Lyons v R [2011] EWCA Crim 2808

[2011] EWCA Crim 2808Case No 201103963 D5IN THE COURT MARTIAL APPEAL COURTON APPEAL FROM GENERAL COURT MARTIAL AT PORTSMOUTHVenue Royal Courts of Justice, Strand, London, WC2A 2LLDate 01/12/2011
Before
LORD JUSTICE TOULSONMR JUSTICE OPENSHAWMR JUSTICE HICKINBOTTOM
Between
D260270R LMAAppellantMICHAEL PETER LYONSAppellantRRespondent
Ms F Edington for AppellantCommander Darren K Reed for RespondentHearing Hearing date: 13 October 2011
Judgment

Introduction

[1]On 5 July 2011 at a Court Martial at Portsmouth the appellant was found guilty of intentionally disobeying a lawful command contrary to section 12(1)(a) of the Armed Forces Act 2006. He was sentenced to seven months’ military detention, reduction from the rank of Leading Medical Assistant to Able Seaman and dismissal from the service. He appealed against his conviction and sentence. At the end of the hearing we announced that his appeal would be dismissed and that we would give our reasons in writing.[2]Section 12(1)(a) provides:
“A person subject to service law commits an offence if – (a) he disobeys a lawful command; and (b) he intends to disobey, or is reckless as to whether he disobeys, the command.” (a) he disobeys a lawful command; and (b) he intends to disobey, or is reckless as to whether he disobeys, the command.”
[3]Under section 367(1) every member of the regular forces is subject to service law at all times.[4]The Act does not define what is meant by “lawful command”, but the Manual of Service Law, chapter 7, page 7-1-4, states:
“A command is lawful if: (a) it is within the authority of the person giving it; (b) it is for a proper service purpose… (c) it is possible for the command to be carried out; and (d) it is not contrary to UK domestic law, international law or relevant local law.” (a) it is within the authority of the person giving it; (b) it is for a proper service purpose… (c) it is possible for the command to be carried out; and (d) it is not contrary to UK domestic law, international law or relevant local law.”
[5]The particulars of the offence set out in the charge sheet against the appellant were that on 20 September 2010 he intentionally disobeyed a lawful command to accompany Warrant Office Robert Bainbridge to the armoury, draw a weapon and start weapon training when ordered to do so.[6]The grounds of appeal against conviction were that: 1. the order was not a lawful order because it contravened his rights under article 9 of the European Convention on Human Rights as a person who had made a claim to be treated as a conscientious objector; 2. the order was unlawful because as a non-combatant within in the meaning of the Geneva Convention, being a medical assistant, he was not required to carry arms and could therefore not be lawfully required to undergo weapons training; and/or 3. he honestly believed the order to be unlawful.[7]The appellant joined the Royal Navy in 2005 at the age of 18. He received basic training in weapons handling. He then underwent medical training and was posted to submarines.[8]In May 2010 he was told that he would be deployed to Afghanistan and in the following month he received an order that the deployment was to be on 1 April 2011. The appellant then started reading articles and reports in the media about the war in Afghanistan. He formed the view that the UK’s involvement was wrong and that it would be morally wrong for him to take part in it. He therefore applied for discharge from the Navy on grounds that he was a conscientious objector.

Conscientious objection

[9]Conscientious objection to military service was first formally recognised in Britain by the Militia Act 1757 but it did not become a major issue until the introduction of full conscription by the Military Service Act 1916. The UK became the first state to legislate for recognition of conscientious objection, simultaneously with full-time conscription. Section 2(1)(d) of the 1916 Act made provision for exemption from conscription on the ground of a “conscientious objection to the undertaking of combatant service”. The Act established a procedure for claims of conscientious objection to be considered by local tribunals from whom appeal lay to an Appellate Tribunal.[10]The National Service (Armed Forces) Act 1939 contained broadly similar provisions. Neither the 1916 Act nor the 1939 Act provided relief to an individual who initially volunteered or accepted call-up but then changed his mind on grounds of conscience. However, in the Second World War that lacuna was filled by an administrative procedure by which the Appellate Tribunal would sit in such cases as an Advisory Tribunal. If satisfied that the claim was genuine, the Advisory Tribunal would recommend the claimant’s discharge under the inherent power of the Crown.[11]This procedure continued after the end of the Second World War until the abolition of conscription in the 1960s. The Appellate Tribunal then ceased to exist and there was a period of time during which there was no clear procedure for dealing with claims of conscientious objection by volunteer members of the armed forces. In 1970 the Ministry of Defence re-established the non-statutory procedure after representations by bodies including the National Council for Civil Liberties. In the same year the Advisory Committee on Conscientious Objectors (ACCO) was formed as a Non Departmental Public Body. Its responsibility is to advise the Secretary of State for Defence regarding all claims to conscientious objection to further service in the armed forces.[12]At the time relevant to this appeal the procedure for a member of the Navy seeking to be discharged on grounds of conscientious objection was set out in Personnel, Legal, Administrative and General Orders 0801 (PLAGO 0801). PLAGOs were orders made under the executive power of the Crown and dealt with matters of naval personnel management. They now exist in another form in a Book of Reference (Naval Personnel Management).[13]PLAGO 0801, paragraph 1, stated:
“Any RN/RM officer or rating/other rank who claims to have developed a genuine conscientious objection to further service may apply for premature discharge without regard to length of service or the manpower situation in the branch. Whenever possible, the application should be accompanied by the individual’s own written statement on the grounds on which he or she is applying. ”
[14]Paragraph 3 referred to the need to avoid abuse of the system by those who simply wished to circumvent normal procedures for voluntary retirement. It stated:
“It is, therefore, most important that the individual’s Commanding Officer and the Chaplain should do all they can to establish the genuine nature or otherwise of the person’s convictions. The Commanding Officer should then submit the application, together with a report and his personal recommendations to the appropriate Administrative Authority. The report should be as full as possible and should cover [various specified matters].”
[15]Paragraphs 4 and 5 set out slightly different procedures according to the rank of the applicant. The relevant paragraph for the appellant was paragraph 4. This stated:
“Application is to be made in writing to the Commanding Officer. Applications made in accordance with this procedure will be decided on their merits by an Administrative Authority, such as the Commander-in-Chief Fleet, Chiefs of Staff (Capability) or (Personnel and Support), Flag Officer Scotland Northern England and Northern Ireland, Flag Officer Sea Training or Flag Officer Training and Recruiting, as appropriate. Discharge if approved will be categorised as compassionate and release is to be effected as soon as possible.”
[16]Paragraphs 7 and 8 explained the role of the ACCO:
“7. An Advisory Committee appointed by the Lord Chancellor is available to hear appeals by Service personnel who claim a conscientious objection to further service and whose applications have been turned down by the Services. This Advisory Committee conducts its hearings in public and tenders its advice to the Secretary of State for Defence’s representative… 8. A successful appeal to the Advisory Committee will be accepted as decisive on the question of conscience and any person whose objection to further service is found by the Committee to be genuine will be granted a release under the terms of paras 4 or 5. Any person whose case is rejected by the Committee will be required to continue his or her Service, although they may of course apply for Voluntary Retirement in the normal way.”
[17]The ACCO has six members who are appointed by the Lord Chancellor. The chair and deputy chair must be legally qualified; in practice, they are circuit judges. There are four lay members. The committee sits in a panel consisting of the chair or deputy chair and two lay members. Witnesses may be called and written evidence presented. There is no formal cross examination but witnesses may be questioned by the Committee. The presentation of the claimant’s case is followed by a statement from a representative of the Service to which the claimant belongs. This would normally be made by the claimant’s commanding officer or his representative and is concerned only with the claimant’s character, general demeanour and recent behaviour. Having heard the evidence, the Committee retires to consider its decision. Its findings are tendered in the form of advice to the Secretary of State that a person has or has not a conscientious objection. The claimant is notified of the advice before the Secretary of State’s decision is made. If the Committee has rejected his claim it would at least in theory be open to him to make written representations to the Secretary of State. The decision of the ACCO and/or the Secretary of State could also be challenged in an appropriate case by judicial review.

The conscientious objection claim and the disobeyed command

[18]In accordance with the procedure set out in paragraph 3 of PLAGO 0801 (see paragraph 14 above) the appellant had meetings with his Chaplain and Commanding Officer to discuss his claim. The Chaplain recorded that the appellant’s concerns were confined to Afghanistan rather than military conflict in general. He concluded that the appellant was not in his opinion a conscientious objector, but rather someone who had a political objection to a particular military engagement. The appellant’s Commanding Officer took a different view. In his report to Navy Command Headquarters dated 11 August 2010, he supported the appellant’s application. He concluded that the appellant’s claim was genuine, albeit that in the writer’s view he had an immature and naive understanding of the world and armed conflict.[19]On 7 September 2010 the appellant’s application was refused by a letter from the Deputy Director Naval Personnel and the appellant was so informed by his Commanding Officer. On 15 September 2010 the appellant commenced an appeal by way of a written application to the ACCO.[20]On 20 September 2010 the appellant attended operational deployment training which he was required to undergo in order to train him for deployment in Afghanistan. The particular purpose of the course was weapon training. The appellant refused to take part in it. Attempts were made to persuade him to change his mind, but he was adamant that he would not take part in any weapon training until his appeal had been decided. After some hours had passed, he was arrested and charged with intentionally disobeying a lawful command.[21]The appellant’s appeal to the ACCO was heard on 17 December 2010. The chairman of the panel was His Honour Judge King. In its findings the committee stated:
“It was apparent to the Committee that LMA Lyons had no objection to armed conflict in the broad sense or when he felt there was a “just cause” for the deployment of British Armed Forces…The Committee was firmly of the view…that political objection by a serviceman to service in a particular theatre cannot form the foundation for an application to be discharged from military service.”
[22]The Committee announced its decision to advise the Secretary of State that the appellant should not be discharged on the ground of conscientious objection at the end of the hearing.[23]The ACCO’s advice was accepted by the Secretary of State. The appellant did not seek to challenge the decision of the ACCO or the Secretary of State by way of judicial review. Ms Edington rightly accepted that it is not open to the appellant in these proceedings to challenge the correctness of the decision.[24]At the appellant’s court martial in July 2011,

the judge advocate, Judge McGrigor, gave the following direction:

“I remind you that the defendant says that he considered the war in Afghanistan to be unlawful. His application to be recognised as a conscientious objector had recently been rejected. Nevertheless, he saw himself as a conscientious objector. He was in process of appealing this rejection. Further, he considered the order to undergo weapon training was a combatant activity linked to his pending operational deployment which would detract from his application to be recognised as a conscientious objector and therefore he was entitled to refuse the order. As a matter of law I direct you that such a refusal on that basis by the defendant is not a defence in law to a charge of disobedience to a lawful command.”
[25]Ms Edington submitted that this was a misdirection.

Article 9

[26]Ms Edington’s main argument in support of the appeal was based on article 9. This provides:
“1. Everyone has the right to freedom of thought, conscience and religion; this 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.”
[27]In Bayatyan v Armenia (application no 23459/03, 7 July 2001) the Grand Chamber of the European Court of Human Rights departed from an earlier line of case law to the effect that article 9 could not be raised as affording a foundation for a refusal to accept conscription into the armed forces on grounds of conscientious objection. It said, at paragraph 110:
“…the court notes that Article 9 does not explicitly refer to a right to conscientious objection. However, it considers that opposition to military service, where it is motivated by a serious and insurmountable conflict between the obligation to serve in the army and person’s conscience or his deeply and genuinely held religious or other beliefs, constitutes a conviction or belief of sufficient cogency, seriousness, cohesion and importance to attack the guarantees of Article 9…Whether and to what extent objection to military service falls within the ambit of that provision must be assessed in the light of the particular circumstances of the case.”
[28]Although the court was there concerned with a case of conscription, Commander Reed did not seek to argue that article 9 is incapable of applying to a person who has engaged in military service as a volunteer but has subsequently had a change of mind on grounds of conscience. In our judgment he was right not to argue the point. As we have said, the UK has long recognised the possibility of a genuine conscientious objection on the part of a person who had previously volunteered for military service. He was also right in our judgment in submitting, in relation to the application of the requirements of article 9, that the fact that a person has volunteered for military service, and so voluntarily accepted the responsibilities which go with such service, may be highly material when considering the balance to be struck between the individual’s conscience and the interest of public safety, the protection of public order and the protection of the rights of others, to which article 9.2 refers.[29]Ms Edington submitted that article 9 requires that from the moment when a member of the armed forces tells his commanding officer that he objects to further service on the ground of conscientious objection, he must not be required to take any part in active service until his claim has been finally determined. Her alternative submission was that his right to refuse to take part in further service would begin at the moment when he makes a written application for discharge on the grounds of conscientious objection.[30]Commander Reed pointed out the obvious and potentially grave consequences for military operations, for the safety of other members of the armed services and potentially the safety of civilian populations if Ms Edington’s argument were correct. It would mean, for example, that one or more members of a unit serving in a dangerous situation could suddenly refuse to take any further part in the operation on which they had been deployed. This could put at immediate risk the lives of comrades, the success of the operation and the safety of the civilian population.[31]In our judgment the procedure which we have described for dealing with claims of conscientious objection satisfies the requirements of being prescribed by law and being necessary in a democratic society in the interest of public safety, the protection of public order and the protection of others. A person who voluntarily enters military service undertakes serious responsibilities potentially involving the lives and safety of others. If he seeks to be discharged from further service on the ground of conscientious objection, it is right that there should be a proper process for deciding whether his claim is well-founded. Until that has been established it is necessary and just that he should continue to be subject to the requirements of military service and military discipline. Otherwise he could immediately escape from the responsibilities which he had voluntarily accepted, regardless of the consequent risk to others and regardless of whether or not his claim was well founded. We do not accept the argument that the appellant’s giving of notice to appeal justified his refusal to obey an order pending the determination of his appeal. That would make the order optional at his choice.[32]Ms Edington also complained about the length of time taken to determine the appellant’s claim of conscientious objection. We cannot see how that could in any event affect the correctness of the judge advocate’s direction. We also see no merit in the complaint on the facts. The appellant’s claim was decided well before he was due to be deployed to Afghanistan. The purpose of the order which he disobeyed was merely preparatory to his deployment.

Geneva Conventions 1949 and 1977

[33]Ms Edington’s second argument went as follows: 1. As a medical assistant the appellant had the benefit of protected status under the terms of the Geneva Conventions. 2. Such personnel may carry arms for the purpose of defending themselves and the wounded and sick in their charge, without losing their protected status, but that is purely permissive. 3. To require the appellant to undergo weapons training was unlawful.[34]There is some doubt as to how the Conventions apply to hostilities in Afghanistan and the answer may lie in customary international law rather than the precise language of the text. However, it is unnecessary to explore that question in this case. We proceed on the basis that as a medical assistant the appellant would have been entitled to protected status in Afghanistan, although that is unfortunately not recognised by the Taliban who have in the past fired on medical personnel.[35]The second step in Ms Edington’s submissions is correct, but the third is a non sequitur. It is not, of course, a requirement that a medical assistant should bear arms in order to have protected status. The medical assistant has protected status despite bearing arms, provided that the bearing of arms is for a limited purpose. The requirement for UK service personnel to have weapons training prior to service in Afghanistan is an operational requirement imposed as a matter of Ministry of Defence policy for the protection of service personnel and those in their care. The need for the policy seems obvious, but it is not a matter for the courts to judge. The courts would only be concerned if there were some arguable basis for saying that a military policy decision of such a kind was unlawful. It is a novel legal proposition for which there is no foundation. Operational requirements are not matters for the courts to decide.

Mens rea

[36]Ms Edington’s third argument was that the appellant had a valid defence if he believed the order to be unlawful. This argument involves reading into section 12 an additional requirement that the person knew or believed the command to be a lawful command. There is no warrant for reading such words into the section. It would also seriously undermine the purpose of the section. The operation of the armed services depends on service personnel obeying lawful orders. We are not here concerned with the hypothetical case of a serviceman ordered to do something which he reasonable believed would be a war crime. That would give rise to different moral and legal questions from any which arise in the present case. All that the appellant was being required to do was to undertake weapons training for the protection of himself and those under his care if his claim for conscientious objection was rejected and he was deployed to Afghanistan.

Sentence

[37]The judge advocate general’s Guidance on Sentencing in the Court Martial, version 3, June 2011, suggests an entry point for disobedience to lawful commands, contrary to section 12, of reduction in rank and detention for 60 to 90 days. Under the heading “Service policy considerations”, it states:
“The integrity and effectiveness of the Armed Forces rely on obedience to commands. Disobedience undermines the chain of command and can seriously affect operational effectiveness, especially while on operations. The authority of superior officers must be upheld and those who flout that authority must be dealt with quickly and proportionately but firmly. Reduction in rank and a short period of detention should always be considered, and in more serious cases dismissal should also be considered.”
[38]Ms Edington submitted that the sentence imposed on the appellant was so far in excess of the recommended entry point as to be wrong in principle and manifestly excessive. She submitted that there were no aggravating features of the kind listed in the Guidance but there were mitigating factors in that the appellant’s action was sincere, if naive, and that he was months away from being deployed to Afghanistan. He was also of previous good conduct. The Board comprised five members – a Commander, a Lieutenant Commander, two Lieutenants and a Warrant Officer. Between them they had great experience.

The judge advocate, delivering the reasons of the Board, said:

“On 20th September 2010 you deliberately disobeyed an order from Warrant Officer Bainbridge, your superior officer to undergo weapon training. You were not caught by surprise as you had told him you would not do so on arrival at the course. Over the next four hours, whilst the matter was considered by the chain of command, you had plenty of time to reconsider your decision. You well knew that refusal to undergo the weapon competency course would effectively prevent you from being deployed on operations; you would be returned to your unit. In effect you had engineered the situation so that you could not be sent to Afghanistan. This meant that another medical colleague would, possibly at short notice or in breach of the harmony guidelines, be sent in your place. … Now service personnel who fail to do their duty by refusing lawful orders create a situation where other soldiers and colleagues who might also have misgivings about dangerous operations can harbour real misgivings about a system that allows particular personnel to avoid dangerous duties. You will know that because you recall lively conversations with colleagues about your stance. The service bond is all about the equal sharing of risk and danger so such behaviour has real potential to affect operational effectiveness. Service personnel cannot pick and choose what operations and orders they will carry out. To do so would have a corrosive effect on morale and undermine service effectiveness. You were a Leading Hand and thus your superiors were entitled to expect you to show an example to your subordinates… We consider that you knew exactly what you were doing and the consequences, both good and bad for you, in your refusal to obey the order. We also do not put much weight on the fact that it is suggested this was a single refusal. Once you had engineered your return to your unit you had achieved your objective which was not to go on operations. Now service personnel who behave as you have done must expect a condign sentence not just to punish you but to discourage others from behaving in a similar way. Now we have considered the Court Martial Sentencing Guidelines but for all the reasons that I have set out above consider them to be inadequate…”
[40]The maximum sentence for the offence was 10 years’ detention. The Board clearly took a grave view of the offence for reasons which it explained. It was entitled to take that view. In particular, the Board was in a far better position than this court to assess what it described as the corrosive effect on morale and the potential to affect operational effectiveness of the appellant’s conduct. It was entitled to take the view that the Guidance on Sentencing was inadequate in this case.

Conclusion

[41]For those reasons the court rejects the arguments that the judge advocate’s direction was wrong in law and that the sentence was wrong in principle or manifestly excessive.