Khan v Royal Air Force Summary Appeal Court

This is an appeal from the decision of the RAF summary appeal court by way of case stated to the Divisional Court. It concerns the conviction of the appellant, Leading Aircraftsman Mohisin Khan, a reservist recalled for service in January 2003 in the run-up to the invasion of Iraq, for the offence of being absent without leave. His defence and/or explanation, was that he was a Muslim conscientious objector. He was sentenced to seven days loss of privileges. He appealed to the RAF summary appeal court, which ruled that his conscientious objection, although accepted as genuine, was no defence. He now appeals to this court on the ground that his rights of belief, conscience and religion under article 9 of the European Convention of Human Rights and Fundamental Freedoms (the “Convention”) have been infringed, and that his conviction and punishment were wrongful. Soon after his conviction, however, he was discharged from the service on administrative grounds.

Article 9 provides:

“1.

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2.

Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

The case stated has set two questions for this court:

“(1)

Whether, in proceedings under the service discipline Acts (the Army Act 1955, the Air Force Act 1955 or the Naval Discipline Act 1957) for the offence of desertion or absence without leave, a genuine conscientious objection, general or particular, to the continued performance of military service can amount to a defence in law under domestic legal principles or the European Convention on Human Rights.

(2)

Whether, in the particular circumstances of Leading Aircraftsman Khan’s case, the Royal Air Force authorities acted in breach of either domestic legal principles or the European Convention on Human Rights by omitting to bring to his attention at the time he was recalled for service the fact that if he had a genuine conscientious objection to renewed service he had a right to claim exemption to recall as a conscientious objector.”

The facts of the case are most conveniently set out in the summary appeal court’s own words:

“1.

The appellant, who is a Muslim, voluntarily enlisted in the Royal Air Force on 8 December 1999. He joined the Medical Assistant trade. Members of the Medical branch have non-combatant status. His engagement was for 9 years service with 6 years reserve.

2.

On 15 January 2001 the appellant applied for Premature Voluntary Release. In support of that application he indicated his unhappiness with the Medical Assistant trade and his wish to re-muster or to re-enlist in an Information technology related trade.

3.

On 27 March 2001 the appellant applied to re-muster in the trade of Eng tech Av. That application was refused both on the grounds of insuffcient service in his existing trade and because he did not have the requisite academic qualifications.

4.

On 24 April 2001 the appellant was discharged from the Royal Air Force in accordance with his application for Premature Voluntary Release. He thereby became a reservist and for six years liable to recall as such under the provisions of the Reserve Forces Act 1996.

5.

In June 2001 the appellant enquired about re-enlisting in the Royal Air Force.

6.

As a result of an order issued by the Secretary of State on 7 January 2003 under s.54 of the Reserve Forces Act 1996, the appellant was recalled for service. The papers he was sent included a list of grounds upon which a reservist might apply to have his call up revoked. That list did not include grounds of religion or conscience.

7.

On 20 January 2003 Her Majesty’s Government announced that British forces would be deployed to the Gulf in preparation for the possible use of force against Iraq.

8.

The appellant reported as required by his call-up letter at the Reservist Training and Mobilisation Centre at RAF College Cranwell on 27 January 2003. During the induction process he was interviewed by Squadron Leader Gavin. He applied, with Squadron Leader Gavin’s help, to have his call up revoked on the grounds that he was the principal carer of his 53 year old widowed and mentally disabled mother and was needed to help in the family’s restaurant. No mention was made by the appellant of any religious or conscientious concerns. The appellant, along with other Medical Assistant reservists who had been called up, was told that he would not be required to serve overseas unless he volunteered to do so. Instead he would be required to fill the place of someone who had been sent to the Gulf. His application for revocation was rejected. At his own choice he was posted to RAF Honington, the nearest place to his home.

9.

The appellant reported for duty at RAF Honington. He was interviewed by Flight Sergeant Penfold who, on being told by the appellant that he was a Muslim and required by his faith to pray daily at 1315, arranged for the appellant to be able to do so and for an office to be made available to the appellant for that purpose. He made no mention to Flight Sergeant Penfold at that time of any conflict between his duties and his religion other than the requirements to pray.

10.

After about two days at RAF Honington the appellant went to the Defence Services Medical Training Centre, Keogh Barracks, for two weeks refresher training in his medical duties. Those duties were concerned with medical administration and some clinical work in both of which he would be supervised.

11.

The appellant was required to report for duty at the Medical Centre, RAF Honington, at 0830 on 24 February 2003. He failed to do so. He did not have permission not to come for work. Attempts to contact him that day were unsuccessful despite messages being left asking him to ring the Medical Centre. On the afternoon of the 25^th Flight Sergeant Penfold succeeded in speaking to the appellant on his home telephone. The appellant told Flight sergeant Penfold that he was not returning because to do so was against his religion: he did not want to fight against members of his own religion. Flight Sergeant Penfold told the appellant that it was in his best interests to come back to the station to sort it out.

12.

Flight Sergeant Penfold was not aware of any special procedures for dealing with members of the Islamic faith nor of the procedure to be taken by those who wished to assert that they should be exempted from service on the grounds of conscience. He raised the matter with the Chief Clerk but not with anyone else. However his absentee reports showed the reason given to him by the appellant. At some point, although it is not clear when, Flight Sergeant Penfold told the appellant that there was no precedent for a Muslim objecting to serve.

13.

On 26 February at about 1000 Cpl (now Sgt) Macdonald spoke to the appellant on the telephone and advised him that it was in his best interests to come back and air his grievances in person to the appropriate authority. The appellant replied that he was willing to go to jail rather than come back to base. It was against his religion. He did not want to be sent off to kill his brothers.

14.

That afternoon Cpl Macdonald spoke again to the appellant on the telephone. The appellant remained completely adamant that he would not return because of his religious beliefs.

15.

On 3 March Flight Lieutenant Fulcher, OC P1, that is the officer on the station responsible for administrative support for all disciplinary matters, spoke to the appellant on the telephone. He pointed out to the appellant that he was still subject to service discipline and that he was committing an offence against Air Force law. He told the appellant that he should return and discuss his concerns in person; that there were proper procedures to follow to claim conscientious objection on the grounds of religious belief; and that he may have grounds for making such a claim. That could only be done face to face. The appellant said that he could not return immediately but would do so on Wednesday, 5 March. Flight Lieutenant Fulcher told him to get back as soon as possible.

16.

On 4 March Flight Sergeant Penfold again spoke to the appellant and told him that he should return to work the next day. The appellant did not do so and as a result was arrested by the civil police, handed over to the RAF Police, taken to RAF Honington, interviewed under the provisions of the Police and Criminal Evidence Act 1978, and reported for the offence of being absent without leave contrary to s.38 of the Air Force Act 1955.

17.

During that interview the appellant admitted that he had been absent without leave and should have been on duty. He claimed that the reasons he went absent were that when he first joined as a medic he was not allowed to do his religious duties, he felt that he was hated, that he therefore decided just to leave the RAF, and that “when they called me back up recently…they weren’t there to help me when I wanted help, and now they’re calling me back for their help, but they should understand that I’m a Muslim and this war thing I can’t do it because of my religious beliefs”…

18.

The appellant further stated that his mother was, and had been for some years, mentally disabled.

19.

Subsequent to the PACE interview the appellant was seen by Flight Lieutenant Fulcher. The issue of conscientious objection was discussed. Flight Lieutenant Fulcher, who had obtained a copy of the rules as set out in Air Publication 3393, Volume 5, Leaflet 113, which had not been difficult for him to find, gave the appellant a copy of the application form which is annexed to that leaflet and advised him to speak to a minister of his own religion, complete the form and return it. That leaflet sets out the procedure for members of the Royal Air Force who wish to claim release on the grounds of conscientious objection.

20.

On 18 March United Kingdom forces, in coalition with forces of the United States, invaded Iraq.

21.

The appellant has not submitted an application for discharge on the grounds of conscientious objection.

22.

The appellant gave evidence. He told us that he had been brought up as a Muslim in a Muslim family…

23.

As a teenager he was not particularly punctilious in following the observances of his religion. He wanted to join the Royal Air Force and to do so did not conflict with his religion. Once in the service he did find difficulties and it was not easy to carry out his religious observances such as the requirements to fast…

25.

The appellant told us, and we accept, that on leaving the RAF his religion became of greater importance to him. He started praying more regularly. He attended Friday prayers in the mosque when his employment as an insurance salesman permitted…

26.

When he received his call up papers he was scared of what would happen if he did not comply. He did not want to do so but his family urged him to.

27.

The appellant told us, and we accept, that he believed that a war against Iraq would not be right. He did not believe that his religion allowed it. He was, however, unable to articulate why.

28.

He did not think of raising his religious concerns at the time or when he attended the call up at RAF Cranwell. He said that he did not know if he could stand up and say this is wrong. His concerns came up too late. It was at the weekend before he went absent that it hit him 100%, that as a Muslim he felt that this was wrong. Before then he just did not get up enough courage to say so.

29.

The appellant also told the court, and we accept, that he did not realise that as a member of the Medical Assistant trade he was a non-combatant.

30.

We find, having heard his evidence, that the reasons why the appellant refused to report for duty at the end of the weekend leave on 24 February were a combination of factors which included concerns for his family, especially his mother, dislike of his trade, and a genuine and deep belief that the impending invasion of Iraq was wrong and that to be in any way a participant in it would be contrary to his religion. Without that belief he probably would not have refused to return to duty.

31.

We find that he could have reported for duty when required, and that he did not do so despite the telephone calls we have recounted, and that he was finally arrested on 5 March.

32.

We find that he did not know, at least until his telephone conversation with Flight Lieutenant Fulcher on 3 March that there was any possibility of claiming that his conscience did not allow him to obey the particular call up notice he had received, and that it was not until his interview with Flight Lieutenant Fulcher on 5 March that he was made aware of the formal procedure for making such a claim.”

To these facts we would add, as is common ground, (i) that the appellant’s call-out papers were served on him (pursuant to the Secretary of State’s order) on 15 January 2003; (ii) that his call-out papers included information as to his right to apply for exemption on various grounds, including “any other grounds which the Adjudication Officer ought to consider for compassionate reasons”, and provided a telephone number (among other helpful details) where the Adjudication Officer could be contacted; and (iii) that the appellant was served on 18 March 2003 with case papers on the charge of being absent without leave from 24 February to 5 March 2003, and summarily convicted on that charge on 21 March 2003.

It may be noted that these facts demonstrate that, despite the invitation in the call-out papers to raise with the Adjudication Officer any ground for claiming exemption from recall for compassionate reasons, and an interview with Squadron Leader Gavin on induction at RAF Cranwell on 27 January 2003 as a result of which the appellant applied, with Squadron Leader Gavin’s help, for exemption from recall on family grounds, and a further interview with F/S Penfold on reporting for duty at RAF Honington, at which time the appellant raised the question of Muslim prayers, he made no mention of his conscientious objection until his telephone conversation with F/S Penfold on 25 February 2003. Which is not to say that his objection was not genuine, for it was accepted as such by the summary appeal court.

In its case stated the court expressed the following opinions (at para 8):

“(1)

There is no difference in principle between the position of a reservist who has been released from the service and is then recalled and that of a conscript who is called up for service.

(2)

The authorities lead to the conclusion that Article 9 of the European Convention on Human Rights presently gives no right of refusal of compulsory military service on grounds of conscience or religion.

(3)

Therefore the claim to such a right cannot provide a defence to breaking a law which has been democratically passed and is not disproportionate to the right of the state which the law seeks to enforce.

(4)

Given the importance in any armed force of attendance for duty when required as a fundamental of discipline, there are no grounds for saying that the law in relation to absence without leave is disproportionate.

(5)

Consequently, even a genuine conscientious objection or religious belief that the required military service is wrong cannot in law provide a defence to a charge of absence without leave.

(6)

The argument that there was a breach of Leading Aircraftsman Khan’s rights under Article 9 in failing to inform him that he had a right to claim exemption as a conscientious objector cannot be sustained.

(7)

As the allegation of discrimination amounting to breach of Article 14 of the European Convention on Human Rights cannot stand alone without a breach of Leading Aircraftsman Khan’s rights under Article 9, it was not necessary for the court to consider whether there had been discrimination against serving members of the Islamic faith in relation to operations against Iraq.”

The court then concluded (at para 9):

“The court accordingly ruled that the applicant’s reasons did not provide him with a defence in law to the charge of being absent without leave. The court therefore dismissed his appeal…

On behalf of the appellant Mr Nicholas Blake QC submitted (1) that genuine conscientious objection was capable of engaging article 9(1) of the Convention, provided there was an interference with the manifestation of such conscientious belief – he acknowledged, however, that there was no “absolute” right to conscientious objection, since the state was also capable of justifying interference under the provisions of article 9(2); (2) that the appellant had a genuine conscientious objection at least from the time of his recall for service on 15 January 2003; (3) that his recall interfered with the manifestation of that belief; (4) that the state failed to justify its interference because (a) there was in fact no legal provision for a reservist to claim exemption from recall on the ground of conscientious objection; and (b) even if there was, it was inaccessible and the appellant did not know about it; (5) that the appellant’s prosecution, conviction and punishment were therefore in breach of article 9; and, perhaps, (6) that the appellant had in these circumstances a defence to the charge against him.

We have teased out Mr Blake’s submissions, express or implied, in this way, for this is the way in which he had to put his case and perhaps in the end did. He began, however, in somewhat different vein. Thus his skeleton argument stated (at para 2):

“The overall issue in this appeal by way of case stated is whether prosecuting K for being absent without leave (AWOL), the Respondent was acting compatibly with K’s human rights in particular his right to manifest his religion under Art 9 ECHR…”

That formulation of the issue concentrates on the prosecution as the relevant interference. The prosecution can be dated to 18 March 2003. By that date the appellant had been expressly informed, on 3 March 2003, by F/L Fulcher that he could claim conscientious objection (findings of fact, para 3), and had been provided by F/L Fulcher on 5 March 2003 with the relevant rules and application form (ibid, para 19). At the beginning of his oral submissions Mr Blake again formulated the issue as whether the appellant’s prosecution was an interference with his belief as a conscientious objector.

However, Mr Blake’s skeleton went on immediately to reformulate that “overall issue” in terms of the following two issues:

“4.

First, whether a religious objection to recall to military service, is capable of being a manifestation of a religious belief within the meaning of Article 9(1) ECHR.

5.

Secondly, whether any restriction on the manifestation of belief by making the Claimant liable for recall to the reserves was in accordance with law and proportionate within the terms of Article 9(2).

6.

With regard to the second issue, the Claimant focuses on the failure of the state to inform the Claimant as a reservist liable to be recalled to service under the terms of s.54 [Reserve Forces Act] 1996 of a right to object to such call up on conscientious and religious grounds.”

That reformulation appears to concentrate on the moment of recall as the critical time of interference by the state, and on the failure to inform the appellant at that time of his right to object to being called out. That involves focusing, inter alia, on the terms of the information provided to the appellant with his call-out papers. The case stated said that the list of grounds of exemption did not include “grounds of religion or conscience” (findings of fact, para 3); but it made no reference to “any other grounds which the Adjudication Officer ought to consider for compassionate reasons”.

Mr Blake’s skeleton argument continued (at paras 19/20):

“19.

K submits that the UK purports to recognise conscientious objection to military service as a ground to avoid this obligation but has failed to provide for this ground in its laws, with consequent uncertainty for an ordinary serviceman whether he could object to recall other than by disobeying an order to report for duty…

20.

Such a state of affairs is incompatible with Article 9, with the consequence that his recall and prosecution for going AWOL was incompatible with the duty on the public authority under HRA 1998 s.6.”

In that passage Mr Blake argues from the position at the time of recall to that at the time of prosecution. However, in still further passages of his skeleton and in his oral submissions Mr Blake confirmed that the time of recall was the “critical date”. He submitted that the reservist needs to know where he stands before the time of recall. Even if used in a non-combative capacity, he may be replacing others who are thus enabled to enter the front-line. The appellant’s conscientious objection was to participation in armed services preparing for war. What was needed was a pure civilian alternative.

At the heart of Mr Blake’s argument was the submission that there was simply no provision in United Kingdom law for a claim to conscientious objection. He rejected two alternatives relied on by the Secretary of State as amounting to a recognition of conscientious objection sanctioned by law: (1) The Reserve Forces (Call Out and Recall) (Exemption Etc) Regulations 1997 (SI 1997 No 307) (the “1997 Regulations”), which were made pursuant to section 78(1) of the Reserve Forces Act 1996 (the “RFA 1996”); and (2) the Leaflet 113 (the “Leaflet”) referred to in the case stated (findings of fact, para 19). As for (1) the 1997 Regulations, Mr Blake accepted that these were “prescribed by law”, and also that the appellant was informed about them at the time of his call-out: but he submits, pointing to the case’s own finding, that they did not include a right of exemption on the ground of conscientious objection. As for (2) the Leaflet, Mr Blake accepts that these do make provision for discharge from service on the ground of conscientious objection: but he submits that it has no statutory or other legal status, and fails in any event to amount to “law” as required by Convention jurisprudence in that it was not published, was inaccessible to the appellant at the time of his recall and unknown to him, and in any event fails to give sufficient guidance, inter alia because it is contradicted by an exclusive list of exemptions sanctioned by the RFA 1996. As Mr Blake submitted (at para 39 of his skeleton):

“The central problem thus identified in this appeal is that the UK Government have failed to make legislative provision for the degree of interference with the right to manifest religious beliefs it considers appropriate to be applied to the armed services in 2003.”

These submissions will make it necessary to consider the legislative background to conscientious objection in the United Kingdom, as well as the 1997 Regulations and the Leaflet, in some detail.

Mr Blake did not make detailed submissions as to what amounted to the appellant’s manifestation of his belief. It was nevertheless implicit in his analysis as a whole that the appellant manifested his belief simply by having it: for clearly at the time of receiving his call-out papers on 15 January 2003 there had been no profession of his belief, at any rate to the Royal Air Force or other organ of the state. On the other hand, in the course of his oral submissions Mr Blake at one important point formulated his case in terms of finding manifestation of the appellant’s belief in his refusal to participate in the service to which he had been recalled. That manifestation, it seems to us, could not have occurred as early as the time of recall.

Another question which arises in this context is as to the exact content of the appellant’s conscientious objection or belief as manifested. The facts found by the summary appeal court put this matter in these terms: “because to do so was against his religion: he did not want to fight against members of his own religion” (what the appellant told F/S Penfold on 25 February 2003, findings of fact, para 11); “It was against his religion. He did not want to be sent off to kill his brothers” (what the appellant told Cpl Macdonald on 26 February 2003, findings of fact, para 13); “they should understand that I’m a Muslim and this war thing I can’t do it because of my religious beliefs” (what the appellant said in interview on 5 March 2003, findings of fact, para 17); and “a war against Iraq would not be right. He did not believe that his religion allowed it” (evidence before the summary appeal court, findings of fact, para 27); and “a genuine and deep belief that the impending invasion of Iraq was wrong and that to be in any way a participant in it would be contrary to his religion” (the summary appeal court’s own conclusion, findings of fact, para 30). Mr Blake glossed these findings in his submissions in a number of ways. He began by saying the appellant’s objection was to fighting Muslims; he ended by saying that his objection was to participating in any way, even as a medical non-combatant, in armed services preparing for war (in Iraq).

Mr Blake’s skeleton also raised an issue under article 14 of the Convention, coupled with article 9, in terms of discrimination between the appellant as a Muslim and members of other religions, in that no Muslim cleric equivalent to a Christian chaplain was available on base to assist Muslims with religious problems about service in the war in Iraq: in circumstances where such a war would be likely to pose particular dilemmas for Muslim former servicemen. Mr Blake submitted, correctly in our judgment, that the summary appeal court was wrong to opine that article 14 could not bite without a breach of article 9. It is rather the case that, whereas article 14 has no independent life of its own separate from one of the other rights and freedoms guaranteed by the Convention, nevertheless there is no need of a breach under one of the other articles, as long as the prohibited discrimination occurs “within the ambit of” some other article: see Gaygusuz v Austria (1997) 23 EHRR 364 and R(Carson) v Secretary of State for Work and Pensions [2004] 3 AER 577 at paras 30/42. Nevertheless, Mr Blake did not press his complaint under article 14 in his oral submissions, and we will say nothing further about it.

In sum, Mr Blake submitted that the two questions posed by the summary appeal court for our decision should be answered as follows: (1) Yes, genuine conscientious objection can amount to a defence in law on a charge of being absent without leave, in circumstances where the serviceman has not been informed of his right to claim exemption; and (2) Yes, the authorities did breach article 9 of the Convention by omitting to bring to the appellant’s attention at the time of his recall for service the fact that if he had a genuine conscientious objection to renewed service he had a right to claim exemption to recall.

On behalf of the Secretary of State, Mr Philip Havers QC had three main submissions. His first was the comprehensive one that article 9(1) is not engaged at all by a claim for conscientious objection. Therefore one never reaches the question of interference with a right that simply does not exist. He says that although the point was left open in the Report of the Commission in Thlimmenos v. Greece (unreported, 4 December 1998), it was concluded as a matter of domestic jurisprudence by the House of Lords in Sepet v. Secretary of State for the Home Department [2003] UKHL 15, [2003] 1 WLR 856, on the basis that the line of Strasbourg jurisprudence leading up to Thlimmenos had refused to recognise any right of conscientious objection under article 9(1).

It was the acceptance of this first submission by the summary appeal court which was at the foundation of their rejection of the appeal. As they said in their “Judgement on Legal Argument”, annexed to their case stated, at para 36:

“The authorities are overwhelming in leading to the conclusion that, as the law stands at the moment, Article 9 of the Convention gives no right of refusal of compulsory military service on the grounds of conscience or of religion (or a mixture of both)…It follows therefore that a claim to such a right cannot provide a defence to breaking a law which has been democratically passed and is not disproportionate to the right of the state which that law seeks to enforce.”

In the latter part of the above citation, as in para 8(3) of the case stated, there is an indication that the summary appeal court considered that, even if article 9(1) had been engaged, any interference caused by the appellant’s prosecution for being absent without leave was justified under article 9(2). It appears that, expressly or not, there was a submission before them to that effect: but the court considered that, in the light of the absence of any right to conscientious objection at all, there was no need for them to go any further, for they say (at para 19 of the Judgement on Legal Argument):

“The thrust of his argument was that there is a clear procedure for members of the Royal Air Force, whether regular or reserve, to claim conscientious objection. They must make the claim. If they do not do so they cannot simply refuse to obey an order or refuse to report for duty on the grounds of conscience. That could not be acceptable in any disciplined service. To allow them to do so would lead to anarchy. I have sympathy with this argument but for reasons which will become apparent, it is not necessary for me to rule on whether it represents the law.”

Those considerations, however, are again adopted in Mr Havers’ argument in this court and lead to his second and third main submissions. His second is that there was, on the facts, no interference: the appellant was given every opportunity to invoke the procedure for discharge on the grounds of conscience, whether by reference to “compassionate reasons”, or by reference to the Leaflet itself. If he had done so, he would not have been prosecuted for being absent without leave. Implicit in that submission is the further point that there can be no interference without a manifestation of the belief in question, and that only arose for the first time during the period of his absence without leave. Therefore the only possible candidate for interference was in any event his prosecution and conviction (or possibly, at earliest, his arrest), but certainly not his original recall.

Thirdly, Mr Havers submits that any interference can be justified under article 9(2). In this connection he seeks to provide a detailed refutation of Mr Blake’s contentions that a procedure to take account of conscientious objection was not available and accessible whether as a matter of law or practice. He relies on the information provided at the time of the appellant’s recall as well as on the Leaflet as being a wholly accessible legal basis for a claim of conscientious objection.

It seems to us that the status and accessibility of a procedure for conscientious objection may be relevant not only to the question of justification under article 9(2) but also to the question of interference under article 9(1).

In sum, Mr Havers submits that the answers to the two questions set for the decision of this court are: (1) No, a genuine conscientious objection cannot amount to a defence; and (2) No, there was no breach of article 9 caused by the omission to bring to the appellant’s attention at the time of his recall his right to claim exemption as a genuine conscientious objector.

Although the point of principle raised on Mr Havers’ first submission logically comes first for consideration, it is necessary to begin by setting out the legal background to conscientious objection under domestic law, and it will be convenient in that context to consider the parties’ conflicting submissions as to the legal status and accessibility of contemporary arrangements.

Compulsory conscription into the armed forces, which no longer exists in modern Britain, was introduced during the First World War by the Military Service Act 1916 (the “1916 Act”). Section 2(1)(d) of that Act allowed for exemption on the basis of “conscientious objection to the undertaking of combatant service”. Section 2(3) provided that an exemption on the ground of conscientious objection could take the form of an exemption from combatant service only, or could be made conditional on the applicant being engaged in work of national importance.

The Second World War produced the National Service (Armed Forces) Act 1939 (the “1939 Act”). Section 5(1) allowed for conscientious objection on three bases: to being registered at all in the military service register; to performing military service; or to performing combatant duties. Section 5(6) granted power to the relevant tribunal seised of the application to grant exemption on either a total basis, or on condition of undertaking work of a civil character, or of being employed in service only in non-combatant duties.

In 1960 national service was abolished and the armed forces of the United Kingdom have since then consisted essentially of a volunteer force of professional sailors, soldiers and airmen. That has made provisions for a reserve force of particular importance. It has also meant, however, that the question of conscientious objection has taken a lower profile. A volunteer can hardly be a conscientious objector. Of course, beliefs may change during service, and therefore the question cannot be said to have completely disappeared. Similarly, a reservist may, in the period between discharge from active service and recall, change his or her beliefs, and it may be said that, within the civil world, such a change might occur more easily or frequently than within military service itself. Mr Blake, however, submits that a reservist recalled to service is in principle like a conscript, and the summary appeal court agreed with that view (see para 8(1) of the case stated, cited in para above). However, we disagree. Mr Blake defined the essence of the similarity of the reservist and conscript and the essence of the difference between the reservist and the serviceman in terms of the practical point that a serviceman undergoing a change of his beliefs would have access to assistance which the reservist in civil life would lack: therefore, like the conscript, he needs special assistance in advance of his recall. Whatever practical force there may be in this point, and we can think of reasons why the position of the serviceman undergoing a change of heart can be more difficult than that of the reservist, who is put to a decision after a period of change and at the point of recall, we cannot consider that this makes the conscript and the reservist on recall alike in principle. When a serviceman volunteers, he agrees that for a certain number of years following service he will answer a recall as a serviceman. Throughout this period he remains a volunteer, unless, as may also befall a serviceman, he undergoes a change of conscience.

The Reserve Forces Act 1996 (“RFA 1996”) brought the law with regard to reserve forces up to date and was designed to permit those reserves to be used more flexibly. The Act authorises a call out of reservists in certain circumstances, including those under section 54 (which was operated in the present case) “if it appears to [the Secretary of State] that warlike operations are in preparation or progress”. Part VIII of the Act deals with schemes for exemption and financial assistance. Section 78(1) is the regulation making power and provides –

“The Secretary of State may by regulations make provision enabling a person liable to be called out, or any employer of such person, to apply for any deferral, revocation, entitlement to release or exemption which, under the regulations, may be granted to the person or in respect of which such an application is made.”

The Reserve Forces (Call-Out and Recall) (Exemptions Etc.) Regulations 1997 (the “1997 Regulations”) are the relevant regulations made pursuant to section 78(1) of RFA 1996. Schedule 1 sets out the “Grounds for Applications” for inter alia exemptions. Since there is a dispute about their applicability to the case of the appellant, it is necessary for us to set them out. Thus –

“1.

The grounds on which a reservist may make an application are –

(a)

that the reservist –

(i)

has the primary responsibility for the care of a person with a severe physical or mental disability who requires frequent attention or supervision, and adequate arrangements for care by a person other than the reservist during the expected period of the reservist’s relevant service cannot be made;

(ii)

alone has parental responsibility…for a child, and adequate arrangements for the care of that child during the expected period of that reservist’s relevant service cannot be made;

(iii)

is engaged in education or training which is intended to prepare or qualify him for a vocation or job and which would be seriously disrupted by his absence on relevant service;

(iv)

is working in a family-owned business which would suffer serious harm as a result of his absence’

(v)

has entered into a contract of employment but has not yet started work under that contract and the other party does not agree to postpone until after the period of the relevant service the date on which the reservist is to start work under that contract;

(b)

any other ground which an adjudication officer ought, for compassionate reasons, to consider.”

It will be obvious that the grounds specified under para 1(a) of Schedule 1 are all making practical provision for the difficulties and emergencies which a reservist, plucked by a call-out from his civil life, may be facing. It is admittedly in this context that the catch-all provision under para 1(b) in terms of “compassionate reasons” is to be found. There is, as it seems to us, no reason nevertheless why such a catch-all provision may not embrace conscientious objection.

Mr Blake, however, submits that this would be the wrong conclusion, in part because of a parliamentary answer, quoted by the summary appeal court in its judgment (at para 13) given by the Secretary of State for Defence on 16 January 2003, when he said:

“The Reserve Forces Act 1996 requires Reservists who are served with a call-out notice to report for service at a specific place and time. Failure to comply may result in the Reservist being charged with desertion or absence without leave and [he] may be tried by court-martial or summarily by a civil court. However the Reserve Forces Act 1996 also contains safeguards for individuals, including the right to apply for exemption from or deferral of call-out. The detailed regulations are contained in the [1997 Regulations]. Schedule 1 of those Regulations sets out the grounds on which a Reservist may make an application. Reservists are made aware of their right to apply for deferral or exemption at the time of their call-out. There are separate arrangements for conscientious objectors.”

Mr Blake relies on the last sentence as a reference to the Leaflet and as confirming that the 1997 Regulations are not intended to deal with claims to conscientious objection. We do not see how a parliamentary answer given in January 2003 can affect the construction of the 1997 Regulations.

Perhaps for this reason Mr Blake also relied on the travaux préparatoires of the RFA 1996. On 30 January 1996 an amendment was moved in the House of Lords for the insertion into the bill of an entirely new clause 80 to deal at length with conscientious objection. Earl Howe, however, on behalf of the government, said:

“Clearly, we are dealing with an important and sensitive area. However, we do not believe that it would be sensible to make specific provision in the Bill for conscientious objectors, if only for the reason that any new arrangements would also have to consider the regular forces. I do not believe that there is benefit in having statutory provision for conscientious objectors. We have long-standing arrangements for such situations which work well. A reservist has the right to appeal to the Advisory Committee on Conscientious Objectors. A member of the reserve forces who is called out and wishes to submit a plea of conscientious objection to his military service obligation has an established procedure which he can go through…I believe that these arrangements, which are long-standing, work well. They are similar to what is proposed in the noble Lord’s amendment. Therefore, in the circumstances, I do not believe there is anything to be gained by seeking to put this kind of provision on the face of the Bill.”

The amendment was thereupon withdrawn. In that answer Earl Howe was clearly describing the procedure under the Leaflet. Indeed, Mr Blake also submits that applications under the 1997 Regulations go to the Adjudication Officer, whereas applications under the Leaflet follow their own process: but that is not obviously or necessarily true (see below under paras 47 and 53). Even so, we do not consider that Earl Howe’s answer can affect the construction of the Regulations either: he was not dealing with them, nor was he answering a question about the meaning of para 1(b) of their Schedule 1. Nevertheless, the answer demonstrates satisfaction that the matter of conscientious objection was properly provided for, albeit not by “statutory provision”, and worked well.

The Royal Air Force was constituted pursuant to the Air Force (Constitution) Act 1917 (the “AFCA 1917”). Section 2 of the Act provides the basic power to make regulations for the new service:

“(1)

Subject to the provisions of this Act it shall be lawful for His Majesty, by order signified under the hand of a Secretary of State, to make orders with respect to the government, discipline, pay, allowances, and pensions of the Air Force, and with respect to all other matters and things relating to the Air Force, including any matter by this Act authorised to be prescribed or expressed to be subject to orders or regulations…

(3)

Subject to the provisions of any such order, the Air Council hereinafter constituted may make general or special regulations with respect to any matter with respect to which His Majesty may make orders under this section.

(4)

All orders and general regulations made under this section shall be laid before Parliament as soon as may be after they are made.”

The Leaflet forms part of such (special) regulations made pursuant to section 2 of the AFCA 1917. It does so as forming part of The Queen’s Regulations for the Royal Air Force (the “Queen’s Regulations”). The Defence Council has succeeded the Air Council as the promulgating body for the purposes of section 2(3) of the AFCA 1917. The fifth edition, 1999, of the Queen’s Regulations, which was the edition in force at the relevant time for the purposes of this case, at para 607 (immediately under the heading “Section 8 – Discharge”) tabulates various forms of discharge. Sub-para (11) of para 607 is headed “(11) Compassionate Grounds”. The tabulation there cross-refers to “para 626 and 627”. Para 626 is headed “Discharge on extreme compassionate grounds”. It describes the procedure for applying for such discharge, and continues at para 626(5):

“The above procedures do not apply to airmen and airmen (aircrew) who apply for discharge on grounds of conscience who are dealt with in accordance with AP 3392, Vol 5, Leaflet 113”

ie the Leaflet.

The Leaflet at the time of the appellant’s call-out, prosecution and conviction was an edition of 10/02. It is apparently reviewed every year, for it is headed “Last Update: 08 Oct 2002 Next Review: 03 Oct 2003”. It was attached by the summary appeal court to its case stated. It is headed “Procedure for dealing with conscientious objectors within the Royal Air Force”. Under its provisions, an airman applying for discharge on grounds of conscience has to submit his application to his commanding officer; on receipt of such application, the airman is to be counselled on its implications and interviewed by a service chaplain; the decision is to be taken within the RAF’s personnel management agency (PMA); if the application is considered genuine, the airman will be discharged “under the terms of QR607(11)”, to which we have referred above, ie on compassionate grounds. If the application is not considered genuine, the airman is informed of his right to appeal to the Advisory Committee on Conscientious Objectors (ACCO). This involves a hearing at which the airman may be entitled to call witnesses. If the ACCO accepts the objection as genuine, discharge under para 607(11) follows. A form of application for discharge on grounds of conscience is annexed to the Leaflet as Annex A. It asks for a “narrative statement giving in detail the reasons and circumstances on which my application is based”. It allows for, or possibly requires, statements of witnesses in support.

The now current Leaflet (updated 28 October 2003) has undergone some changes. Thus para 2 now reads:

“An application…for a discharge on grounds of conscience will be treated as if requesting premature exit on compassionate grounds and will be considered by the Compassionate Appeals Tribunal before a recommendation is submitted to the appropriate disposal authority…”

Para 9 is also new:

“Special Considerations. Applications will not be considered from any applicant who is:

Absent without leave or a deserter.

The subject of outstanding disciplinary action.”

As before, an appeal lies to the ACCO, and a successful application or appeal results in a discharge under para 607(11). It may be that these changes have been generated by this case.

We have already referred to the appellant’s call-out papers above. They included a letter dated 15 January 2003 from the RAF’s PMA, the same body as under the then current RAF Regulations had delegated to it the decision, subject to appeal to the ACCO, about the genuineness and acceptability of any application for discharge on the ground of conscientious objection. The letter commenced as follows:

“1.

You will by now have been notified of your callout for permanent service under section 54 of the Reserve Forces Act 1996 in support of the Royal Air Force in the conduct of current operations. You will wish to be aware that the Reserve Forces Act 1996 introduced new safeguards which allow you to apply to the Adjudication Officer for the Royal Air Force, appointed by the Ministry of Defence, for your callout to be deferred or revoked, or for you to seek exemption from callout. A brief guide to the scheme is at Enclosure 1…

3.

Should you wish to apply for your callout notice to be deferred or revoked, or should you wish to seek exemption from callout, you should notify the Adjudication Officer of your intention either by post, by facsimile or E-mail or, alternatively, you may arrange to speak to him in person. We encourage you to apply by telephone in the first instance…If you are already in permanent service, you should submit your application to your commanding officer in the first instance.”

Enclosure 1 gave a detailed guide to the process. It clearly specified the grounds on which application could be made, following the language of the 1997 Regulations closely, and concluding with the catch-all ground “any other grounds which the Adjudication Officer ought to consider for compassionate reasons”. On the page headed “Where to apply”, the text stated:

“An application by a reservist who has been accepted into service should be made to the officer commanding the unit in which the reservist is serving. An application by a reservist who has not been accepted into service should be made to the Adjudication Officer…”

Full details for contacting or communicating with the Adjudication Officer were then set out. The phrase “accepted into service” reflects the language of the 1997 Regulations themselves. Schedule 3 of the 1997 Regulations is likewise the origin of the distinction whereby a reservist who has not been accepted into service applies to the Adjudication Officer, whereas a reservist who has been accepted into service applies to his commanding officer.

The offence of being absent without leave is prescribed by section 38(a) of the Air Force Act 1955. Section 38 simply states that that “Any person subject to air-force law who (a) absents himself without leave…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”. But it was and is common ground that, as stated by the summary appeal court at para 7 of its judgment, “for a person to be guilty of an offence under that section the absence must be culpable”.

In Kalaç v. Turkey (1997) 27 EHRR 552 at 559 the European Commission on Human Rights (the “Commission”) said:

“41.

The Commission recalls that the expression “in accordance with the law”, within the meaning of Article 9(2), requires first that the impugned measure should have some basis in domestic law; it also refers to the quality of the law in question, requiring that it should be accessible to the person concerned, who must moreover be able to foresee its consequences for him, and that it should be compatible with the rule of law. First, the “law” must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable a citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.”

That was in a case where the European Court of Human Rights (the “Court”) disagreed with the Commission’s opinion that article 9(1) had been engaged without justification in the absence of a state decision based on adequate “law”: the Court held that there had been no interference under article 9(1) at all and did not have to reach article 9(2). Nevertheless, it is common ground that the Commission’s statement of what is required of “law” can stand for present purposes as an accurate summary of the Convention’s requirements.

A similar issue regarding “law” arose in Sahin v. Turkey (unreported, 29 June 2004). This is an important and very recent decision of the Court on article 9 and is relevant to many aspects of a claim under that article. We will refer to it again below. For the present we cite what it says about “prescribed by law” for the purposes of article 9(2):

“74.

The Court reiterates its established case-law, according to which the words “prescribed by law” not only require that the impugned measure should have some basis in domestic law, but also refer to the quality of the law in question, requiring that it should be accessible to the person concerned and foreseeable as to its effects (see, among many other authorities, Rotaru v Romania [GC], no. 28341/95, §52, ECHR 2000-V)…

“77.

Further, as regards the words “in accordance with the law” and “prescribed by law” which appear in Article 8 to 11 of the Convention, the Court observes that it has always understood the term “law” in its “substantive” sense, not its “formal” one; it has included both “written law”, encompassing enactments of lower rank than statutes (De Wilde, Ooms and Versyp v. Belgium, judgment of 18 June 1971, Series A no 12, p. 45, §93) and regulatory measures taken by professional bodies under independent rule-making powers delegated to them by parliament (Barthold v. Germany, judgment of 25 March 1985, Series A no. 90, p.21, §46) and unwritten law. “Law” must be understood to include both statutory and judge-made “law” (see, among other authorities, Sunday Times v. United Kingdom (no 1), judgment of 26 April 1979, Series A no. 30, p. 30, §43). Judge-made law is regarded as a valid source of law under Turkish law (see paragraph 51 above).”

In other words “law” (i) must have the status of law, (ii) must be adequately accessible, (iii) must be of sufficient precision to be foreseeable, and (iv) must be compatible with the rule of law.

On this basis we have no hesitation in describing the appellant’s right to invoke a claim to conscientious objection, whether at the time of his call-out, or at any time thereafter, as prescribed by law. The Queen’s Regulations plainly have the status of law, being a form of delegated legislation, and the Leaflet forms part of them, in amplification of a procedure for claiming conscientious objection as a “compassionate” ground for discharge. It may be that, strictly speaking, the Queen’s Regulations only apply to an airman in service, and not to a reservist recalled but not yet accepted into service (see para 47 above for the distinction). We were not addressed on the status of the Queen’s Regulations in relation to reservists, other than to be told that only a person actually in service has access to a copy of the Leaflet on an airforce website. However, even assuming it to be the case that the Queen’s Regulations only apply to an airman in service, we see no reason why, pending acceptance into service, the reservist subject to call-out cannot apply for exemption for compassionate reasons. The Queen’s Regulations show conclusively that, for the RAF, compassionate reasons include a claim to conscientious objection, and we see no reason why as a matter of language, on an objective view of the 1997 Regulations, the “any other ground…for compassionate reasons” cannot properly include conscientious objection, and we think it does. The fact that a claim to conscientious objection, if made, would be procedurally dealt with in a particular way, at any rate once a reservist has been accepted into service, does not prevent it being dealt with before that time by an Adjudication Officer as “any other ground which the Adjudication Officer ought to consider for compassionate reasons”. That would be obvious to the Adjudication Officer as soon as he consulted the Queen’s Regulations on the subject of conscientious objection. Indeed, since the 1997 Regulations cover the situation both where the reservist has not yet been accepted into service and where he has, it necessarily follows that “compassionate reasons” ought to have the same meaning in both contexts. The fact that Earl Howe in 1996 or the minister of state in 2003 may have given incomplete or slightly inaccurate answers about the relationship of the 1997 procedures with the procedure for conscientious objectors, is neither here nor there. Both were accurate in affirming that there were procedures for conscientious objectors. We have no reason to doubt the minister of state’s observation that such procedures had been working well for many years.

In the present case, although F/S Penfold may not have been aware of procedures relating to conscientious objectors (findings of fact, para 12), he was sound in advising the appellant to “come back to the station to sort it out”. Within a few days F/L Fulcher, either because he was better informed or because he had made himself so, was able to tell the appellant that “there were proper procedures to follow to claim conscientious objection on the grounds of religious belief; and that he may have grounds for making such a claim" (ibid para 15). If the appellant had at any time, either before induction, or during his induction interview, or thereafter, raised his concerns, as he had been urged in his call-out papers to do, either with the Adjudication Officer, whose telephone number he had, or on induction with Squadron Leader Gavin, or at any time with his Commanding Officer, it is impossible to believe that he would not have able to invoke the appropriate procedures, if he had wished to do so. It remains mysterious why, genuine as he was, he never applied to invoke the opportunities to claim conscientious objection about which he was advised.

As for accessibility, the 1997 Regulations would be adequately accessible, even if their effect had not been expressly made part of the information given to the reservist on call-out. As it was, the right to claim exemption was specifically brought to the appellant’s notice, with full details as to what to do. A reservist with a problem was urged to telephone the Adjudication Officer without delay. The Queen’s Regulations are similarly accessible, and the reservist, who has been a serviceman in the past, undoubtedly knows, like any serviceman, about those Regulations and that, if he has a question as to his rights or obligations, he is likely to find an answer to them. Mr Blake informed us in court that no reference could be found to a right to conscientious objection in any source about the armed services. We expressed scepticism and asked what the Queen’s Regulations had to say on the subject. The answer was not long in coming.

In this respect, Mr Blake nevertheless relied on Recommendation No R (87) 8 of the Council of Europe’s Committee of Ministers (adopted on 9 April 1987) “regarding conscientious objection to compulsory military service”. This recommendation was aimed at those countries within the state parties to the Council of Europe who still maintained conscription. The Recommendation contained a procedure inter alia to the effect that “persons liable to conscription, shall be informed in advance of their rights”. However, that does not apply in the United Kingdom, where there is currently no conscription. The recommended procedure went on to state (at B.8) that –

“The law may also provide for the possibility of applying for and obtaining conscientious objector status in cases where the requisite conditions for conscientious objection appear during military service or periods of military training after military service.”

The last few words of that passage are dealing with the conscript reservist. However, even in the case of such a conscript, the recommended procedure is not put in mandatory terms. We have already said that we do not view the recalled reservist in a volunteer system as being the same as a conscript.

It is, however, true that the call-out materials in this case, like the 1997 Regulations, do not mention conscientious objection expressly. In that respect, it would seem that the information provided to the recalled reservist could be improved. However, it does not follow that for that reason the law was inaccessible or unpredictable. We do not consider that it was, but best practice might well suggest that the information provided to the recalled reservist should be considered anew in this respect. We surmise that the absence of conscription has meant that the problem of conscientious objection is less acute than it once was. We note, for instance, that the Leaflet only provides for discharge (or, in the case of an officer, resignation). It does not consider other possible consequences, such as service in a non-combatant role. We speculate that this may be possible, but there do not appear to be any written procedures about it. It is of course possible that in a volunteer armed service it is thought that any form of conscientious objection, where genuine, should lead to discharge or resignation.

In any event, once back into service and well before the outbreak of war as well as before going absent without leave, the appellant would have been fully entitled to apply for discharge under para 607(11) of the Queen’s Regulations on the ground of conscientious objection.

For the same reasons we consider that the right to conscientious objection was sufficiently precise to be foreseeable. (And no one suggests that a system of conscientious objection is incompatible with the rule of law.) As we have said, it remains mysterious why the appellant did not invoke the procedure, even when he knew everything about it in the form of the Leaflet.

If his submission on the absence or inadequacy of the United Kingdom’s “law” as to conscientious objection failed, then Mr Blake submitted first, that a justification argument was not open to the Secretary of State in circumstances where it was not reached by the summary appeal court; and secondly, that in any event there can be no justification of a situation where the recalled reservist, unlike the serving volunteer who has changed his mind, is wrenched back from civilian life and forced to seek advice, at a time of war, from the very people with whom his crisis of conscience has led him into conflict. However, we do not think that there is anything in these points. The issue of justification had been raised below, which is why there had been and remained in this court a substantial argument as to the meaning of “law” under article 9(2). Moreover, we think that, subject to the entanglements of civilian life which were not the issue in this case, the recalled reservist is just like the original volunteer serviceman: he is essentially a volunteer. It was open to the appellant, like any recalled reservist or indeed any serviceman, to seek assistance from any quarter, within or outside the service. It is therefore convenient at this point to state our view that any interference that might have arisen in this case was justified. The RAF is plainly entitled to maintain a system of reservist recall, and to discipline those accepted back into service who go absent without leave and do so prior to raising any question of conscientious objection. On the facts of this case, it seems to us that there could be no breach under article 9 arising from the fact that the appellant was arrested, prosecuted, convicted and (very mildly) punished for being absent without leave, all in circumstances where he went absent without leave before any indication whatsoever of any conscientious objection, despite every opportunity of making his concerns known, and where, despite raising the issue in conversations during his absence, he never formally applied to be treated as a conscientious objector prior to his arrest, prosecution or at any relevant time.

Even on the assumption that Mr Blake is right to submit that a claim to conscientious objection is entitled to protection under article 9, there still remain the issues under that article’s first paragraph of whether there has been any manifestation of belief entitled to protection and whether there has been any interference with the manifestation of the belief in question: see Regina (Williamson and others) v. Secretary of State for Education and Employment [2002] EWCA 1926, [2003] 2B 1300.

The first question under this heading, although it was not really the subject of discussion before us, is, we think, the identification of the belief in question. This is because any examination of manifestation or interference has to start with the belief. For instance, a reservist or serviceman in the appellant’s position who believes that it is contrary to his religion “to fight against members of his own religion” or “to kill his brothers” (findings of fact at paras 11 and 13) may well have no objection to serving in some non-combatant role, especially in a medical one at home. There is some evidence that this may have been the appellant’s own view, since there is a specific finding that he told the summary appeal court that he did not realise that in his medical role he was a non-combatant (finding of fact para 29). In the end the summary appeal court’s finding was that he had a genuine belief that “to be in any way a participant in [the impending invasion] would be contrary to his belief”, but the dimensions of that belief are not clear and, on the court’s view, did not have to be defined further. In any event, this belief, whatever its ramifications, was only clarified at the appeal hearing itself, for the appellant had never made any application for discharge on the ground of his objection.

The next question is when the appellant manifested his belief. This is not an easy question, and again was not much explored. In one sense, the appellant may have manifested his belief at any rate to his family at some early time, even before call-out. In another sense, it might be said that he manifested his belief when he went absent without leave, if at that time his belief was at any rate a material part of his genuine motivation. There is however a line of Strasbourg jurisprudence, discussed in Williamson, which differentiates between the motivation and the manifestation of a belief. In yet a third sense, he did not manifest his belief until he told the RAF about it as the reason for his absence.

In our judgment, whatever the position might be in other circumstances, and we think this is a fact sensitive question, it should not be said that a conscientious objector has manifested his belief until he has expressed it in some way to his service. In some circumstances, we can conceive that the mere act of absence or desertion could be such an expression. For instance, where there is no procedure for conscientious objection at all, or one that is insufficiently knowable. Where, however, as here, the basic background is one of volunteer service, the call-out is on a basis that there may be exemption on compassionate grounds, the recalled reservist is given repeated opportunities to voice any concerns, as a former serviceman he is familiar or at any rate required to be familiar with the Queen’s Regulations and as a recalled serviceman he has, as is conceded, access to those Regulations and to the Leaflet, we do not think that it makes sense to say that the appellant has manifested his belief until he has informed his service of it, and has done so in a formal way. Even Mr Blake at one point accepted that the manifestation was the act of refusing to play any part in the service – which on the facts could not have occurred until he had explained his absence as such a refusal.

As for interference, we think that for similar reasons and in any event there can be no material interference (see Williamson) until the recalled reservist in the appellant’s position has formally applied for discharge (or some other status) as a conscientious objector. In effect, a volunteer cannot say that his conscience or religion has been interfered with by the state until he has made it clear in some appropriate and suitably formal way that he is no longer a volunteer.

We come finally to an issue which was debated at length before us and which, as we have said, is logically the first to arise, and that is whether there is any right at all under article 9(1) for the protection of the conscientious objector. Mr Havers says that there is not, Mr Blake says that there is. The competing submissions, which were essentially a matter of conflicting interpretations of existing jurisprudence, became so refined that we have preferred to approach this case primarily on the basis of its own facts, reversing the logical priority.

Prima facie one might think intuitively that a matter of conscience, whether or not dictated by religious beliefs, but a fortiori if so motivated, lies well within the ambit of article 9. However, a difficulty is immediately raised by the terms of article 4 of the Convention. Article 4(1) prohibits slavery and article 4(2) says “No one shall be required to perform forced or compulsory labour”. Article 4(3) then immediately excludes certain categories of work from the ambit of article 4(2), thus –

“For the purpose of this Article the term “forced or compulsory labour” shall not include:

…

(b)

any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service…”

Mr Havers submits that article 4(3)(b) has been used as the foundation for construing article 9(1) as being subject to the necessary implication that it be read down so as to exclude conscientious objection to compulsory military service. Thus he points to a line of Strasbourg jurisprudence among which two decisions may stand as examples. In X v. Federal Republic of Germany (unreported, 5 July 1977) the Commission ruled on a complaint brought by a Jehovah’s witness who objected not only to military service but also to compulsory civilian substitute service. The complaint was ruled inadmissible. The Commission referred to article 4(3)(b) and continued –

“Since this text expressly recognises that conscientious objectors may be required to perform civilian service in substitution for compulsory military service it must be inferred that according to the Convention conscientious objection does not imply a right to be exempted from substitute civilian service (cf. Commission’s opinion in application No. 2299/66, Grandrath v/FRG – Report dated 12.12.1968 para. 32). It does not prevent a state from imposing sanctions on those who refuse such service (cf. mutatis mutandis, decision on application No. 5591/72, v./Austria, Collection 43, p. 161).”

Similarly, in Johansen v. Norway (unreported, 14 October 1985) a pacifist objected to civilian substitute service on the ground that it tended to uphold respect for military service. The Commission again held the complaint inadmissible, referring to article 4(3)(b) and saying:

“The Convention does not prevent a state from taking measures to enforce performance of civilian service, or from imposing sanctions on those who refuse such service.”

Mr Havers goes on to submit that this jurisprudence was extensively considered both in the court of appeal and in the House of Lords in Sepet. That was a case about two Kurdish asylum applicants from Turkey. They claimed asylum on the ground that if returned to Turkey they would be liable to compulsory military service on pain of imprisonment if they refused. Rather like the appellant in this case, they did not claim conscientious objection to military service per se, but objected to being required to take part in Turkey’s military policies against fellow Kurds. Rejecting their appeal, the House of Lords held that on the facts the applicants had failed to show a case that they would be persecuted if returned to Turkey on the ground of their objection.

Our case is not concerned with a claim by applicants to asylum status on the ground of persecution in their home country. What then is the relevance of Sepet to the appellant’s claim? It arises out of the Sepet applicants’ difficulty of showing on the facts that they would suffer persecution in Turkey. They could not claim that if returned they would be compelled to commit atrocities or gross human rights abuses or participate in a conflict condemned by the international community (cf Krotov v. Secretary of State for the Home Department [2004] EWCA Civ 69, [2004] 1 WLR 1825), nor that they would receive grossly disproportionate or excessive punishment. All they could say, described by Lord Bingham of Cornhill (at para 9) as their key submission, was that –

“There exists a fundamental right, which is internationally recognised, to refuse to undertake military service on grounds of conscience”

so that the non-recognition of the right and consequential punishment would amount by itself to persecution. At para 38 Lord Hoffmann put the same issue as “whether punishing conscientious objectors is an infringement of their fundamental human rights to freedom of conscience and opinion.”

In considering for the purpose of this submission a range of international human rights materials and texts, Lord Bingham turned (at para 17) to the line of Strasbourg jurisprudence and said –

“There are undoubtedly authorities on which [the applicants] can undoubtedly rely…But…They can scarcely be said to constitute a settled body of judicial opinion. Against them must be set a line of decisions of the European Commission of Human Rights which have, at least until recently, held the right asserted by the applicants to be excluded by article 4(3)(b) of the European Convention…The applicants drew support from…a dissent which was repeated and elaborated, with a greater body of support, in the report of the Commission adopted on 4 December 1998 in the case of Thlimmenos v Greece…This dissenting view was not however adopted by the court when the case came before it: (2000) 31 EHRR 411. Whether the imposition of sanctions on conscientious objectors to compulsory military service might, notwithstanding article 4(3)(b) of the European Convention, infringe the right to freedom of thought, conscience and religion guaranteed by article 9(1) was a point which the court expressly left open, at pp 424-426, paras 43 and 53 of its judgment. I am in respectful agreement with the detailed analysis of this authority made by Jonathan Parker LJ in paras 124-139 of his judgment. While, therefore, there are indications of changed thinking among a minority of members of the European Commission, there is as yet no authority to support the applicants’ contention.”

Lord Steyn agreed with Lord Bingham (at para 24), as did Lord Hutton (at para 56) and Lord Rodger of Earlsferry (at para 57). Lord Hoffmann, with whom Lord Rodger also agreed, said –

“50.

The European Court of Human Rights has never found it necessary to decide whether article 9 (the equivalent of article 28 of the ICCPR) entails a right of conscientious objection but the Commission has considered the matter several times. On all the occasions when it considered that it was necessary to decide the point, it has said that article 9 does not…”

In his brief speech Lord Rodger powerfully explained some of the moral and policy difficulties of the issue (at paras 57/58), for instance:

“It is not obvious, for example, that the recognition in peacetime of a right to exemption from military service on grounds of conscience raises precisely the same issues as the recognition of such a right by a state which is fighting for its very survival, which, lacking more sophisticated weapons, requires all the manpower it can muster and which may not be in a position to scrutinise applications for exemption. The dilemma of the conscientious objector asserting a right to exemption in an hour of national peril is correspondingly the more exquisite…In Gillette v United States (1971) 401 US 437…Marshall J…drew attention to the inevitable competition between the values of conscientious objection and of equality of sacrifice, a competition that has to be resolved while bearing in mind that in practice an extensive right of conscientious objection will tend to be asserted by the educated and articulate rather than by the less fortunate members of society. States with different histories, different social mixes and different political, cultural, religious or philosophical values may legitimately differ as to how such a sensitive issue should be determined. It is hardly surprising therefore that no universal solution which all must follow has so far been identified…”

In the present case, however, Mr Blake has submitted that Sepet, as an asylum case, is not determinative of the present issue, and also that the Strasbourg decisions in Thlimmenos have been misunderstood. The question here, he says, is not whether an asylum applicant would be returned to persecution (which raises issues of discrimination) in the face of a fundamental right, but simply whether an article 9 right is engaged and, if so, whether any interference is justified. That issue arises in this country, in accordance with its own laws, which the Secretary of State can seek to justify. The issues concerned with justification can deal with all the complexities of the situations of which Lord Rodger spoke.

We confess to being much attracted by these submissions. We think that in many ways the key to them is the Thlimmenos case itself. There the applicant was a Jehovah witness who in the past had refused to enlist at a time of general mobilisation on the ground of conscientious objection. He was sentenced to four years’ imprisonment. After release, he had sat a public examination to become a chartered accountant and had passed with flying colours. Nevertheless the board of the accountants’ profession had refused to recognise his success on the ground of his conviction. The applicant claimed that this had been a breach both of article 9 and of article 14 taken with article 9. The Commission reported as follows (4 December 1998):

“C.As regards Article 9 of the Convention taken in conjunction with Article 14

42.

The Commission recalls that the Convention does not guarantee freedom of profession…

44.

The Commission also notes that the appellant is a Jehovah’s Witness. As such, he was bound to refuse to enlist in the military forces and to be convicted for that reason.

45.

The Commission cannot ignore the fact that the applicant refused to serve in the armed forces because of his religious beliefs. Moreover, the Commission notes that the applicant never refused to comply with his general civic duties. At the time of the applicant’s conviction the possibility of alternative service did not exist in Greece. As a result, Jehovah’s Witnesses were faced with the choice of either serving in the armed forces or being convicted. In these circumstances, the Commission considers that the applicant’s conviction amounted to an interference with his right to manifest his religion.

46.

The Commission has previously considered that a sentence passed for refusal to perform military service cannot constitute in itself a breach of Article 9 of the Convention [A v. Switzerland (1984) 38 DR 219, one of the Commission decisions cited by Lord Bingham in para 17 of Sepet]. However, in the present case the Commission is not called upon to examine whether the applicant’s original conviction was justified under the second paragraph of Article 9. In any event the Commission could not conduct such an examination since the applicant was convicted in 1983 and Greece has recognised the competence of the Commission to receive individual applications in relation to acts, decisions, facts or events subsequent to 19 November 1985…

47.

The Commission notes that the applicant’s conviction had further consequences which became apparent for the first time on 8 February 1989…when the Chartered Accountants’ Board decided that, although the applicant had been successful in the examination for chartered accountants, he could not be appointed to such a post because of his earlier criminal conviction for refusing to perform military service. The decision of the Board was upheld by the Council of State on 28 June 1996. The Commission considers that, for the reasons mentioned above, the Council of State’s judgment also constitutes an interference with the applicant’s right to manifest his religion.

48.

Moreover, the Commission considers that, independently of whether the applicant’s original conviction could be justified in a democratic society or not, its further consequences were disproportionate given the lack of relationship between the offence committed by the applicant and the profession of a chartered accountant…

49.

The Commission considers that the right not to be discriminated in the enjoyment of the rights under the Convention…is also violated when States without an objective and reasonable justification fail to treat differently those whose situations are different.

50.

In the circumstances of the case, the Commission finds no objective and reasonable justification for the failure of the drafters of the rules governing access to the profession of chartered accountants to treat differently persons convicted for refusing to serve in the armed forces on religious grounds from persons convicted of other felonies…”

CONCLUSION

51.

The Commission concludes, by 22 votes to 6, that in the present case there has been a violation of Article 9 taken in conjunction with Article 14 of the Convention.

D. As regards Article 9 of the Convention

52.

The Commission considers that, given that it has found a breach of Article 9 of the Convention in conjunction with Article 14, it is not necessary to examine whether there has also been a violation of Article 9 on its own.

We have emphasised in italics certain passages of the Commission’s reasoning. There was also a minority report: but pausing here, before reaching the minority report, what did the majority of the Commission decide? We consider that it decided: (1) as a matter of ratio, that the refusal to accept the applicant into the ranks of chartered accountants was a breach of article 14 taken together with article 9 (as Jonathan Parker LJ remarked in Sepet at para 131); (2) as a matter of ratio, that it was not deciding (“not necessary to examine”) whether that refusal was also a violation of article 9 on its own; but (3) as a matter of opinion, and as such part of the reasoning leading up to ratio (1), that the applicant’s original conviction was a prima facie breach of article 9(1) (see para 45’s “amounted to an interference with his right to manifest his religion”), even though (a) the Commission would not have been competent, for reasons of retrospectivity, to resolve that question if it had existed all by itself and (b) that prima facie opinion would in any event have had to be considered in the light of article 9(2) justification, which the Commission was not called upon to examine; and (4) as a matter of opinion but again as part of the reasoning leading up to ratio (1), the subsequent refusal to admit the applicant into the ranks of chartered accountants was itself a prima facie breach of article 9(1) (see para 47’s “also constitutes an interference with the applicant’s right to manifest his religion”).

In other words, the Commission, in its reasoning, went beyond saying that there was a breach of article 14 taken together with article 9 because there was unjustified discrimination “in the ambit of” article 9. (That is the traditional formulation and it is, of course, basic learning that there may be a breach of article 14 without any breach of the underlying articles.) Instead they reasoned that there was article 14 discrimination taken together with article 9 because there had been an interference with the applicant’s right to manifest his religion both by reason of his original conviction and by reason of the subsequent refusal based on that conviction to admit him into the ranks of chartered accountants.

It is reasonable to ask why the Commission went this far in their reasoning. In our judgment, it is possibly because, if the Commission had merely followed their previous reasoning, referred to in para 46 of their report, then, if conscientious objection simply does not fall within the ambit of article 9 (because of the implicit exclusion worked by article 4(3)(b)), then it would not even have been possible to find that there was a breach of article 14. In our judgment the Commission’s decision on article 14 is incompatible with Mr Havers’ submission that conscientious objection does not fall within article 9 as a matter of conscience, religion or belief protected by it.

We now turn to the minority report in Thlimmenos. This is described as a “partially dissenting opinion” by six of the Commission’s members. The minority reasoned as follows:

“1.

While we agree that there has been a violation in this case, in our view the matter falls to be examined primarily under Article 9 taken by itself.

2.

We note that the applicant refused to serve in the armed forces because of his religious beliefs. The Commission has in the past held that in the case of persons who refuse to perform military service on religious grounds, Article 9 must be read in conjunction with Article 4 para. 3 (b) of the Convention…This was considered to show that the Convention does not give conscientious objectors the right to exemption from military service, but leaves each Contracting State to decide whether or not to grant such a right. As a result, a sentence passed for refusal to perform military service was not considered to constitute in itself a breach of Article 9 of the Convention.

3.

The jurisprudence of the Convention has, however, evolved in the interim to such an extent as to cast doubt on this reasoning…

4.

In these circumstances, we consider that the freedom to “manifest…in observance” the well-known religious conviction of Jehovah’s Witnesses by refraining from personal military service is a freedom which attracts the guarantees of Article 9 para. 1, subject to the provisions of Article 9 para. 2…

5.

It follows that the refusal to appoint the applicant as a Chartered Accountant on the sole ground of his having been convicted for refusing to enlist in the army constituted an interference with his freedom to manifest his religion.

6.

An interference with the exercise of an Article 9 right will not be compatible with paragraph 2 unless it was “prescribed by law”, had an aim or aims that is or are legitimate under that paragraph and was “necessary in a democratic society” for the aforesaid aims.”

The minority then went on to consider whether Greece could justify under article 9(2) its interference with the applicant’s rights under article 9(1). On that question of justification, which the majority declined to consider, the minority found that Greece failed (see para 9).

What then is the difference between the majority and the minority? We have again emphasised with our own italics part of, this time, the minority’s reasoning. It will be observed that on the point of an article 9(1) interference constituted by the refusal to accept the applicant into the ranks of chartered accountants, the minority were fully in line with the majority’s own reasoning and wording (see the majority’s para 47 and our step (4) above). In our judgment the only essential difference between the majority and the minority, the essence of their “partial dissent”, is that the minority went on to build on their reasoning a decision, as part of their ratio, that there had been a breach of article 9 itself because, in a situation where there was a need to justify, Greece had failed to justify. It can also be said that the minority were somewhat more explicit in explaining just why the previous reasoning of earlier Commission decisions was no longer satisfactory. The majority seems to have preferred to have represented the earlier decisions, for understandable reasons, as not so much dependent on a formal exclusion of conscientious objection from article 9(1) by reason of article 4(3)(b) – reasoning which, subject to the Court, could only be changed by changing the Convention – as on an assumption of implicit justification (see para 46 of the majority report).

We now come to the Court’s decision in Thlimmenos (2001) 31 EHRR 15. The Court agreed with the Commission that there had been a breach of article 14 in conjunction with article 9 and that it was not necessary to examine whether there had also been a breach of article 9 taken by its own. But its reasoning differed somewhat, and in particular it avoided finding that the original conviction or the refusal to accept the applicant into the ranks of chartered accountants were in themselves interferences with the applicant’s rights under article 9(1). It said:

“42…In essence, the applicant’s argument amounts to saying that he is discriminated against in the exercise of his freedom of religion, as guaranteed by Article 9, in that he was treated like any other person convicted of a felony although his own conviction resulted from the very exercise of this freedom. Seen in this perspective, the Court accepts that the “set of facts” complained of by the applicant – his being treated as a person convicted of a felony for the purposes of an appointment to a chartered accountant’s post despite the fact that the offence for which he had been convicted was prompted by his religious beliefs – “falls within the ambit of a Convention provision”, namely Article 9.

43.

In order to reach this conclusion, the Court, as opposed to the Commission, does not find it necessary to examine whether the applicant’s initial conviction and the authorities’ subsequent refusal to appoint him amounted to interference with his rights under Article 9(1). In particular, the Court does not have to address, in the present case, the question whether, notwithstanding the wording of Article 4(3)(b), the imposition of such sanctions on conscientious objection to compulsory military service may in itself infringe the right to freedom of thought, conscience and religion guaranteed by Article 9(1).”

Thus the Court appears to have seen that even the majority report of the Commission entered upon reasoning where they would prefer not to tread. As Jonathan Parker LJ and Lord Bingham said in Sepet, the Court “left open” the critical question as to the extent of article 9(1) read in the light of article 4(3)(b). It preferred to rest its reasoning on the comparative obscurity of what “within the ambit of” encompasses. With respect to that reasoning, however, it seems to us difficult to understand how, in the terms of the applicant’s submission cited and accepted by the Court at para 42 of its judgment, it can be said that the applicant was “discriminated against in the exercise of his freedom of religion” if conscientious objection has been excluded from the ambit of article 9(1).

We do not think that anything we have said above about Thlimmenos is inconsistent with Jonathan Parker LJ’s own analysis in Sepet, which was approved by Lord Bingham. Thus at para 139 of his judgment in the court of appeal, Jonathan Parker LJ concluded thus:

“Both the Commission and the Strasbourg court expressly left open the question whether a conviction for refusing to undertake military service on religious grounds was justifiable under Art 9(2); indeed the Strasbourg court left open the prior question whether such a conviction was an interference with the applicant’s Art 9 rights which required justification.”

We do, however, think that our understanding of the dynamics of that case supports Mr Blake’s submissions under this head, because, although the Court was content to leave the issue open, the Commission as a whole, both majority and minority, reasoned that there had been an interference with the applicant’s rights under article 9(1). That seems to us to be a decisive shift from the Commission’s earlier reasoning.

Nevertheless, Jonathan Parker LJ did not consider that his analysis of Thlimmenos gave to the appellants in Sepet any assistance. For he said (at 140):

“It follows, in my judgment, that the European Convention of Human Rights provides no support for the proposition that a right of conscientious objection to compulsory military service is recognised by the international community as a core entitlement, such that punishment for refusal to perform such service would amount to persecution within the meaning of Art 1A(2) of the Convention.”

We are not sure that that is the issue in the present case, for the rejected formulation appears to assume that interference with the core right cannot be justified.

Returning to the House of Lords in Sepet, we remind ourselves that Lord Bingham’s conclusion at para 17 was that, despite “indications of changed thinking among a minority of members of the European Commission”, there was as yet “no authority” to support the appellants’ contention. Lord Bingham had previously said that the appellants there had specifically relied on the minority’s “dissenting view”. And Lord Hoffmann similarly referred to the “dissent” in Thlimmenos by a minority of the Commission (at para 50). We fear to trespass on this ground, but, while fully agreeing that there has been no decision that conscientious objection has led to a breach of article 9, we would diffidently suggest that the whole of the Commission, and not merely the minority report, reasoned that the state’s reaction to conscientious objection both could and had in that case led to an interference with the applicant’s right to manifest his religion.

It may be that this difference of perception rests on the way in which the matter was argued before the House of Lords in Sepet; or, just as probably, that we have erred in our own analysis of Thlimmenos. In any event, while revisiting Thlimmenos in deference to the cogent submissions from both sides before us, we do not feel justified or indeed entitled in this case to depart from Lord Bingham’s view, supported by the rest of the House, that the Strasbourg jurisprudence ultimately rests where it did prior to Thlimmenos: and that is destructive of Mr Blake’s submission.

We take this course that much the more willingly in that, for the reasons already explained above, Mr Blake’s present submission could not in any event win the day for him. We remain uneasy, nevertheless, that the issue in Sepet and in this case is not the same, and that the reasoning of the full Commission in Thlimmenos represents a fresh and important look at the ramifications of article 9.

Therefore, for the reasons given in this judgment, we would answer the questions set by the summary appeal court as follows:

There has been no submission that domestic legal principles outside the Convention as brought within domestic law by the Human Rights Act 1998 are relevant to answering this question. We therefore confine ourselves to the Convention. On the basis we have accepted above, in the light of Sepet, we do not consider that article 9 can, as submitted, provide a defence to the appellant’s charge of being absent without leave. We prefer to limit our answer to the case under consideration.

(2)

“Whether, in the particular circumstances of Leading Aircraftsman Khan’s case, the Royal Air Force authorities acted in breach of either domestic legal principles or the European Convention of Human Rights by omitting to bring to his attention at the time he was recalled for service the fact that if he had a genuine conscientious objection to renewed service he had a right to claim exemption to recall as a conscientious objector.”

We again confine our answer to the Convention, because no separate reliance has been placed on domestic legal principles. The question is itself confined to the moment of recall. For the reasons we have given in this judgment, we conclude that, although the appellant’s recall papers did not expressly refer to conscientious objection as a ground for claiming exemption, it did sufficiently identify a relevant ground, namely “any other grounds…for compassionate reasons”. We also consider that even if there had been any contingent possibility of engaging article 9(1) of the Convention by reason of any deficiency in the information given to the appellant in his recall papers, nevertheless for the reasons set out in this judgment, there was no relevant manifestation of conscientious objection and no interference with any such manifestation by reason of the appellant’s recall, arrest, prosecution or conviction.

It follows that this appeal by way of case stated fails.

We would add this thought, for it arises out of the authorities which have been presented before us on this appeal. In earlier years the Commission in particular has often appeared to take a rather formal approach to article 9(1): on the question, for instance, of interference itself, there appears to have been some unwillingness to allow for the possibility of the engagement of article 9(1) and thus to get into the question of justification under article 9(2). It may be that this is in part a reflection of the state parties’ own reluctance to get into the question of justification. We would refer in this connection to Williamson at paras 113/116 and 196/198, where Kalaç is discussed. We would detect in Thlimmenos a new preparedness to allow for possibilities that state interference under article 9(1) may have to be justified. We would view the very recent case of Sahin v. Turkey (see at para 51 above) in just this light. There the Court was prepared at any rate to “assume”, even if not to decide, that the banning at the University of Istanbul of the applicant’s wearing of an Islamic headscarf was an interference with her right to manifest her religion (at para 71). Therefore the question of justification had to be entered upon. Consideration was then given to the requirements of “prescribed by law”, legitimate aim, and “necessary in a democratic society”, especially the latter. It was accepted that in such a context the margin of appreciation “is particularly appropriate…since rules on the subject vary from one country to another depending on national traditions” (at para 102). Ultimately, the Court concluded that there had been no breach of article 9, since the assumed interference had been justified. We can well understand that in this context there need be no shyness about testing rights of conscience and the requirements of a democratic and pluralist society in the dispassionate context of a court and in the light of reasoned argument.

I agree.

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