R v BPR [2025] EWCA Crim 1147

WARNING: reporting restrictions apply to the contents transcribed in this document, as stated in paragraph 1 of the judgment. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.[2025] EWCA Crim 1147Venue Royal Courts of JusticeStrandLondonWC2A 2LLDate Tuesday, 22 July 2025
Before
THE VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISIONLORD JUSTICE HOLROYDEMRS JUSTICE CUTTS DBEMR JUSTICE CALVER
Between
REXCrownv
Between
B.P.R.__________Computer Aided Transcript of Epiq Europe Ltd,Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JETel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)_________MR D CLARK appeared for Appellant/ApplicantWING COMMANDER LEWIS appeared for Service Prosecuting Authority_________J U D G M E N T
[1]THE VICE-PRESIDENT: In the Court Martial proceedings, the court exercised its power under Rule 153 of the Court Martial Rules to direct that the applicant should not be named. We are satisfied that it is appropriate for that position to be maintained. The case has accordingly been listed using as a cipher the randomly-chosen letters "BPR" in place of the applicant's name. Pursuant to section 11 of the Contempt of Court Act 1981, we direct that nothing may be included in any publication which names or may otherwise lead members of the public to identify the applicant. In any report of this hearing he must be referred to as "BPR".[2]The applicant pleaded guilty to an offence contrary to section 13 of the Armed Forces Act 2006 of breach of Standing Orders. He was sentenced to eight months' service detention and ordered to be dismissed from the Service. His application for leave to appeal against his sentence has been referred to the full court by the Registrar. The facts[3]The applicant enlisted in the army at a very young age in 2008. He served with distinction. He was promoted, reaching the rank of a senior non-commissioned officer.[4]On 8 March 2022 his regiment issued a Standing Order in the following terms:
"Members of the British Armed Forces, except as required as part of their official duties, are not authorised to travel to Ukraine to support the ongoing conflict, whether they are on leave or not. Military personnel who disregard this order may be investigated and charged with a service offence."
[5]The applicant and his partner have a young son. Unhappy differences arose between them. His partner left him and returned with their son to her family home. The applicant wished to save his relationship. He applied for a career break in order to be able to spend more time with his partner and their child. The application was granted and his approved break began on 1 August 2023.[6]In applying for that career break, the applicant had made a written application on a standard form which included the following statements by him:
"I understand that: • I remain a serving member of the armed forces under the Armed Forces Act and may be recalled to service at any time ... • I understand that if I wish to take up any employment whilst on my CI [career intermission] I must seek permission."
[7]Unfortunately, the applicant's attempt to restore his relationship was unsuccessful. It seems he decided nonetheless to continue his career break. In breach of the Standing Order he went to Ukraine. He there served with the Ukrainian army in a training role.[8]This came to the attention of the applicant's Commanding Officer, who contacted the applicant. To his credit, the applicant immediately admitted where he was and what he was doing. He returned to the United Kingdom when told to do so in late November 2023 and upon arrest by the Royal Military Police he immediately said that he had been to Ukraine.[9]For reasons unexplained, nearly 12 months then passed before the applicant was charged with the section 13 offence. He pleaded guilty to that offence at the first opportunity. The "Guidance on Sentencing in the Service Courts"[10]The Judge Advocate General has issued guidance on sentencing in Service Courts. We shall refer to this for convenience as the GSSC. The current, 7th, version applies to all sentences passed by a Court Martial on or after 1 January 2025 and is therefore applicable to this case.[11]The introductory paragraphs of the GSSC indicate at paragraph 1.2 that it is "designed not to be prescriptive but to provide an aid to consistency". At paragraph 1.4 it is said:
"As with all previous versions of this guidance, whilst it is issued by the Judge Advocate General and does not carry the statutory authority of guidance issued by the Sentencing Council, the Court Martial Appeal Court has consistently given it due regard. As with all such guidance, there may be occasions when it is appropriate to depart from the guidance and Judge Advocates should explain the reasons for so doing in their sentencing remarks."
[12]The GSSC includes offence-specific guidelines for sentencing offences contrary to section 13 of the Armed Forces Act 2006, an offence which carries a maximum penalty of two years' imprisonment. This guideline reminds sentencers that by section 237 of the 2006 Act, the purposes of sentencing to which Service Courts must have regard include the maintenance of discipline. The guideline notes that the section 13 offence covers a very wide range of forms of disobedience, ranging from the minor to the very serious. The guideline goes on to say this:
"As with other offences of disobedience, the integrity of the chain of command can be adversely affected by those who blatantly or covertly disregard superior instructions. In all cases of Culpability A, the Court must consider disrating/reduction in rank, loss of seniority and, in the most serious of cases, dismissal in addition to the sentences recommended above."
[13]The guideline identifies "deliberate contravention" as a Category A high culpability factor, in contrast to "reckless contravention" which indicates Category B medium culpability.[14]As to harm factors, the rubric which precedes the list of factors indicative of particular categories says this:
"The level of harm is determined by weighing up all the factors of the case to determine the harm that has been caused or was at risk of being caused."
[15]Category 1 factors include:• Contravention caused a security risk or put the safety of individuals at risk.• Contravention has a significant effect on discipline and/or unit cohesion." The sentencing hearing[16]At the outset of his remarks explaining the sentence, Assistant Judge Advocate General Legard indicated that the Board would treat the applicant as a man of previous good character. Judge Legard then said this:
"I have to say at the outset this is a very sad case. Sad because there will be, I have no doubt, many members of the public and commentators and others who will understandably, in one sense, applaud your and indeed anyone's decision to travel and enlist in the Ukrainian Armed Forces in order to lend assistance to their valiant struggle against the illegal Russian invasion of their sovereign country. However, at the time you were, and you remain today a serving soldier whose true and only allegiance was to the Crown and by taking the decision that you did, you immediately and irrevocably created a huge reputation and political risk which could have had major ramifications even on an international level."
[17]Judge Legard went on to say that the applicant had chosen quite deliberately, and in direct contravention of the relevant Standing Order, to travel to the Ukrainian conflict zone and enlist with the Ukrainian army. By doing so, the applicant immediately became subject to the lawful commands of the Ukrainian Armed Forces. Judge Legard noted that although the applicant was in fact posted to a training unit, he had no choice but to answer to the Ukrainian chain of command:
"Had they deployed you to the front line, you would have had no option but to obey ... "
[18]Judge Legard went on to say why the Board rejected a submission on behalf of the applicant that he had been guilty only of a reckless contravention of the Standing[19]The culpability was therefore assessed as falling within Category A. Harm, said the judge, was in Category 1 because the applicant's contravention of the Standing Order had not only placed him at significant personal risk,, but also had the potential to create significant security and reputational risks to the United Kingdom. The guideline therefore provided a starting point of 12 months' imprisonment, with a sentencing range of 12 months' detention to two years' imprisonment.[20]The Court Martial had been assisted by a pre-sentence report. The author of that report took the view, for reasons which were carefully explained, that the breakdown of the applicant's relationship with his partner, and the consequent loss of contact with his infant son, had caused the applicant very great distress and had negatively impacted on his mental health. The author of the report assessed the applicant as having made a series of poor decisions at a time when he was experiencing heightened emotional stress. She suggested that the applicant's behaviour in going to Ukraine had been a form of escapism, relating to a specific set of circumstances which were unlikely to be repeated as the applicant was now engaging with support for his mental health.[21]One of the several authors of most impressive character references and testimonials, Captain Rees, also regarded the applicant's decision to go to Ukraine as a consequence of the breakdown of his relationship.[22]The Court Martial also considered the character references and testimonials, saying that it was clear from them that the applicant was a highly respected soldier, held in very high esteem both for his professionalism and his integrity. The various character witnesses referred to him as a trusted and respected leader, as hard working and professional, and as having impressive skills as a chief instructor. There was a reference from the applicant's Commanding Officer, Lt Col Campbell which spoke in similar terms of high praise. All this amounted, said Judge Legard, to substantial mitigation.

Judge Legard explained the Board's conclusions as follows:

"Those who serve in His Majesty's Armed Forces do not have a choice as to what lawful orders they obey. The order not to go to Ukraine could not have been clearer and it was there to ensure that serving British soldiers, whether on leave or not, did not take part in an armed conflict to which this Country is not a belligerent party. In short, the order was there to protect British soldiers and the British state from being inadvertently dragged into the conflict. You knew of that order; you intentionally disobeyed it. Your offence is serious enough in the eyes of the Board to require a sentence of military detention. The shortest possible detention we can impose having regard to the seriousness of the offence is one of 12 months detention. But for your guilty plea, this may well have been a custodial sentence of imprisonment. Although we took into account your guilty plea by imposing a sentence of detention rather than imprisonment, we further determined that you may also receive a one third reduction from that term of detention. That makes eight months' detention in total ... Furthermore, the offence that you have been convicted of is serious enough to warrant dismissal. We have considered your financial and other circumstances, we understand the effects that dismissal will have upon you, but withstanding those effects we do not consider that any lesser form of sanction short of dismissal would be sufficient in the circumstances of the case, so accordingly you will also be dismissed from His Majesty's service."
The submissions to this court[24]On behalf of the applicant, Mr Clark submits that the Court Martial did not apply the guidelines correctly. He submits there was no sufficient foundation for a finding of deliberate breach when the applicant had maintained that because of his career break he had genuinely believed that the Standing Order did not apply to him. His conduct, submits Mr Clark, was much closer to being a reckless contravention of the Standing Order. Mr Clark suggests that the Board may have reached the unjustified and unfair conclusion that the taking of the career break had been a strategy or ploy to enable the applicant to follow through a long premeditated plan to go to Ukraine.[25]As to harm, Mr Clark submits that the applicant endangered no-one other than himself. In all the circumstances, he submits, the offence should have been categorised under the guideline as B2, rather than A1.[26]Mr Clark further submits that the applicant should not have been dismissed from the Service. He draws attention to the very serious consequences of that penalty.[27]For the respondent, Wing Commander Lewis submits that the Court Martial correctly categorised the offence and reached an appropriate sentence. He reminds us that the GSSC in relation to dismissal emphasises the need for a Court Martial to determine whether the offence in question is serious enough to warrant such a sentence. He also reminds us of the familiar principles stated by this court as long ago as 1998 in R v Love (1998) 1 Cr.App.R 458, to the effect that whilst the Court Martial Appeal Court must correct any perceived injustice in a Court Martial sentence:
"... we must nevertheless be mindful that those imposing and confirming such sentence are, generally speaking, better placed than we are when it comes to assessing the seriousness of offending in the context of service life, and deciding upon what particular penalty is required to maintain the discipline and efficiency of the armed forces."
[28]We are grateful to both counsel. Analysis[29]Like Judge Legard, we regard this as a sad case. The applicant has served his country well. The testimonials speak very highly of him as a soldier, as a leader and as a man.[30]We cannot, however, accept Mr Clark's submissions. The offence plainly did fall within Category 1A. We do not accept the submission that the Court Martial fell into error by wrongly ascribing to the applicant a long held plan to go to Ukraine. The passage which we have quoted from the sentencing remarks links the finding of premeditation to the series of deliberate acts which were needed, after the career break had begun, for the applicant to travel to Ukraine and enlist with the Ukrainian Armed Forces.[31]The applicant had applied for and been granted his career break knowing that he would still be a serving member of the armed forces under the Armed Forces Act and would remain subject to military law. He was aware of the relevant Standing Order. There was therefore a deliberate contravention of the Standing Order and the case was one of Category A high culpability.[32]Furthermore, for the reasons clearly explained by Judge Legard, the applicant placed himself at significant personal risk and could have caused significant security and reputational risks to the United Kingdom. The harm was therefore appropriately placed into Category 1.[33]True it is that the Court Martial, when considering the GSSC, is not under a statutory obligation such as applies under the civilian Sentencing Act 2000. As we have indicated earlier in this judgment, the GSSC itself recognises its status at the outset in the introductory remarks. But the guidelines published by the Judge Advocate General represent considered and authoritative guidance, and good reason is needed before a Court Martial could properly depart from them. We do not accept that the Court Martial here wrongly regarded itself as bound by the guidelines to take a particular course. In our view the Court Martial clearly considered the proper application of the guidelines, and indeed passed a sentence of service detention which was at the bottom end of the category range. It must of course be remembered that service detention is different from a sentence of imprisonment.[34]We fully accept of course that dismissal from the Service is a very heavy additional penalty. It is not however an improper double punishment. The Court Martial was obliged to consider whether this offence was so serious that that severe punishment was necessary. The Court Martial was clearly very well aware of the seriousness of the consequences for the applicant. But the deliberate contravention of the Standing Order by a senior NCO, who should have been setting an example to his men, in circumstances which could have caused very great difficulty to this country if he had been killed, wounded or captured, was properly treated as a very serious offence. The Court Martial was entitled to conclude that dismissal was unavoidably necessary in those circumstances and we can well understand why that conclusion was reached.[35]For those reasons, we can see no arguable ground on which this sentence can be said to be manifestly excessive. The application for leave to appeal against sentence therefore fails and is refused. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE36. Tel No: 020 7404 140037. Email: rcj@epiqglobal.co.uk

Order

"We find, on the contrary, that your contravention was both deliberate and premeditated. You deliberately travelled all the way to Poland. You took steps to make those travel arrangements. You deliberately and consciously took steps to cross the border. To make contact with the relevant Ukrainian authorities. You signed Ukrainian military documentation placing yourself under the authority of the Ukrainian Armed Forces. At all times doing each and every one of those, taking each and every one of those steps, you were well aware of the existence of the Standing Order together with its potential consequences."