237 which states the main purposes of sentencing and section 239 which requires the Court Martial to take into account the stage of proceedings at which a guilty plea is entered. By section 164 of the Act a range of sentences is available to the Court Martial. It is not necessary to list all of them, but they include imprisonment and lesser forms of sentence such as may be imposed by the civilian courts. The list also includes sanctions ranging from dismissal to less severe measures such as a loss of seniority for a commissioned officer.

The section 15 offence carries a maximum sentence of 2 years' imprisonment. There are no formal sentencing guidelines published by the Sentencing Council or its predecessor body in relation to that offence. However, in relation to a number of offences including the section 15 neglect of duty offence, the guidance on sentencing to which we have referred includes helpful assistance as to sentencing levels. As Mr Phillips on behalf of the respondent pointed out, this guidance does not have statutory force and is not binding. It nonetheless represents sensible guidance to assist the Court Martial in sentencing.

The offence with which this court is concerned is dealt with at section 6.11 of the guidance on sentencing. Paragraph 6.11.1 makes the point that the charge can cover a wide range of conduct, from the very minor to the most serious where failure or negligence leads to serious injury or loss of life. Paragraphs 6.11.2 and 6.11.3 respectively list a number of aggravating and mitigating factors which may be found. Paragraph 6.11.4 states as follows in relation to what are called "entry points" for sentencing:

After reference to the sentencing guidelines issued by the Sentencing Council, of which we repeat none were applicable to the present offence, paragraph 2.15 of the guidance continues:

In accordance with conventional sentencing principles it was necessary for the Court Martial in the present case to assess the appellant's culpability and the harm caused. We have already referred to that which the learned Judge Advocate said about the harm which was caused. In relation to culpability, at page 18 of his sentencing remarks he said this:

As to the mitigation which had been advanced on the appellant's behalf, the court took into account the appellant's long and unblemished career as an RAF pilot. The Judge Advocate said at page 19G:

Then at page 20B the Judge Advocate, having indicated that certain previous cases which had been put before the court were not in the end of any assistance, said this:

The sole ground of appeal advanced by the appellant is in these terms:

Mr Price presents the argument on the appellant's behalf in this way: he accepts that the Court Martial was entitled to find a high degree of culpability and to reject his own submission to the court that the case could fairly be regarded as one of momentary inattention. He emphasises however that the finding was one of negligence, tested by the standard to be expected of a reasonable serviceman having similar training, knowledge and experience, and not a finding of intentional default or of recklessness. He accepts that the negligent act had very serious consequences but emphasises the mitigation which he advanced below on the basis of the "just culture" principles referred to in the grounds of appeal. That is a reference to the manual of air safety published by the Military Aviation Authority in which the principles - which we will refer to by way of shorthand as the just culture principles - are set out.

The essence of those principles is that it is important in the interests of safety that errors and mistakes compromising safety should be disclosed and shared so as to avoid repetition in the future. The principles are intended to produce an environment which fosters candid and honest reporting of incidents and the principles draw a clear distinction between negligence and higher forms of misconduct.

Mr Price particularly relies on a passage which states that all personnel must understand that honest errors can be made and that a just culture is the cornerstone in ensuring that such errors are dealt with fairly and appropriately. He recognises that the statement goes on to indicate that it is not a blameless culture and that deliberate violations of rules and regulations could result in disciplinary action.

Mr Price further relies on a passage which indicates that all incidents will be investigated by an approved occurrence investigator and which continues in these terms:

Mr Price then points to a definition section which indicates that for these purposes "where neither actions nor consequences were as intended by those involved the actions would be considered as errors."

The just culture principles were the subject of evidence given at trial by the expert witness, Mr Lawton, who confirmed the importance, from a safety perspective, of the open reporting of incidents. His evidence is relied upon as showing that the majority of mistakes made by aircrew are cases of an unintentional lapse from the required standard rather than a deliberate or reckless act. Mr Price particularly relies on the witness’s agreement in cross-examination that when mistakes are made, it is important that those who have made them should be able safely to report the matter.

Building upon these principles, Mr Price says to the court that the picture would of course have been very different if the appellant had been convicted of the additional three charges. But having been acquitted of those charges, Mr Price submits that the Court Martial in sentencing for an act of negligence should have considered the just culture principles and should have explained why it was considered necessary to impose the sentence which was in fact imposed. Mr Price suggests that the absence of any explicit reference to the just culture principles gives rise to a legitimate inference that the points he advanced in that regard were simply not considered or were given insufficient weight. More generally, he points to the absence from the sentencing remarks of any explicit setting out of the chain of reasoning which led the Court Martial to conclude that the sentence must be as was imposed.

Mr Price sets these submissions in the context of more general matters of mitigation such as the very substantial period of time which passed before the proceedings could be concluded, and as to the good character of the appellant and the very favourable appraisals which he received from his senior officers, including when this incident and the investigation into it was well known.

Mr Phillips, whose very substantial experience in these matters has been of great assistance to the court, emphasises that the just culture principles do not mean that there is a blameless culture. He submits that the principles are not relevant to the duty of the Court Martial to apply conventional sentencing principles when assessing the seriousness of offending in a military context. He submits that the court clearly did consider issues of operational effectiveness, because specific reference was made to the grounding of the fleet of six aircraft and to the temporary cessation of certain operations in Afghanistan, which were very serious consequences of this incident.

As to the submission made by Mr Price below, that an appropriate sanction would be one of the two forms of reprimand available to the Court Martial, Mr Phillips argues that in the circumstances of this case that would have been an inadequate form of punishment. Having regard to the appellant's age, rank and prospects so far as any further promotion were concerned, it would have imposed very little penalty upon him and would have served as very little deterrent to others who might be tempted to be less than punctilious in the discharge of their service duties.

He submits that this was a case properly found to be of both high culpability and high harm, and that the sentence was not manifestly excessive. He reminds us of the important point that the Board comprised part of the decision-making body as to sentence together with the learned Judge Advocate. Thus, the sentence was imposed by a body which collectively had experience not only of the correct legal principles but also of important service considerations.

Following on from that point, we remind ourselves of the well-known principles as to the position of this court on appeal. A right of appeal against sentence to the Court Martial Appeals Court was conferred in the late 1990s by the Armed Forces Act 1996. In the first appeal to come before this court, that of R v Love [1998] 1 Cr App R 458, the court laid down important principles. At page 5 Simon Brown LJ giving the judgment of the court said this:

It is relevant to note that at page 6, in a passage upon which Mr Phillips laid emphasis, Simon Brown LJ quoted the following from MOD guidance as to the sanction of dismissal:

We should also refer to the case of R v Glenton [2010] EWCA 930 in which Lord Judge LCJ said this at paragraph 15:

We are grateful to both counsel for the help they have given us with their careful submissions. To those submissions we have given most anxious thought.

There may no doubt be cases in which the application of the just culture principles results in a decision that a prosecution should not be brought in relation to a particular negligent act or omission. However, as Mr Price readily acknowledges, that is not a matter which concerns this court at this stage. It is accepted that the prosecuting authority was entitled to bring a prosecution in the circumstances of this serious case. Mr Price also concedes, as we have indicated, that the Court Martial was entitled to find that this was a case of high culpability. In our view that is a realistic concession. Although this was an isolated lapse in the sense that it was an isolated departure from usual the high standard of performance by this experienced pilot, it was not a momentary lapse. It was carelessness in the context of his having used the camera in circumstances in which it should not have been used. Thus it was a case in which the appellant had brought into the cockpit something which could serve as an avoidable distraction, and he had caused or permitted that item to be in a position where it could, and did, unexpectedly disengage the autopilot system, thereby imperilling the lives of all those on board. Thus, it is rightly conceded that this is not a case of a mere momentary loss of attention.

However, we accept Mr Price's submission that it does not follow from what we have just said that the just culture principles cease to have any relevance to this appeal. He submits, and we accept, that they remain relevant in two respects. First, they make clear the need to recognise that a mistake may have serious consequences, but that if neither the relevant action nor its consequences were intended it may still be appropriate to regard the negligent act as an error notwithstanding the gravity of the consequences. Mr Price is correct to emphasise that although the Court Martial was entitled to make the findings it did, they were findings in relation to an act of objective negligence, not of intentional default or even of recklessness. Mr Price is therefore entitled to invite this court to consider what sentence would have been appropriate if there had been a finding of recklessness, given that in the view of the Court Martial what we will refer to as simple negligence necessitated both a suspended sentence of imprisonment and dismissal.

Secondly, the just culture principles emphasise the importance in the interests of safety of encouraging those who have fallen below the requisite standards to acknowledge and to report their fault so that lessons can be learned for the safety of others in the future. This point advanced by Mr Price does, in our view, introduce a need to balance two important interests which may pull in differing directions. On the one hand, there is a clear interest both of the services and of the public in ensuring operational effectiveness and discipline. On the other hand, there is an equally clear importance both for the services and of the public of encouraging openness where it is necessary in the interests of safety that open and frank disclosure should be made. We take the view that there is force in the submission made by Mr Price that, if both a custodial sentence and dismissal are found to be necessary in the circumstances of this case - involving what was, he submits, a comparatively venial act of negligence attended by very serious consequences – other pilots who have fallen below the requisite standard may be discouraged from being open about their errors.

We next have in mind what is common ground between Mr Price and Mr Phillips as to the penalty of dismissal. This is an additional penalty imposed by the Court Martial on top of the penalty of imprisonment. It is clear from the submissions of counsel that, whilst no doubt imprisonment will be attended by an order for dismissal where the sentence is of immediate effect and so renders the prisoner unable to perform his service duties, the same does not necessarily apply if a suspended sentence is imposed. Thus there is no necessary and automatic link between the decision of a Court Martial that an offence is so serious that a term of imprisonment must be imposed but can be suspended, and the separate decision of the court as to whether there must in addition be an order for dismissal. It cannot therefore be thought that where a suspended sentence of imprisonment is imposed, the question of dismissal can admit of only one answer and therefore requires no very detailed consideration.

In considering these points we have very much in mind the principles which we have quoted from the decision of this court in Love. We are acutely conscious of the need of this court to respect the expertise of the Court Martial.

We, in those circumstances, focus on the sentencing remarks which set out the reasons for the sentence imposed in this case. For the most part they are, if we may say so, commendably thorough and commendably clear. However, with very great respect to the learned Judge Advocate, they are silent about the chain of reasoning which led the court to conclude that both imprisonment (albeit suspended) and dismissal were necessary. As Mr Price says, there is no explicit reference in the sentencing remarks to the just culture principles. More significantly, in our view, there is no explicit reference to the reasons why that combination of penalties – undoubtedly a heavy combination - was necessary. Accordingly, when we look to the sentencing remarks to gain an understanding of the reasons why, in all the circumstances of this offence, that combination of penalties was necessary, we find that none is explicitly set out.

We are conscious, of course, that it may be said that to a great extent the relevant considerations are self-evident. This was an act of negligence justifiably found to have had high culpability which put at grave risk the lives of so many personnel. We do not doubt that, and nothing we say should in any way be taken as undermining the force of that point. But it is here, in our judgment, that it becomes important to remind ourselves that there is no necessary or automatic link between a conclusion that a prison sentence is unavoidable and a conclusion that the additional sanction of dismissal is also necessary. Again with very great respect to the Judge Advocate, we would expect to see reasons expressed for the imposing of both forms of sentence. Such reasons might of course be that either binding precedent or guidance pointed to such an outcome. But here nothing of that sort was stated, and nothing of that sort has been put before us. On the contrary, as we have indicated, the guidance published by the Judge Advocate General speaks of sanctions falling short of dismissal even for a serious example of the offence of neglect of duty under section 15 of the Act. We accept of course Mr Phillips's point that this is not binding authority. It is only guidance. But in the other paragraph which we have quoted, the guidance itself indicates the need to explain a departure from what, on the face of it, would be expected from an application of the guidance.

Reasons why what we have referred to as a heavy combination of penalties might be necessary might also be found in circumstances where the negligent conduct of a serviceman was so serious as not only to demand severe punishment but also to demonstrate that he was unfit for further service. But again, in the present case nothing of that sort has been said. On the contrary, the appellant's superiors, with full knowledge of the incident and of the investigation, made it clear by the terms of their reports that they not only contemplated his return to service but also recognised that he had valuable service to give in the future.

It seems to us that this was a difficult case in which the Court Martial was faced with the difficult task of weighing a comparatively brief act of negligence, carrying very serious consequences, against considerations including the long and unblemished service record of the appellant and the very favourable reports upon him by his superiors.

We well understand why the court came to the conclusion that a prison sentence was necessary. There can, in our judgment, be no possible criticism of that decision. The decisions of the Court Martial as to the length of that sentence and as to the reasons why the mitigation available to the appellant made it appropriate to suspend the effect of the prison term were entirely justified.

But we take a different view of the decision as to dismissal. We have already indicated that there is no explicit indication in the sentencing remarks of why it was felt necessary to add that additional penalty, nor is there any indication of consideration of lesser forms of service sanction which were available to the court, or any explanation of why all or any of them would not have been sufficient in the circumstances of the case. We bear in mind the submission made by Mr Phillips as to the reasons why a reprimand would not have been appropriate but that, with respect, was not the only alternative sanction which might have been considered.

In all these circumstances, very hesitant though we are to depart from the view taken by the specialist tribunal, we have come to the conclusion that this is, to use the words used in Love, a case in which we feel it necessary to correct what we perceive to have been an injustice. The injustice we perceive is that this very heavy combination of penalties was imposed in circumstances where it went beyond what was required for the purpose of imposing just and proportionate punishment, and where the reasoning which led to that conclusion has not been made explicit and, with great respect to the court below, is not apparent to this court on appeal.

We therefore allow this appeal to the following limited extent: we quash the order that the appellant be dismissed from Her Majesty's Service. The suspended sentence of imprisonment was, as we have just said, justified and is not open to any criticism and must remain in force.