R v BPR

THE VICE-PRESIDENT: In the Court Martial proceedings, the court exercised its power under Rule 153 of the Court Martial Rules to direct that the applicant should not be named. We are satisfied that it is appropriate for that position to be maintained. The case has accordingly been listed using as a cipher the randomly-chosen letters "BPR" in place of the applicant's name. Pursuant to section 11 of the Contempt of Court Act 1981, we direct that nothing may be included in any publication which names or may otherwise lead members of the public to identify the applicant. In any report of this hearing he must be referred to as "BPR".

The applicant pleaded guilty to an offence contrary to section 13 of the Armed Forces Act 2006 of breach of Standing Orders. He was sentenced to eight months' service detention and ordered to be dismissed from the Service. His application for leave to appeal against his sentence has been referred to the full court by the Registrar.

The applicant enlisted in the army at a very young age in 2008. He served with distinction. He was promoted, reaching the rank of a senior non-commissioned officer.

On 8 March 2022 his regiment issued a Standing Order in the following terms:

The applicant and his partner have a young son. Unhappy differences arose between them. His partner left him and returned with their son to her family home. The applicant wished to save his relationship. He applied for a career break in order to be able to spend more time with his partner and their child. The application was granted and his approved break began on 1 August 2023.

In applying for that career break, the applicant had made a written application on a standard form which included the following statements by him:

Unfortunately, the applicant's attempt to restore his relationship was unsuccessful. It seems he decided nonetheless to continue his career break. In breach of the Standing Order he went to Ukraine. He there served with the Ukrainian army in a training role.

This came to the attention of the applicant's Commanding Officer, who contacted the applicant. To his credit, the applicant immediately admitted where he was and what he was doing. He returned to the United Kingdom when told to do so in late November 2023 and upon arrest by the Royal Military Police he immediately said that he had been to Ukraine.

For reasons unexplained, nearly 12 months then passed before the applicant was charged with the section 13 offence. He pleaded guilty to that offence at the first opportunity.

The Judge Advocate General has issued guidance on sentencing in Service Courts. We shall refer to this for convenience as the GSSC. The current, 7^th, version applies to all sentences passed by a Court Martial on or after 1 January 2025 and is therefore applicable to this case.

The introductory paragraphs of the GSSC indicate at paragraph 1.2 that it is "designed not to be prescriptive but to provide an aid to consistency". At paragraph 1.4 it is said:

The GSSC includes offence-specific guidelines for sentencing offences contrary to section 13 of the Armed Forces Act 2006, an offence which carries a maximum penalty of two years' imprisonment. This guideline reminds sentencers that by section 237 of the 2006 Act, the purposes of sentencing to which Service Courts must have regard include the maintenance of discipline. The guideline notes that the section 13 offence covers a very wide range of forms of disobedience, ranging from the minor to the very serious. The guideline goes on to say this:

The guideline identifies "deliberate contravention" as a Category A high culpability factor, in contrast to "reckless contravention" which indicates Category B medium culpability.

As to harm factors, the rubric which precedes the list of factors indicative of particular categories says this:

Category 1 factors include:

At the outset of his remarks explaining the sentence, Assistant Judge Advocate General Legard indicated that the Board would treat the applicant as a man of previous good character. Judge Legard then said this:

Judge Legard went on to say that the applicant had chosen quite deliberately, and in direct contravention of the relevant Standing Order, to travel to the Ukrainian conflict zone and enlist with the Ukrainian army. By doing so, the applicant immediately became subject to the lawful commands of the Ukrainian Armed Forces. Judge Legard noted that although the applicant was in fact posted to a training unit, he had no choice but to answer to the Ukrainian chain of command:

Judge Legard went on to say why the Board rejected a submission on behalf of the applicant that he had been guilty only of a reckless contravention of the Standing Order:

The culpability was therefore assessed as falling within Category A. Harm, said the judge, was in Category 1 because the applicant's contravention of the Standing Order had not only placed him at significant personal risk,, but also had the potential to create significant security and reputational risks to the United Kingdom. The guideline therefore provided a starting point of 12 months' imprisonment, with a sentencing range of 12 months' detention to two years' imprisonment.

The Court Martial had been assisted by a pre-sentence report. The author of that report took the view, for reasons which were carefully explained, that the breakdown of the applicant's relationship with his partner, and the consequent loss of contact with his infant son, had caused the applicant very great distress and had negatively impacted on his mental health. The author of the report assessed the applicant as having made a series of poor decisions at a time when he was experiencing heightened emotional stress. She suggested that the applicant's behaviour in going to Ukraine had been a form of escapism, relating to a specific set of circumstances which were unlikely to be repeated as the applicant was now engaging with support for his mental health.

One of the several authors of most impressive character references and testimonials, Captain Rees, also regarded the applicant's decision to go to Ukraine as a consequence of the breakdown of his relationship.

The Court Martial also considered the character references and testimonials, saying that it was clear from them that the applicant was a highly respected soldier, held in very high esteem both for his professionalism and his integrity. The various character witnesses referred to him as a trusted and respected leader, as hard working and professional, and as having impressive skills as a chief instructor. There was a reference from the applicant's Commanding Officer, Lt Col Campbell which spoke in similar terms of high praise. All this amounted, said Judge Legard, to substantial mitigation.

Judge Legard explained the Board's conclusions as follows:

On behalf of the applicant, Mr Clark submits that the Court Martial did not apply the guidelines correctly. He submits there was no sufficient foundation for a finding of deliberate breach when the applicant had maintained that because of his career break he had genuinely believed that the Standing Order did not apply to him. His conduct, submits Mr Clark, was much closer to being a reckless contravention of the Standing Order. Mr Clark suggests that the Board may have reached the unjustified and unfair conclusion that the taking of the career break had been a strategy or ploy to enable the applicant to follow through a long premeditated plan to go to Ukraine.

As to harm, Mr Clark submits that the applicant endangered no-one other than himself. In all the circumstances, he submits, the offence should have been categorised under the guideline as B2, rather than A1.

Mr Clark further submits that the applicant should not have been dismissed from the Service. He draws attention to the very serious consequences of that penalty.

For the respondent, Wing Commander Lewis submits that the Court Martial correctly categorised the offence and reached an appropriate sentence. He reminds us that the GSSC in relation to dismissal emphasises the need for a Court Martial to determine whether the offence in question is serious enough to warrant such a sentence. He also reminds us of the familiar principles stated by this court as long ago as 1998 in R v Love (1998) 1 Cr.App.R 458, to the effect that whilst the Court Martial Appeal Court must correct any perceived injustice in a Court Martial sentence:

We are grateful to both counsel.

Like Judge Legard, we regard this as a sad case. The applicant has served his country well. The testimonials speak very highly of him as a soldier, as a leader and as a man.

We cannot, however, accept Mr Clark's submissions. The offence plainly did fall within Category 1A. We do not accept the submission that the Court Martial fell into error by wrongly ascribing to the applicant a long held plan to go to Ukraine. The passage which we have quoted from the sentencing remarks links the finding of premeditation to the series of deliberate acts which were needed, after the career break had begun, for the applicant to travel to Ukraine and enlist with the Ukrainian Armed Forces.

The applicant had applied for and been granted his career break knowing that he would still be a serving member of the armed forces under the Armed Forces Act and would remain subject to military law. He was aware of the relevant Standing Order. There was therefore a deliberate contravention of the Standing Order and the case was one of Category A high culpability.

Furthermore, for the reasons clearly explained by Judge Legard, the applicant placed himself at significant personal risk and could have caused significant security and reputational risks to the United Kingdom. The harm was therefore appropriately placed into Category 1.

True it is that the Court Martial, when considering the GSSC, is not under a statutory obligation such as applies under the civilian Sentencing Act 2000. As we have indicated earlier in this judgment, the GSSC itself recognises its status at the outset in the introductory remarks. But the guidelines published by the Judge Advocate General represent considered and authoritative guidance, and good reason is needed before a Court Martial could properly depart from them. We do not accept that the Court Martial here wrongly regarded itself as bound by the guidelines to take a particular course. In our view the Court Martial clearly considered the proper application of the guidelines, and indeed passed a sentence of service detention which was at the bottom end of the category range. It must of course be remembered that service detention is different from a sentence of imprisonment.

We fully accept of course that dismissal from the Service is a very heavy additional penalty. It is not however an improper double punishment. The Court Martial was obliged to consider whether this offence was so serious that that severe punishment was necessary. The Court Martial was clearly very well aware of the seriousness of the consequences for the applicant. But the deliberate contravention of the Standing Order by a senior NCO, who should have been setting an example to his men, in circumstances which could have caused very great difficulty to this country if he had been killed, wounded or captured, was properly treated as a very serious offence. The Court Martial was entitled to conclude that dismissal was unavoidably necessary in those circumstances and we can well understand why that conclusion was reached.

For those reasons, we can see no arguable ground on which this sentence can be said to be manifestly excessive. The application for leave to appeal against sentence therefore fails and is refused.