Neil Gunn [2019] EWCA Crim 1238

Regina v Neil Gunn [2019] EWCA Crim 1238 concerned an appeal to the Courts Martial Appeal Court against conviction for battery following trial at a Court-Martial. The court, comprising Lord Justice Gross, Mrs Justice McGowan and Mr Justice Butcher, adjourned the principal ground of appeal for further legal argument and refused renewed applications on four additional grounds.

Mr Gunn, then aged thirty-five, had been convicted on 27 February 2017 at a Court-Martial held at the Military Centre Bulford before Judge McGrigor, Assistant Judge Advocate General, of committing a criminal offence contrary to section 42 of the Armed Forces Act 2006, namely battery contrary to section 39 of the Criminal Justice Act 1988. On 28 February 2017 he was sentenced to reduction in rank from Sergeant to Corporal. He applied for leave to appeal and was refused by the single judge. When he renewed that application, a different constitution of the full court on 12 June 2018 granted him leave to appeal on ground one only, which raised the point that although the appellant was in the Royal Air Force he had been tried by a Court-Martial consisting only of Army members. That constitution observed that the Queen’s Regulations for the RAF suggested the Board trying the appellant should have been differently constituted, either by having RAF members on the Board or at least one RAF member on the Board. The full court on 12 June 2018 noted there were other grounds which it was not persuaded were arguable, but indicated that a fresh representative might be able to put them into better order. Those grounds were subsequently advanced by Mr Hugheston-Roberts on behalf of the appellant.

The underlying facts may be summarised as follows. On the evening of 15 September 2016 the appellant attended a sports bar at RAF Benson. After the bar closed he continued socialising in the junior ranks’ accommodation block in the room of Senior Air Craftsman Loades. The complainant, a Corporal in the RAF Police, attended the room after midnight to request that the music be turned down. The complainant overheard an argument taking place between the appellant and Senior Air Craftsman Wasyliw just outside the fire door and approached to intervene. The prosecution case was that the appellant was drunk and acting aggressively during his argument with SAC Wasyliw. The complainant sought to intervene and told SAC Wasyliw to leave. Thereafter the complainant tried to calm the appellant down and, realising he was too drunk to listen, asked him to return to his accommodation. The appellant refused and became aggressive towards the complainant, such that she began to caution him. At that point the appellant shouted at her, grabbed her by the throat and pushed her backwards. The complainant managed to push the appellant away, who then left the scene.

The appellant denied all that and submitted the allegation of assault was fabricated. He maintained he had not made any contact with the complainant. He contended that the complainant was annoyed at having to attend the room to quieten the music, that she then sided with her friend SAC Wasyliw during the argument with the appellant and lost her temper with him. He said he remained calm and did not touch her. He had been to the sports bar that evening until midnight, after which he went to the room party. He had been drinking but a modest amount. He noticed that another SAC was being a nuisance and the occupant of the room party, SAC Loades, did not want him there. It was at this point that the complainant arrived. She was angry. It was the end of her shift. Alerted by the fact that the other SAC had been playing up and the complainant was angry, the appellant decided to stand with the fire door ajar so he could keep an eye on what was going on. At that point SAC Wasyliw started to abuse him about shutting the door. He suggested they move round the corner. He told her he was a Sergeant and this appeared to aggravate SAC Wasyliw, who said he should get back to his block and “fuck off”. The complainant then arrived and did not appear to do anything about the abuse he was receiving from SAC Wasyliw, so he asked her whether they were friends and she confirmed they were. He challenged her for not dealing properly with the matter. He was not aggressive and did not swear. His hands were by his side. He pursued his enquiry as to why she appeared not to do anything and that was when she shouted “Get back, get off me”. She did not administer a caution. She had her notebook and asked for his details. The issue for the Board was whether they could be sure the appellant had grabbed the complainant’s throat and pushed her chest as alleged.

Ground one, for which leave had been given, raised the question whether the Court-Martial Board was properly constituted when made up of Army members with no Royal Air Force representation. The court observed that the governing statutory provisions were contained in the Armed Forces Act 2006. Section 155 makes provision for the constitution of a Court-Martial and sections 156 and 157 contain further provisions relating to the eligibility of certain categories of officers and warrant officers to be members of the Court-Martial. There is no provision in the statute that the Court-Martial for a service defendant should be composed entirely of or even include lay members from the defendant’s own service. Section 163 of the Armed Forces Act provides that the Secretary of State may make rules with respect to Courts-Martial, including in particular as to the sittings, practice and procedure and constitution of the court. It appeared that rules had indeed been made and that they themselves did not make any provision that the Court-Martial for a service defendant must be composed entirely of or include lay members from the defendant’s own service. The appellant’s case thus hinged on the Queen’s Regulations of the Royal Air Force Fifth Edition 1999 Amendment List Number 43, which provided that a service defendant will ordinarily be tried by lay members wholly of his own service, that where a defendant is tried with a co-defendant from a different Service the lay membership of the court will be a mixture of Service personnel from different services, and that each defendant will always have at least one lay member of his own Service on the board.

Lord Justice Gross stated that self-evidently the key question went to the relationship between the Armed Forces Act and the Queen’s Regulations, together with the status of the Queen’s Regulations. That was a point which might well have repercussions for cases other than this. While the rival written submissions were helpful as far as they went, there had been no proper exploration of this question. The court was unwilling to express any view on the key question until it had before it full argument and materials. Furthermore, there were case-specific factual questions as to knowledge of the constitution of the Board and the appellant’s express readiness to proceed in the knowledge that the Board did not contain RAF members which were best considered once the legal framework had been appropriately clarified. If a question of waiver arose it would be essential to know the jurisdictional status of such difficulties as there might be with regard to the Queen’s Regulations. Accordingly the court adjourned that ground, directed that skeleton arguments be provided by the Crown and the appellant, required that the court be supplied with supporting authorities and materials, and scheduled the hearing before the same constitution for 30 July with an estimated length of two hours and reading time of three-quarters of a day in advance. The court observed that it was very important, especially for the Crown, that this matter be fully developed and indicated that it might be a case for Treasury Counsel.

Mr Hugheston-Roberts advanced four additional grounds for which the appellant did not have leave: first, the character of the complainant; second, missing CCTV evidence; third, a conflict of interest in the conduct of the investigation; fourth, the presence of the appellant in junior ranks accommodation. As to the first, the appellant suggested bad faith on the complainant’s part, namely that because of a justified allegation made by the appellant that the complainant had mislaid or abandoned briefly her personal weapons in Afghanistan she had a grudge against the appellant which she pursued with regard to the incident in question. As to the second, the area in which the alleged incident took place was covered by CCTV, but that CCTV from a time very shortly after the incident proved to be unavailable. The appellant wished to pursue an investigation of that matter with the Service Police. As to the third, the complaint was that the incident was investigated by RAF police personnel from the same police flight as the complainant, raising a clear risk of conflict of interest and affecting the proper conduct of the investigation. As to the fourth, the complaint was that the Court-Martial Board misunderstood the presence of the appellant in the junior ranks’ accommodation because they came from the army, where such presence would not have been appropriate, and misunderstood the Standing Orders for RAF Benson, which did not preclude the appellant’s attendance in that accommodation.

Mr Edwards, on behalf of the Service Prosecution Authority, submitted that the Crown had disclosed the fact that the complainant had a disciplinary finding of guilt relating to the loss of a service weapon while deployed on operations in Afghanistan. Had the matter been raised at the Court-Martial, the Crown would have admitted that there had been such a finding and no evidence was required. In any event the appellant could have given evidence that he had supplied that information. The matter was not however raised at the time, which Mr Edwards attributed to a tactical decision having been taken. Much the same went for the CCTV evidence. The investigation diary had been disclosed to those representing the appellant and it was clear the CCTV footage was not available. There was no suggestion it had been wiped clean, but again that was a point that was open to be taken but was not taken at the Court-Martial. As to the investigation, all the facts were clear and yet the point was not advanced. As to the presence of the appellant in the junior ranks accommodation, any error, if error there was, did not occur in the Board’s reasoning prior to conviction, when in fact the matter was correctly stated. If error there was, it came in a passing observation when it came to passing sentence and was thus irrelevant or immaterial to conviction.

The court agreed with Mr Edwards. In respect of additional grounds one, two and three, the court held it could see no good reason why, if they were to be advanced, they could not and should not have been raised at the Court-Martial. The court observed it could well understand a tactical decision not to advance them, as had they been advanced and failed they could have had a serious impact for the appellant in the manner in which the Court-Martial viewed the matter. The underlying material was there and nothing had been held back from the appellant. In any event he had full knowledge of all the matters in question. As to additional ground four, any error, if error there was, arose only at the time of sentence and was wholly immaterial to conviction. The court held that any appeal relying on the additional grounds would be doomed to fail. Accordingly the court refused the renewed application in respect of additional grounds one, two, three and four.

In short, the court adjourned the principal ground concerning the proper composition of a Court-Martial Board trying an RAF defendant and refused the renewed application on four additional grounds relating to the character of the complainant, CCTV evidence, conflict of interest in the investigation and the appellant’s presence in junior ranks accommodation, with the matter to be reconvened on 30 July 2019 solely to hear the appeal on ground one.