R v BSH [2025] EWCA Crim 706

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. 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 706Venue Royal Courts of JusticeStrandLondonWC2A 2LLDate Wednesday, 4 June 2025
Before
LORD JUSTICE WILLIAM DAVISMR JUSTICE WALLMRS JUSTICE HILL DBE
Between
REXCrownV
Between
B.S.H.__________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)_________COMMANDER E HANNAH appeared for Applicant (Service Prosecuting Authority)MR E HAND appeared for Respondent (Defendant)_________Lord Justice William Davis delivered the judgment orally at the conclusion of the hearing on 4 June 2025. Following his death, the judgment has been approved by Mr Justice Wall.APPROVED J U D G M E N T

LORD JUSTICE WILLIAM DAVIS:

[1]The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, where an allegation has been made that a sexual offence has been committed against a person, no matter relating to that person shall, during that person's lifetime, be included in any publication if it is likely to lead members of the public to identify that person as the victim of the offence.[2]On 21 March 2025 in the Bulford Military Court Centre at a hearing prior to arraignment, the Judge Advocate General dismissed the case brought by the Service Prosecuting Authority ("the prosecution") against a serving army sergeant. He was charged with an offence of sexual activity with a child when he was a person in a position of trust, that being an offence contrary to section 16(1) of the Sexual Offences Act 2003. He was also charged with contravention of standing orders, contrary to section 13(1) of the Armed Forces Act 2006. Both charges involved the same allegation, namely that he had engaged in physical sexual activity with a young trainee.[3]The case was dismissed on the basis that, on the evidence presented, no reasonable Court Martial Board could draw the inference that such activity had taken place. The evidence relied on consisted principally of text messaging between the defendant and another sergeant said to be describing the sexual activity.[4]The prosecution have applied for leave to appeal against the order of the Judge Advocate General. The defendant resists this application on two grounds. First, it is said that there is no jurisdiction in this court to hear an appeal against a ruling dismissing a case at a preliminary stage. Second, it is submitted that even if we do have jurisdiction, the Judge Advocate General's ruling was reasonable.[5]We shall anonymise the defendant (namely the respondent to this application) and refer to him as BSH. Whatever the outcome of this application, the other sergeant with whom BSH exchanged messages is due shortly to be tried in relation to allegations relating to the trainee. Anonymisation is necessary to avoid any prejudice to those proceedings.[6]The jurisdiction of this court to hear an appeal against a ruling by a Judge Advocate in a preliminary proceeding in the Court Martial comes from section 163(3) of the Armed Forces Act 2006. That provides statutory authority for the making of Court Martial Rules. It provides inter alia for appeals "against any other orders or rulings made in proceedings preliminary to a trial". There is no express power in the 2006 Act, or in any Rule made thereunder, for a Judge Advocate to dismiss a charge before a Court Martial has commenced. Rule 25 of the Armed Forces Court Martial Rules 2009 is headed "Termination of proceedings". Rule 25 essentially deals with situations where there is an issue in relation to the composition of the Board. Where proceedings are terminated in those circumstances, there is no bar to further proceedings in relation to the same charge: see Rule 25(6).[7]An application to dismiss the proceedings does not fall within Rule 25. Rule 26 is headed:
"Circumstances not provided for."
This Rule requires the Judge Advocate to conduct proceedings "in such a way as appears to him most closely to resemble the way in which comparable proceedings of the Crown Court would be conducted in comparable circumstances." Where the Judge Advocate "is unable to determine how comparable proceedings of the Crown Court would be conducted in comparable circumstances, (the Judge Advocate must proceed) in such a way as appears to him to be in the interests of justice".[8]In the Crown Court a defendant sent for trial under section 51 or 51A of the Crime and Disorder Act 1998 may apply at any time prior to arraignment for the charges in their case to be dismissed. Schedule 3 paragraph 2(2) of the 1998 Act requires a judge of the Crown Court to dismiss the charges if it appears that the evidence against the defendant would not allow him properly to be convicted. The judge must apply the same criteria as arise in a submission of no case to answer at the close of the prosecution case. If the judge dismisses the charge(s), no further proceedings may be brought on them, except by preferring a voluntary bill of indictment.[9]Where a judge in the Crown Court dismisses the charge(s) prior to arraignment, the prosecution have no right of appeal against that decision: see Thompson and Hanson [2006] EWCA Crim. 2849. The provisions of section 58 of the Criminal Justice Act 2003 give a general right of appeal to the prosecution against rulings by a judge in relation to a trial on indictment. But the necessary premise of the section 58 procedure is the acquittal, or prospective acquittal, of the defendant. Dismissal of the charges pursuant to Schedule 3 of the 1998 Act does not lead to an acquittal. Were it otherwise, there would be no power to prefer a voluntary bill following dismissal.[10]The procedure in Schedule 3 of the 1998 Act does not apply to the Court Martial. That procedure was created following the abolition of committal proceedings for indictable only offences. Because there was no opportunity for the sufficiency of the prosecution case to be tested at the Magistrates' Court following such abolition, it was necessary to have a process whereby this could be done at an early stage in the Crown Court. The Court Martial process is different. The way in which a case comes before the Court Martial is set out in Parts 7 and 8 of the 2009 Rules. Where a charge is allocated for Court Martial trial, the Director of the Service Prosecuting Authority must serve advanced information consisting of relevant statements and exhibits on all parties. Upon receipt of such advanced information, the Court Martial must set a date for preliminary proceedings before a Judge Advocate. In the preliminary proceedings the Judge Advocate, amongst other things, may make a ruling in relation to any question of law, practice or procedure relating to the case. Rule 50(1) provides that:
"The Appeal Court shall have jurisdiction to hear an appeal against any order or ruling made in preliminary proceedings."
[11]In this case the Judge Advocate's ruling was made in preliminary proceedings. On behalf of BSH, it is argued that notwithstanding what is said in Rule 50(1), there is no right of appeal because such a right does not exist in relation to proceedings relating to a trial on indictment. In H and J [2019] EWCA Crim. 1863 this court was concerned with a decision by the then Judge Advocate General that the Court Martial had no jurisdiction to consider an application to dismiss charges prior to arraignment. This court determined that the Court Martial did have such jurisdiction. Rule 26 required the Judge Advocate to ensure that a process comparable to the procedure in Schedule 3 of the 1998 Act was conducted. This court reversed the Judge Advocate's ruling in that case and directed that the case be listed before a Judge Advocate to hear the application to dismiss.[12]It is submitted on behalf of BSH that H and J, in requiring the application of comparable processes to that of the Crown Court, supports the proposition that there is no right of appeal against dismissal of charges by a Judge Advocate, there being no such right in the Crown Court.[13]It is also argued that there is an apparent conflict between Rule 50 of the 2009 Rules and the way in which a defendant in the Crown Court will expect to be dealt with. This conflict, it is said, should be resolved in favour of BSH so as to prevent there being any right of appeal against an order dismissing the charges.[14]We are satisfied the prosecution does have a right of appeal against the ruling made by the Judge Advocate General in this case. Rule 50(1) of the 2009 Rules is unequivocal in its terms. This court has jurisdiction to hear an appeal "against any order or ruling". BSH's reliance on H and J is misplaced. That case established via Rule 26 the jurisdiction of the Court Martial to dismiss charges prior to arraignment. It explained that the requirement on the Judge Advocate to conduct proceedings in a way comparable to the Crown Court meant that a process similar to that provided for in schedule 3 of the 1998 Act had to be adopted. The case said nothing at all about an appeal from a decision to dismiss the charges. The case did not concern itself at all with Rule 50.[15]The absence of any route of appeal from a dismissal of charges in the Crown Court arises from the relevant statutory framework. The 1998 Act allows the preferring of a voluntary bill where charges have been dismissed. That provision would be otiose were there to be a right of appeal. Section 58 of the 2003 Act, which gives the prosecution a right of appeal in relation to an adverse ruling, assumes the acquittal of the defendant. Dismissal of charges does not lead to acquittal.[16]This comprehensive statutory framework has no application to the Court Martial. The saving provision in Rule 26 of the 2009 Rules is concerned with the conduct of the proceedings in the Court Martial, not the question of appeal. Neither expressly nor by implication does Rule 26 or any other part of the statutory framework override the clear terms of Rule 50. We are satisfied there is no conflict of the kind advanced on behalf of BSH. The proposition that in some way obtaining a voluntary bill involves the surmounting of a much higher hurdle than a successful appeal against a dismissal ruling in this court is in our view misconceived.[17]We turn to the substance of the prosecution's application for leave to appeal. The charges against BSH relate to alleged conduct in November 2022. BSH was then an instructor at the Infantry Training Centre, Catterick. One of the trainees was a young female (to whom we shall refer as C) who was born in April 2005.[18]The case against BSH arises from an investigation into another instructor (to whom we shall refer as Z). In March 2023, C provided Service Investigators with an ABE interview in which she gave an account of her contact in November 2022 with Z. In short form, Z had contacted her via Instagram. He had engaged in sexualised conversation with her. C told the investigators that she had agreed to have sex with Z who had arranged for a room where they could meet. C then decided not to go. Subsequently Z came to C's room where they had sex. C said nothing about any other sexual relationship during this ABE interview, although it is not clear whether she was asked any question which would necessarily have prompted her to do so.[19]In any event, because of C's allegations, Z's mobile telephone was examined. Forensic investigators were able to recover WhatsApp messages between Z and BSH. The case against BSH rests on the content of what he said to Z in the context of the evidence as a whole. It is common ground that the evidence as a whole established a prima facie case that the person about whom BSH and Z were messaging each other was C. The relevant dates are as follows: 5 November 2022. BSH to Z:
"She's starting to pussy out bro, messaged her today about coming over tonight and spending the whole of Sunday here before going back to camp ... she does not want to be known as a 'sleep around girl'..." 9 November 2022. Z to BSH: "
What's she after anyway? Want some crazy triple anal or sommat?" BSH - Z:
"Nothing I don't think bro ... she wants to start something but she doesn't want to do it in training... " 12 November 2022 (in the middle of the evening) Z to BSH: "
What did you get up to?" BSH to Z:
"Watched waking dead bro, had food and chatted a lot. Also had good saucy time ... Messaging her now that we're going to have to slow it right down ... don't want to risk my career now after 19th."
We interpose. The "19th" appears to be a reference to the coming into force of the Armed Forces Zero Tolerance Policy for Unacceptable Sexual Behaviour on 19 November 2022. The policy itself was published well before that date. Returning to the messages: 13 November 2022 (in the early hours) BSH to Z:
"One might say she is struggling to walk a little."
Z to BSH: "Bum time?" BSH to Z: "No no just rattled hard." 18 November 2022. Z to BSH: "Do we report this guy in Harrogate for shagging somebody who is barely 16?" BSH to Z: "That's really dodgy mate ... the recruits should have said something - at least my maid hit 18." Z to BSH: "She's only 17 aha." BSH to Z: "I'm sure she recently turned 18."[20]On 26 January 2023 there was an exchange of messages in which BSH said that he was not going to have another secret rendezvous, to which Z replied that this was probably for the best because "be fucked if she ever told anyone". BSH responded by saying:
"Yeah probably bro, I'm not too worried. We still as friends in all honesty, we're really close in all fairness."
[21]BSH's telephone was examined after the messaging between him and Z was identified. It showed that in February 2024 he received explicit messages from C which indicated that they had been in a sexual relationship at some point. BSH's replies to those messages could not be retrieved. The messages in themselves did not make it clear when that sexual relationship had taken place.[22]BSH was interviewed under caution by the Service Police on 14 March 2024. The messaging between him and Z was put to him. He made no comment throughout.[23]In his ruling, the Judge Advocate set out the messages on which the prosecution relied in very considerable detail. He set out the messages which we have highlighted but made reference to others surrounding them. He said that his task was to consider whether the totality of the messages was sufficient to allow the case to proceed. He read a passage from the 2025 Edition of Archbold at paragraph 1-54:
"The relevant words also require the judge to take into account the whole of the evidence against a defendant. It is not appropriate for the judge to view any evidence in isolation from its context and other evidence any more than it is appropriate to derive a meaning from a single document or from a number of documents without regard to the remainder of the document or the other connected documents before the court. Nor is the judge bound to assume that a jury might make every possible inference capable of being drawn from a document against the defendant. The judge must decide not only whether there is any evidence to go to a jury, but whether that evidence is sufficient for a jury properly to convict. That exercise requires assessment of the weight of the evidence. This is not to say that the judge should be a substitute for the jury. The question is not whether the defendant should be convicted on the evidence put forward by the prosecution, but the sufficiency of that evidence. Where the evidence is largely documentary, and the case depends on the inferences or conclusions to be drawn from it, the judge must assess the inferences or conclusions that the prosecution propose to ask the jury to draw from the documents, and decide whether the jury could properly draw those inferences and come to those conclusions..."
[24]The Judge Advocate General then said, having considered the messages carefully, he did not consider that a properly directed Board could be satisfied so that they were sure that BSH had engaged in sexual activity with C when they were together on 12 November 2022. He decided that the Board could not rule out that the messaging amounted to "laddish hyperbole", namely discussion of expectations of what might happen.[25]On an application to dismiss the charges in the Crown Court, the statutory test to be applied by the judge is to ask whether it appears to him that the evidence would not be sufficient for the applicant properly to be convicted. This is the same test as generally applied when a submission of no case to answer is made at the close of the prosecution case.[26]In written submissions on behalf of the appellant in this case, it is said that where the prosecution case is based on circumstantial evidence, the question is whether a reasonable jury would be entitled on the whole of the evidence to infer guilt. That is not the same as saying the prosecution have to show that any jury would be bound to reach that conclusion. Put another way, the question is whether a reasonable jury, not all reasonable juries, could on a possible view of the evidence draw the necessary adverse inference. Those principles are said to come from Jabber [2006] EWCA Crim. 2694 and G and F [2012] EWCA Crim 1756. The appellant acknowledges that those authorities were not cited to the Judge Advocate General but nonetheless it is argued that they are relevant to this case.[27]The passage cited by the Judge Advocate General comes from the judgment in R v (Inland Revenue Commissioners) v Crown Court at Kingston [2001] EWHC Admin 581. That case concerned an alleged conspiracy to defraud the Revenue. It depended on the inferences to be drawn as to the defendant's supposed knowledge of the fraudulent nature of a tax scheme from a welter of documents. As the passage makes clear, it relates to cases where the evidence comes from documents. It may be that the Judge Advocate General simply citing it from Archbold did not appreciate the very limited relevance it had to the facts of this case.[28]This was not a case of circumstantial evidence and the proper inferences to be drawn from that evidence. The core case for the prosecution was that the messaging from 12, 13 and 18 November read as a whole amounted to an admission by BSH of sexual activity with C. An admission is direct evidence of the offence having been committed by the accused. The Judge Advocate's conclusion was that the Board could not be sure that the apparent admission in fact was not some kind of boorish bragging. With great respect to the Judge Advocate General that was very much an issue of fact for the Board. He did not say that no reasonable Board could have taken the totality of the messaging by BSH as an admission of sexual activity. This is not surprising given the terms of the messaging. On 12 November, BSH spoke of having had "good saucy time" and that he and C would have to "slow it down" in the context of imminent zero tolerance policy. Six days later he referred to his "maid" being 18 in the context of a conversation about having sex with young recruits. None of this can reasonably be described as "laddish hyperbole". If anything it is mundane and matter of fact messaging and conversation.[29]The existence of material which a reasonable Board properly directed could conclude amounted to an admission of sexual activity with C is a complete answer to the proposition that there was insufficient evidence to convict BSH. We acknowledge that there was no evidence from C. This was a matter which concerned the Judge Advocate General. But the lack of evidence from C did not undermine the effect of the messages sent by BSH. What C would say if asked about BSH and what he had said in his message is a speculative exercise. The Judge Advocate referred "in the absence in particular (of) any form of complaint of C" as a factor in his conclusion. In our view, at the point he was considering the issue of sufficiency of evidence, this feature of the case was wholly neutral.[30]There was discussion in the course of the hearing as to the significance (if any) of BSH's lack of any comment in his interview. This discussion was inconclusive. Neither party drew the attention of the Judge Advocate General to section 34(2)(b) of the Criminal Justice and Public order Act 1994. A judge deciding whether to dismiss charges pursuant to the 1998 Act may draw such inferences from a failure to mention something in interview as appear proper. In this case, BSH had been asked about the messages which appear to consist of admissions by him of sexual activity with C. He had said nothing. He had not said that the messages were just "boorish bragging" or "laddish talk". The Judge Advocate General would have been entitled to draw an adverse inference, namely that BSH recognised the messages for what they were and could offer no explanation for them.[31]In all those circumstances, we grant leave to appeal. We quash the ruling of the Judge Advocate General. The charges against BSH will proceed in the Court Martial in the usual way. Commander Hannah, is it proposed that this respondent should now join the trial that is due to take place in relation to the other sergeant? COMMANDER HANNAH: I think in all likelihood, my Lord, given the indication from the Judge Advocate General at an early stage of proceedings that it is likely that the trial will take place at a later date. But the prosecution's position is that it will be one trial of both defendants. There may be some legal argument about that in due course. LORD JUSTICE WILLIAM DAVIS: I see. So it will now go back to the Court Martial, where there will presumably be a further preliminary hearing to discuss the issue of separate trials? COMMANDER HANNAH: Yes, my Lord. LORD JUSTICE WILLIAM DAVIS: Then the case should be listed. COMMANDER HANNAH: Yes. It is listed on Monday for a case management hearing in anticipation of whatever the outcome of this might be. LORD JUSTICE WILLIAM DAVIS: You should have a transcript for Monday. COMMANDER HANNAH: I am grateful, my Lord. Is there anything else I can assist the court with? LORD JUSTICE WILLIAM DAVIS: I do not think so. Anything from you, Mr Hand? MR HAND: My Lords, my Lady, no thank you. LORD JUSTICE WILLIAM DAVIS: Thank you both for your assistance. 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 1JE32. Tel No: 020 7404 140033. Email: rcj@epiqglobal.co.uk