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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Dewhirst, R. v [2024] EWCA Crim 1683 (04 December 2024) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2024/1683.html Cite as: [2024] EWCA Crim 1683

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IN THE COURT OF APPEAL
CRIMINAL DIVISION
ON APPEAL FROM THE MILITARY COURT AT CATTERICK
JUDGE LEGARD CMAO 15/02/2024

		Bulford Military Court Centre 22 Mons Avenue Bulford Camp Salsbury SP4 9NN
		4 December 2024

1. THE VICE-PRESIDENT: On 18 March 2024, after a trial in the Court-Martial before Assistant Judge Advocate General Legard and a Board, this applicant was convicted of seven charges of committing an offence contrary to section 70 of the Army Act 1955, namely indecent assault on a male contrary to section 15 of the Sexual Offences Act 1956. He was subsequently sentenced to a total of nine years six months' imprisonment. His application for leave to appeal against his convictions have been referred to the full court by the Registrar.
2. Each of the victims of the various offences is entitled to the life-long protection of the provisions of the Sexual Offences (Amendment) Act 1992. Accordingly, during their respective lifetimes no matter may be included in any publication if it is likely to lead members of the public to identify any of them as a victim of these offences. We shall simply refer to the victims as C1 to C5.
3. The events giving rise to the charges occurred between 1985 and 1993. The applicant was then a Corporal serving at the material times in Germany and Northern Ireland. C1 to C5 were fellow soldiers, junior in rank to the applicant and younger than him in age. They all lived in Service shared accommodation.
4. The complainants gave evidence of "banter" and "horseplay" being prevalent in their shared accommodation. This included, for example, conduct such as one man taking another's towel whilst he was in the shower, leaving him to return naked to his room, or one man flicking the genitals of another. The applicant was portrayed as having presented himself as a loud, confident joker who frequently engaged in such behaviour.
5. The prosecution case, putting it broadly, was that on specific occasions the applicant deliberately went further and committed sexual assaults under the guise of engaging in "banter".
6. Summarising the specific allegations, C1 said that the applicant would regularly expose himself. C1 gave evidence that he woke one night to find that his shorts had been removed as he slept and the applicant was handling his penis (charge 1). He further gave evidence that on a number of subsequent occasions he would wake to find the applicant masturbating him (charge 2) and that he once woke to find himself naked on his own mattress, which had been moved to the floor of the applicant's room, with the applicant trying to "enter him" (charge 3). The applicant gave evidence that he had on a few occasions engaged in consensual sexual activity with C1, which had included oral sex, but he denied the allegation in charge~3. He was convicted of charges 1 and 2. The Board was not able to reach a verdict on charge 3.
7. C2 gave evidence of an occasion when he woke to find the applicant sitting on his bed with his penis erect and masturbating C2 (charge 4). C2's evidence was that the applicant proposed oral sex and C2 told him to 'get out'. The applicant gave evidence that no such incident had ever occurred. He was convicted.
8. C3 gave evidence that on numerous occasions he woke to find the applicant in bed with him, touching his genitals and his bottom (charge 5). The applicant gave evidence denying any such activity with C3. He was convicted.
9. C4 gave evidence that on an occasion when he was driving an army vehicle the applicant had seized and caressed his genitals and asked about his penis. The applicant was at the same time fondling himself (charge 6). C4 hit him. C4 said that the applicant had behaved in a similar fashion on later occasions (charges 7 and 8). The applicant's evidence was that there had been an occasion when he had punched C4 but it was nothing to do with any sexual activity, and that all other allegations were untrue. The applicant was convicted of all three of these charges.
10. C5 gave evidence of rape by the applicant (charge 9) and indecent assault including oral sex (charges 10, 11 and 12). The applicant's evidence was that there had been consensual sexual activity between the two men. The applicant was found not guilty on charge 12 and the Board could not agree any verdicts on charges 9 to 11.
11. It is not suggested on behalf of the applicant that the evidence which we have briefly summarised was insufficient to support convictions. Nor is any criticism made of the directions of law given by the Assistant Judge Advocate General. The sole ground of appeal is that at a pretrial hearing Assistant Judge Advocate General Smith had erred in law in refusing a defence application for an exclusively military, as opposed to an exclusively civilian, Board. In the alternative, it is submitted it was open to the court to appoint a mixed civilian and military Board but the judge failed to consider doing so. The applicant contends that due to the fact-specific Service nature of his case, he was unduly prejudiced by the adjudication of an exclusively civilian Board and that his convictions are as a result unsafe.
12. The procedural history relevant to this ground of appeal is as follows. On 11 October 2023 a plea and trial preparation hearing took place. Th applicant entered not guilty pleas. It appears that there were no oral submissions as to the composition of the Board who would try the applicant. However, the form completed by the judge on that occasion recorded in the section relevant to "arrangements for trial" that there would be a "Board size 6 civilian."
13. On 11 January 2024 there was a further case management hearing. Again no submissions were made as to the constitution of the Board.
14. On 15 January the decision of this court in R v Bhoyroo [2023] EWCA Crim 1625 was published. It is said on behalf of the applicant that until the publication of that decision it had been generally assumed that the composition of the Board to try cases in the Court-Martial was an administrative function, not one involving any judicial decision. The judgment in Bhoyroo was to the contrary.
15. On 22 February 2024 an email from the Court-Martial to the defence referred to the fact that there would be a Board comprising six civilian members. The defence promptly thereafter made a written application for the Board to be composed of civilian members. Written reasons were given why it was said that should be so. The written submissions were considered by Assistant Judge Advocate General Smith. He refused the application. In a written ruling he noted that because the applicant was no longer subject to Service law, having left the Service as long ago as 12 January 1993, rule 33 of the Armed Forces Court-Martial Rules 2009 applied and consequently the lay members of the Board could be officers, civilians or a mixture of the two. The judge referred to the decision in Bhoyroo as making clear that the composition of the Board was a judicial decision to be made by a Judge Advocate General, not an administrative function reserved to a Court Administration Officer.
16. The judge in his ruling summarised the defence submissions as follows:

"The defence point out that all the allegations are said to have taken place in a military environment and in military premises [military vehicle]. It is submitted that a civilian board would be unable to fully appreciate the social nuances and conduct of junior soldiers living together in accommodation blocks on overseas deployment. The defendant maintains that some of his behaviour whilst falling short of criminal behaviour amounted to acceptable 'horseplay' at the time. It is submitted that only a military board would properly be able to contextualise that behaviour and the use of a civilian board would have an unduly prejudicial effect on the defendant's case."

17. The judge did not have available to him any formal guidance as to factors relevant to his decision, although it should be noted that at about the same time the Judge Advocate General was promulgating his Practice Memorandum No 11, which included a helpful non-exhaustive list of six particular factors to be considered.
18. The judge observed that there was an existing presumption that the longer the period between a defendant leaving the Service and the direction for trial, the more likely it was that a civilian Board would be appropriate, and that a civilian Board was likely to be appropriate when at least five years had elapsed. The judge observed that here the elapsed period was very much longer than that. He further said that although the offences were alleged to have taken place in a Service environment and involving other serving members, they were not offences in a specifically Service context. The judge said that he had considered the specific objections raised:

"In my judgement you would not need to necessarily be a serviceperson to properly consider the context of people, service people or otherwise, living in close proximity and indulging in horseplay and banter in shared dorms and washing facilities. These features are not unique to service life and to some extent are features of school life/sports clubs/university dorms. Civilians can and do deal with such circumstances with which they have no personal experience when sitting on juries."

19. The judge finally noted that although all key witnesses had also been Service personnel at the relevant times, they too had long since left the Service, and that this was not a case in which the position of any co-accused had to be considered. The judge accordingly took the view that it was appropriate for the Board to be composed entirely of civilian members.
20. Mr Hedworth KC and Mr Simpson criticise the analogy drawn by Judge Smith, which it is submitted overlooks the specialised nature of the living arrangements relevant to this case of soldiers in arms on deployment in the 1980s and early 1990s. It is further said that the judge failed sufficiently to take account of the nuances of the role which the prosecution alleged had been played by the difference in rank between the accused and the complainants. The core submission on behalf of the applicant is that he suffered prejudice as a result of the civilian composition of the Board. Mr Hedworth submits that the civilian Board would not have been capable of fully appreciating the nuances and conduct of junior soldiers living and working in the circumstances which prevailed here, nor would they properly have understood the context of "horseplay" at the time.
21. In his written submissions, Mr Hedworth contended that a civilian Board was unable to view the context through the invaluable "Service lens" which a military Board would have been able to deploy. For that reason he submitted the convictions are unsafe.
22. Developing his grounds orally this morning, Mr Hedworth places particular emphasis on the contention that there was here a ganging-up on the applicant by his former Service colleagues, in a manner which it is submitted a civilian Board would not be able fully to appreciate in a way that a military Board, or military members of the Board, would have been able to do. Mr Hedworth acknowledges that given the passage of so many years since the relevant events, it is to say the least extremely unlikely that any military Board would include any officer with personal experience of the living arrangements at the material time; but he argues military members of the Board would be better placed to understand the particular circumstances of Servicemen living in shared accommodation, and the potential for movements to develop against one individual.
23. For the respondent, Colonel Carmichael submits that the applicant has shown no material error or failure on the part of Assistant Judge Advocate General Smith such as might justify this court in interfering with the judge's exercise of his discretion. He further submits that in any event no reason has been shown why the convictions should be regarded as unsafe.
24. Developing his submissions orally today, Colonel Carmichael submits that a civilian Board would be as well able as a military Board to be able to identify predatory behaviour masquerading as horseplay. He points out also that the context relied upon by the applicant in relation to his conviction appeal was exactly the same context which the Board had to consider in relation to those charges on which they found the applicant not guilty, or were unable to reach any decision. That feature, submits Colonel Carmichael, does not suggest that the civilian Board faced any particular difficulty in deciding the service aspect of this case.
25. We are very grateful to all the advocates.
26. As we have indicated, the effect of Rule 33 and of the decision in Bhoyroo is that the judge had a discretion as to whether the composition of the Board should be exclusively military, exclusively civilian or a mixture of the two. He was required to make a judicial decision in that regard, taking into account all relevant factors. On ordinary principles, a discretionary decision by a judge seized of a case will usually not be open to challenge unless the judge has failed to consider a relevant factor, has wrongly taken into account an irrelevant factor, or has reached a decision which was not within the range of decisions properly open to him.
27. The initial case management decision made at the plea and trial preparation hearing, that the Board should comprise six civilian members, was not challenged by the defence. Nor was any challenge raised at the later further case management hearing. We do not suggest that that is a conclusive point against the applicant. It is however relevant, for this reason. It is now contended that it was essential for the Board to comprise, or at least include, military members and that a decision to the contrary by Judge Smith was one which was not properly open to him. If that was so, whether it was understood at the time that the composition of the Board would be a matter for the Court Administrative Officer or anyone else, one might have thought that some submission or representation would have been made much sooner than it was.
28. Be that as it may, when the application was made to Judge Smith it is clear that he did carefully consider all relevant factors. As Colonel Carmichael has pointed out, the written submissions provided to Judge Smith on behalf of the applicant contain essentially the same points as are now argued on behalf of the applicant before this court. The judge took into account, but rightly did not treat himself as being bound by, the presumption which was then established by practice and which has subsequently been embodied in Practice Memorandum No 11, that a civilian Board is likely to be appropriate if at least five years has elapsed between cessation of service and direction for trial. The fact that 30 years have passed since this applicant left the Service was a weighty consideration in favour of a civilian Board. So too were the facts that all witnesses had also left the Service many years ago and that there was no co-accused whose position had to be considered.
29. Mr Hedworth submits that the army and Service context of the offending and of the evidence relating to it made it clearly necessary for the Board to comprise or at least to include military members. We accept that, as Mr Hedworth emphasises, the relevant events occurred amongst serving soldiers in army accommodation and in circumstances where the complainants were junior in rank to the applicant. We do not however accept that those factors pointed to a clear need for the Board to comprise or include military members. That is for the following reasons.
30. All witnesses agreed that there was prevalent "horseplay" and "banter", much of which was accepted as part of their shared lives. Everyone agreed that the applicant was a charismatic figure, prominent in activities which focused on men showering or otherwise in a state of undress. The significant element of control which the applicant enjoyed over younger junior complainants was obvious to everyone. Thus, there was much common ground between the parties. The issues related to whether the applicant had abused his position of authority and had deliberately taken advantage of the prevailing atmosphere of "banter" and "horseplay" to commit what he knew to be deliberate sexual assaults.
31. The defence case that the complainants had ganged up to make false allegations against the applicant was a matter which could be and of course was put to them in cross-examination.
32. We are, with all respect to Mr Hedworth's submissions, wholly unpersuaded that only military members of a Board, viewing the evidence through what Mr Hedworth referred to as the "Service lens", could fairly determine those issues. In relation to some of the specific allegations the defence was that the alleged event never happened, not that it was an innocent act which had been misconstrued. Other allegations were of conduct which, if true, plainly went beyond anything that could be regarded as innocent horseplay and which was sexually motivated. In relation to all these matters, the Board would have to decide whether, in their specific allegations, the complainants' evidence was truthful, accurate and reliable. In our view no good reason has been put forward why an exclusively Civilian Board could not fairly make such decisions.
33. Nor have we been shown any unfair prejudice suffered by the applicant because the Board which tried him comprised only civilian members.
34. We therefore reject the basis of the applicant's submissions. Judge Smith had a discretion to exercise and no doubt he might have reached a different decision as to the composition of the Board. But it is, in our view, impossible to argue that the decision which he in fact reached was not one which was properly open to him. There is therefore no ground on which it can be said that the applications are unsafe.
35. Accordingly, grateful though we are to Mr Hedworth and Mr Simpson, this application for leave to appeal fails and is refused.