Courts-Martial Decided Cases - G & H
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Name Reference 
E v Chief Constable of the Royal Ulster Constabulary and Another
Human Rights/article 3/inhuman treatment by third parties
House of Lords
12 November 2008
Swarbco Website
The positive obligation imposed on the state by article 3 of the European Convention on Human Rights to prevent the infliction by third parties of inhuman or degrading treatment was not unqualified and absolute. It was an obligation to do all that was reasonably to be expected to avoid a real or immediate risk to an individual once the existence of that risk was known or ought to have been known.
Coram: Lord Hoffmann, Lord Scott of Foscote, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood
Appellant: : Miss Karen Quinlivan and Miss Jessica Simor for E.  Respondents: Mr Bernard McCloskey, QC and Mr Paul Maguire, QC, for the chief constable and the secretary of state; Mr Barry Macdonald, QC and Miss Fiona Doherty for the Northern Ireland Human Rights Commission, intervening.
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Earle (Stephen), R -v-
Fraud/JAG Sentencing Guide/Appropriate Sentence
[2009] No 200904059 D5
Court of Appeal
4 December 2009
The Appellant had been provided with a fuel card to enable him to re-fuel a military vehicle placed at his disposal. However, he used the card to re-fuel his private car and another one which he hired. He also claimed motor mileage allowance. In total he claimed £693. He was charged with fraud. He was convicted at trial and sentenced to 60 days detention stoppages of £696 and reduction to the ranks from the held rank of sergeant. The Judge Advocate General's Sentencing Guide provides that theft from an employer and breach of trust are serious aggravating factors and that even a minor theft is often treated more severely within the service context. Rank is another relevant factor. HELD: The Appellant had served 18 years out his 22 year engagement, so the sentence imposed severe financial consequences in respect of his pension reduction and loss of earnings. A sentence of custody was wrong in principle. He had served his sentence by the date of appeal. The court substituted a reduction in rank to the rank of Corporal.
Coram: Lord Justice Thomas, Saunders and Stadlen JJ
Appellant: Mr D Clarke (instructed by Mr Gilbert Blades of Wilkin Chapman solicitors);
Respondent: Brigadier P McEvoy, on behalf of the Services Prosecuting Authority
Case reported by Mr Gilbert Blades
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E, R  v 
Sentencing, child pornography
(2008), 10 October
Höhne Court-Martial Centre
Trial by Court-Martial in Germany. D admitted 17 specimen charges of making an indecent photograph of a child. Sentenced to be dismissed from the service and imprisoned for two years.
Coram: Judge Advocate Michael Elsom
Prosecution: : Not mentioned.  Defendant: Chris Hill.
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Elliott, R v 
Assault Occasioning Actual Bodily Harm (ABH)/No Comment/Self Defence/Adverse Inference/Sufficient Evidence to charge/Sentence
[2002] EWCA Crim 931, CMAC
Appellant headbutted V in a bar in Marseilles, causing a laceration to his forehead which required six sutures. V, in the company of the Appellant and G had been drinking together for some time when an argument broke out between V, who was new to the team, and G. The Prosecution contended that the Appellant took G's side in the argument and headbutted V. The Appellant admitted he head-butted V but said in evidence that did it in self defence. When interviewed under caution in July 2000 he gave a 'no comment' interview on the advice of his solicitor. HELD:  The conviction was safe.
Coram: Lord Justice Judge, Mr Justice Garland and Mr Justice Nelson
Appellant: : Nicholas Lewin   Respondent: James Mason
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Engel and others -v- The Netherlands
ECHR, Military law, article 6 tribunal, criminal charge
(Application no. 5100/71; 5101/71; 5102/71; 5354/72; 5370/72),
8 June 1976 
All applicants were, when submitting their applications to the Commission, conscript soldiers serving in different non-commissioned ranks in the Netherlands armed forces. On separate occasions, various penalties had been passed on them by their respective commanding officers for offences against military discipline. The applicants had appealed to the complaints officer (beklagmeerdere) and finally to the Supreme Military Court (Hoog Militair Gerechtshof) which in substance confirmed the decisions challenged but, in two cases, reduced the punishment imposed.  HELD:
  • Each State is competent to organise its own system of military discipline and enjoys in the matter a certain margin of appreciation.
  • In order to establish whether a disciplinary penalty deviates from the normal conditions of life within the armed forces of the Contracting States, account should be taken of a whole range of factors such as the nature, duration, effects and manner of execution of the penalty or measure in question.
  • The Convention without any doubt allows the States, in the performance of their function as guardians of the public interest, to maintain or establish a distinction between criminal law and disciplinary law, and to draw the dividing line, but only subject to certain conditions. The Convention leaves the States free to designate as a criminal offence an act or omission not constituting the normal exercise of one of the rights that it protects. But, if the Contracting States were able at their discretion to classify an offence as disciplinary instead of criminal, or to prosecute the author of a "mixed" offence on the disciplinary rather than on the criminal plane, the operation of the fundamental clauses of Articles 6 and 7 (art. 6, art. 7) would be subordinated to their sovereign will.
  • The Court must specify, limiting itself to the sphere of military service, how it will determine whether a given "charge" vested by the State in question - as in the present case - with a disciplinary character nonetheless counts as "criminal" within the meaning of Article 6 (art. 6).
          o it is first necessary to know whether the provision(s) defining the offence charged belong, according to the legal system of the respondent State, to criminal law, disciplinary law or both concurrently. This however provides no more than a starting point.
          o The indications so afforded have only a formal and relative value and must be examined in the light of the common denominator of the respective legislation of the various Contracting States. In other words, the categorisation made by domestic law must be judged against the objective standards of other Convention countries in respect of the same conduct.
          o The very nature of the offence is a factor of greater import.
          o The degree of severity of the penalty that the person concerned risks incurring
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Evans: The Queen (on the application of Maya Evans)-v- Secretary of State for Defence
ECHR/Afghan Ops/Transfer of Detainees/UK Policy
[2010] EWHC 1445 (Admin)
25 June 2010
This case concerned UK policy and practice in relation to the transfer to Afghan authorities of suspected insurgents detained by UK armed forces in the course of operations in Afghanistan. UK transfers started in July 2006 and have continued to date, subject to certain moratoria in relation to transfers to individual facilities. The policy is that such detainees are to be transferred to the Afghan authorities within 96 hours or released, but are not to be transferred where there is a real risk at the time of transfer that they will suffer torture or serious mistreatment. On 23 April 2006 a Memorandum of Understanding ("MoU") was entered into between the UK and the Government of Afghanistan concerning the transfer by UK armed forces to the Afghan authorities of persons detained in Afghanistan. The claimant's case is that transferees into Afghan custody have been and continue to be at real risk of torture or serious mistreatment and, therefore, that the practice of transfer has been and continues to be in breach of the policy and unlawful. The claimant seeks to bring the practice of transferring detainees into Afghan custody to an end. If detainees cannot be transferred, the likelihood at present is that they will have to be released. Thus the importance of the case lies not only in its subject-matter but also in its implications for security in Afghanistan and the effectiveness of UK operations there.
Coram: Lord Justice Richards and Mr Justice Cranston
Claimant: Michael Fordham QC, Tom Hickman and Rachel Logan (instructed by Public Interest Lawyers);
Respondent:James Eadie QC, Sir Michael Wood, Marina Wheeler and Karen Steyn (instructed by The Treasury Solicitor)
Eydmann and others , R -v-
Trial/prosecution/abuse of process
General Court-Martial ,
June 29th 2007 (pdf file).
Defence submission of an abuse of process upheld where the investigating and prosecuting authorities have been guilty of serious faults at the very least justifying the view that it would be unfair for any of the Accused to be tried on the charges of perverting the course of public justice. [Thanks to Mr Blades for the copy ruling].
Coram: Judge-Advocate Elsom
Advocates: Gilbert Blades, Mr Hill      
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"F", R-v-
Rape, inflicting grievous bodily harm, self-defence, expert evidence swabs, prospective witnesses invited to sit in court
[2015] EWCA Crim 1098, CMAC, 20th May 2015
Applications for leave to appeal against conviction and sentence of the Court-Martial of offences of rape and inflicting grievous bodily harm. He was sentenced to 10 years' imprisonment for the rape and 3 years' imprisonment for the infliction of grievous bodily harm to be served concurrently. He was dismissed from Her Majesty's Forces. Ancillary orders were made as to notifying the police. The victim was the applicant's then girlfriend, a German national. The applicant drafted his own grounds of appeal which alleged, inter alia, inadequate regard was given to inconsistencies in the complainant's written statements to her oral evidence; that the complainant, he says, had previously sold her story to the Press; unreliable CCTV evidence which he claimed to have been doctored; not all swabs that were taken from him were submitted for forensic analysis and those that were had not been correctly sealed and were not identified correctly in the court proceedings; and that two of his prospective witnesses were invited to sit in court but then when they were due to give evidence on his behalf were prohibited from doing so   HELD:  Appeals against conviction and sentence dismissed.
Coram:  Lady Justice Macur DBE, Mr Justice Supperstone, Mr Justice Leggatt
Counsel:  Non-counsel Application
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Falls, R-v-
Trial/Question from Court
12 December 97, CMAC
Where a question was raised by a member of the court, the judge advocate does not have to deal with it forthwith if he feels his summing-up would adequately deal with the matter. 
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Farrell, R -v- Farrell
Attempted Murder, poking fun/provocation, revenge, use of a knife, remarks by prosecutor, closing address
[2017] EWCA Crim 1547,
CMAC, 6 October 2017
Convicted of attempted murder by Court Martial, before Judge Hunter (Vice Judge Advocate General) and a Board. Sentenced to six years' youth custody. Appeals against conviction by leave of the single. On 14lh November 2016, the appellant was residing in trainee soldiers' accommodation at Catterick. It appears that he had been subject to a lengthy period of "mickey-taking" by some of his colleagues. He became upset and left the room. Those who remained thought this was funny and settled down to bed. Some 25 minutes later the appellant returned. He walked over to the bed of one of those in the room, Rifleman Horbury, and thrust a lock-knife down towards him. The knife struck and penetrated through the mattress. The blow that was administered was of sufficient force that it hit the bedlfame underneath. The appellant was heard then to shout "Let that be a warning". The prosecution case and evidence was that the appellant had aimed the knife at the victim's (V) head. Had V not rolled out of the way, it would have hit him in the head or neck region. The prosecution case was that the "mickey-taking" had affected the appellant's mind and he had determined to take his revenge. The defence case was that he had only ever intended to scare V; he had had no intention to kill him. The issue for the Board was whether the appellant had an intention to kill. The appeal was based upon remarks made by the prosecutor in his closing address. HELD:  Appeal dismissed.
Coram:  Lord Justice Davis, Mr Justice Lewis, Mr Justice Lavender
Appellant:  Mr B Russell
Respondent:  Mr D Edwards and Commander D Ward
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Findlay-v-UK
Human Rights/Fair Trial/Impartiality
[1997] 3 C.L. 342
The first service case brought questioning the impartiality of the court-martial system. The convening officer's role was criticised as being too closely associated with the pre-trial, trial and post-trial procedures, such that there was the appearance of partiality. This decision was instrumental in the creation in April 1997 of an independent Army Prosecuting Authority.
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Finnegan, R-v-,  R  -v-
Sexual Assault/forensic expert/absence of blood or fluid/conflicting reports/expert opinion
Finnegan, [2002]
Courts Martial Appeal Court, 17 October 2002
BAILII web reference
Found guilty by General Court-Martial held at Bulford, with District Judge Ormerod sitting as a Judge Advocate, of a charge of indecent assault. On 12th November 2001 he was sentenced to be imprisoned for fifteen months, to be dismissed from the Service with disgrace and to be reduced to the ranks. His petition to the reviewing authority was denied, as was his application to the single judge. The allegation was that he indecently assaulted the complainant, who was asleep in her bed. She woke up and recognised the accused, who was in Army mess dress uniform. He left the room and she followed after him a little while later and spoke to the driver of a bus into which the defendant had entered. The applicant then followed her after she left the bus, and, on the landing between the two flights of stairs leading up to her room, touched her on her right shoulder and said, "I am sorry. Don't cry. I didn't mean it." The defendant gave an exculpatory interview. The sole ground upon of the application for leave to appeal was based was upon a report of a forensic expert, G, who challenged the prosecution expert's finding that the absence of blood or fluids on the applicant's mess kit did not assist in addressing the allegation against him. The defence expert considered the absence of blood (and hence the other material) on the defendant's uniform provided some support for the assertion that he did not digitally penetrate the complainant as alleged. HELD: The CMAC considered the crucial point was that, in reaching the conclusions upon which the applicant wished to rely, G recognised that those conclusions were not really expert conclusions at all. All the relevant facts were fully ventilated before the court, which, unfortunately for the applicant, held that the allegations were true.
Coram: Lord Justice Clarke, Mr Justice Pitchford, His Honour Judge Fabyan Evans (Sitting as a Judge of the Court of Appeal Criminal Division)
Applicant: Mr Hugh Wallace
Respondent: Mr JW Mason
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Flannery, R-v- Flannery
Appeal against sentence/s.20 gbh/reduction in rank/financial consequences/suspended sentence Offences Against the Person Act 1861
[2013] EWCA Crim 1835
CMAC, 4 October 2013
Appellant was convicted of an offence of inflicting grievous bodily harm upon B, contrary to section 20 of the Offences Against the Person Act 1861. On 24th November 2011, they attended the Annual Polish Dinner in Germany at the mess in Fallingbostel. Their wives had been in dispute as a result of an exchange on Facebook. The men had been friends for some three years but the falling out of their wives had caused some ill-feeling between them. Outside the bar at the mess, the appellant attacked Warrant Officer B by headbutting him to the ground and then kicking him forcibly on at least two occasions to the head. As a result Mr B suffered a fractured nose, several abrasions to the forehead, a small laceration to the head requiring three stitches and a smaller wound to the left eyelid. Appellant relied on self defence. The Board rejected the defence of self-defence. However, for the purposes of sentence it indicated to the appellant that it could not be sure that in the initial stages of the incident the appellant did not react in self-defence and accordingly it would sentence on the basis that he overreacted and went beyond that which was reasonable. The Board sentenced the appellant to nine months' military detention suspended for a period of 12 months. It ordered that the appellant would be reduced to the rank of corporal. The appellant sought the quashing of the order for reduction in rank to corporal, arguing that the financial consequences to the appellant are disproportionate. HELD:  The stern financial consequences of a reduction in rank. This however is an inevitable consequence of an order for reduction in rank. The issue is whether the Board's determination was wrong in principle or manifestly excessive. The issue for the Board was whether the retention of the appellant in his present rank or in any rank above the rank of corporal was compatible with the maintenance of respect and discipline for a person in command in the armed forces. This was a judgment for the expert tribunal. Appeal dismissed.
Coram: Pitchford, LJ; Keith and Lewis JJ
Appellant: Mr D Clark; Crown: Lt Col D Phillips
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Fletcher; Secretary Of State For Defence -v-
Employment Tribunal/Sexual Harassment/Basis for exemplary damages
[2009] UKEAT 0044_09_0910
EAT judgment 9 October 2009
The EAT held that the employment tribunal incorrectly assessed aggravated damages by awarding a perversely high sum and wrongly awarded exemplary damages because there was no behaviour which crossed the exceptionally high threshold to make them applicable. Kerry Fletcher won her claim against the Army for sexual harassment and victimisation. It was a particularly nasty case (for details see emplaw webupdater for 24 January 2008) and the employment tribunal awarded: £30,000 injury to feelings; £20,000 aggravated damages; £50,000 exemplary damages; and £10,000 costs, plus other pecuniary losses. The MOD appealed in respect of the basis for and amount of aggravated damages and the same in respect of exemplary damages. The MoD argued that there were elements of overlap and double recovery. The MOD won, in that the award of exemplary damages was set aside and that of aggravated damages was reduced to £8,000.
Coram: Slade J, Mrs R Chapman, Mr D Welch
Appellants : Miss Monica Carrs-Frisk QC, Mr Ashley Serr; Respondent: Mr John Mackenzie
 
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Foley,  R  -v-
Sentence/Suspended/AWOL/Consecutive Sentence/Mitigation
[2012] EWCA Crim 71
Courts Martial Appeal Court
Appellant pleaded guilty to one charge of being absent without leave (JA Camp). It was his third such offence.A similar second offence was committed between December 2010 and February 2011. As a result a sentence of 90 days' detention was ordered, but the effect of that order was suspended. For the third offence he was sentenced to 90 days' detention, and the suspended sentence was brought into effect to run consecutively. Thus the total sentence was 180 days' detention in all. HELD:  Cases of this kind impinge on military discipline and the efficient running of Her Majesty's Forces. They are not criminal offences in the sense normally understood in civilian life. The Court-Martial is a specialist court. Application refused.
Coram: The Lord Chief Justice Of England And Wales, (Lord Judge), Mr Justice Holman and Mr Justice Openshaw
Applicant:  Mr S Reevell
Respondent:  Lt Colonel Cowx (ALS)
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Fordham -v- R
Human Rights/Fair Trial
CMAC, 3 Oct
[2003] EWCA Crim 2644
Accused convicted at HMS Nelson of one offence of indecent assault. Sentenced to be dismissed from navy and to be disrated to Petty Officer, to be deprived of three good conduct badges and to suffer consequential penalties. He was acquitted of 2 other charges. He appealed out of time, to the CMAC. Grounds: 1. – 3. failure to direct/misdirection; 4. the court-martial process infringed the applicant's right to a fair and public hearing under §6 of the ECHR. Leave refused by the single judge. Applicant argued that the case of Skuse was wrongly decided. HELD: Skuse is a decision binding on this court. Moreover, the application of its nature indicated it was hopelessly out of time. Application refused.
Coram: The Vice President, McCombe and Cox JJ
For Appellant, M Barlow Esq, For Crown, S Crozier Esq
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Funke Medien NRW GmbH –v-Federal Republic of Germany: Opinion Of Advocate General Szpunar
Reference for a preliminary ruling, Crown Copyright and related rights, Reproduction right, Right of communication to the public of works and right of making available to the public other subject matter, Exceptions and limitations, Procedure for transposition by Member States, Assessment in the light of fundamental rights, Exhaustive nature
2018
CJEU,   Case C-469/17
The defendant, produces a military status report drawn up every week on the deployments of the Bundeswehr (Federal Armed Forces, Germany) abroad and on the developments at the deployment locations. The reports are referred to as 'Unterrichtung des Parlaments' (Parliament briefings, 'UdPs') and are sent to selected members of the Bundestag (Federal Parliament, Germany), to sections of the Bundesministerium der Verteidigung (Federal Ministry of Defence, Germany) and other federal ministries, and to subordinate bodies of the Federal Ministry of Defence. UdPs are categorised as 'classified documents — Restricted', the lowest level of confidentiality. At the same time, the defendant publishes summaries of the UdPs known as 'Unterrichtung der Öffentlichkeit' (public briefings, 'Udös'). The Applicant applied for access to UdPs between certain dates, but was refused. However, the Applicant obtained, by unknown means, a large proportion of the UdPs and published several of them as the 'Afghanistan-Papiere' (Afghanistan Papers). The Federal Republic of Germany took the view that Funke Medien had infringed its copyright and sought an injunction, which was upheld by the Landgericht (Regional Court, Germany). Funke Medien's appeal was dismissed by the appellate court. By its further appeal on a point of law, Funke Medien maintains its form of order seeking dismissal of the injunction action. HELD: Both Article 10(2) of the ECHR and Article 52(1) of the Charter of Fundamental Rights of the European Union require limitations on freedom of expression to be necessary. That requirement is not met here. Copyright has two main objectives: (1) to protect the personal relationship between the author and his work as his intellectual creation; (2) to enable authors to exploit their works economically and thus earn an income from their creative endeavours. This involves the area of property rights. Article 11 of the Charter, read in conjunction with Article 52(1) thereof, must be interpreted as precluding a Member State from invoking copyright.
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