Royal Forces - Conduct to prejudice of good order and discipline - Mens rea - Judge holding no case to answer

R v Armstrong: Courts Martial Appeal Court (Sir Anthony May (president), Griffith Williams, Mr Justice Coulson): 1 February 2012

The defendant was a serving army officer. While serving in Northern Ireland, his service quarters were searched by the Royal Military Police and they found a firearm, ammunition, a morphine auto-injector and top secret or classified material.

The defendant was charged with four ­separate charges under section 69 of the Army Act 1955. The prosecution opened its case on the basis that there were four ingredients to each of the offences under section 69: (i) the conduct; (ii) that the conduct was ­prejudicial to good order; (iii) prejudicial to military discipline; and (iv) that the defendant had intended to act in the way in which he had or had been ­reckless in so acting. The defendant pleaded guilty to the offences. The judge rejected the defendant’s pleas and a trial proceeded as to whether the offences charged were made out as a matter of law or whether the way in which the charges had been ­preferred was an abuse of process.

The judge held that it was not appropriate to charge the defendant under section 69 of the act. He was concerned that the conduct in question had taken place in circumstances when no one else in the military ­community had or was ever likely to have had any idea that the items were in the defendant’s possession, and that possession in those circumstances could not realistically amount to ­conduct that was to the ‘prejudice of good order and military discipline’. The judge further considered that, notwithstanding that the conduct gave rise to serious substantive criminal offences, he had to consider whether it was capable in law of supporting charges under section 69. Accordingly, the judge found that it would have been more appropriate to have charged the defendant with substantive offences. He ruled that there were additional ingredients to the section 69 offence, namely: that the conduct or its direct consequences either did or might, in the circumstances, have become known to at least one other person in the military community, and that the same had been either intended by or foreseeable to the defendant. Applying those ingredients to the facts of the case, the judge ruled that there was no case to answer. The prosecution appealed.

Consideration was given to the proper construction of section 69 of the act, in particular: (i) the scope of ‘conduct’ required; (ii) whether there was a requirement that the conduct had become known to at least one other person in the military community; and (iii) whether there was an additional requirement of specific intent. The prosecution relied on R v Dodman (Dodman) [1998] 2 Cr App Rep 338. An issue arose as to the course which a judge at a court martial should adopt when he was not content with the charges that the Crown in a military prosecution sought to prefer. The appeal would be allowed.

(1) It was neither necessary nor desirable for the Court of Appeal to comment on the scope of conduct under section 69, save to say that where conduct constituted an offence under the ordinary criminal law, it had to be charged as such save in wholly exceptional circumstances (see [21] of the judgment).

(2) The judge had been wrong in considering that the offence contained the additional ingredient, namely a requirement that the conduct become known to at least one other person in the military community. The words of the section were clear. It was for the Crown to prove the conduct in question and to prove that it was to the prejudice of good order and military discipline. That was an objective test to be undertaken by the tribunal of fact. It was irrelevant that the conduct did not have the potential to become known to others within the military or that it was not in fact known until it was discovered on investigation (see [24], [29] of the judgment).

(3) The mens rea of the section 69 offence had been considered in Dodman. It was clear from that decision that the offence was one of basic, and not specific, intent. The decision of Dodman set out clearly the ingredients of the offence and it was the duty of the judge to have followed that decision. The judge had erred in the ruling that he had made and there was a case to answer in respect of the charges under section 69 of the act (see [30], [36] of the judgment).

Per curiam: Although the Armed Forces Act does not make provision for the superintendence of the service prosecuting authorities, it was made clear by the Ministry of Defence in a written answer on 9 January 2006 that Her Majesty’s attorney general superintends the service prosecuting authorities. It is clear that if, in the ­military courts, a judge does not approve of a course that a military prosecutor intends to take, the proper course for the judge is to ask for the matter to be referred either to the director of service prosecutions, the equivalent to the director of public prosecutions, or to the attorney ­general as may be appropriate (see [40], [41] of the judgment).

David Perry QC and Lieutenant Colonel C J Cowx (assigned by the Registrar of Criminal Appeals) for the defendant; Simon Reevell (instructed by the Army Prosecuting Authority) for the Crown.