Khan v Royal Air Force Summary Appeal Court

A genuine conscientious objection does not, without more, provide a defence to absence without leave under service discipline law. A recalled reservist is treated in principle as a volunteer who remains bound by the undertaking to answer recall.

Article 9 does not require an express reference to conscientious objection in recall materials where the applicable law sufficiently provides for exemption through compassionate grounds and established service procedures. A belief is ordinarily not manifested to the service, and interference does not ordinarily arise, until the reservist has formally raised the objection and applied for discharge or another appropriate status. Any interference in this case was in any event justified by the need to maintain military discipline.

The appellant, a Muslim reservist, was recalled under section 54 of the Reserve Forces Act 1996 and later failed to report for duty. He said that participation in the impending military operation against Iraq was contrary to his religious beliefs. His conscientious objection was accepted as genuine, but he had not raised it before going absent or made a formal application under the RAF procedure.

The RAF Summary Appeal Court held that conscientious objection was no defence to absence without leave and dismissed his appeal. The case was stated to the Divisional Court, which had to determine whether conscientious objection could constitute a defence under article 9 and whether the failure expressly to identify conscientious objection in the recall information breached the Convention.

1. Appeal dismissed. The questions stated by the RAF Summary Appeal Court were answered in the negative.
2. The court rejected the proposition that a recalled reservist is equivalent in principle to a conscript. A reservist had originally volunteered and had agreed to remain liable to recall. The distinction did not depend on whether a change of conscience might be practically more difficult after recall.
3. The right to invoke conscientious objection was prescribed by law. The Reserve Forces (Call-Out and Recall) (Exemptions Etc.) Regulations 1997, made under section 78(1) of the Reserve Forces Act 1996, permitted an application on any other ground which the adjudication officer ought to consider for compassionate reasons. That provision could include conscientious objection. The RAF Queen’s Regulations and AP 3393, Volume 5, Leaflet 113 supplied the relevant procedure for discharge on grounds of conscience.
4. The requirements that law be accessible, foreseeable and compatible with the rule of law were satisfied. Although the recall materials did not expressly mention conscientious objection, they identified the compassionate-ground procedure, gave full information about contacting the adjudication officer and provided repeated opportunities to raise concerns.
5. Even assuming that conscientious objection fell within article 9(1), the appellant had not established a relevant manifestation or interference at the material times. This was a fact-sensitive issue. In the circumstances, he needed to inform the service of the objection and make a formal application. He went absent before raising the objection and never formally applied before arrest, prosecution or conviction.
6. Any interference arising from arrest, prosecution, conviction or punishment was justified under article 9(2). The RAF was entitled to maintain recall and discipline persons accepted into service who absented themselves before invoking the conscientious-objection procedure.
7. The court regarded the Strasbourg jurisprudence on article 9 and conscientious objection as unsettled, but considered itself bound by Sepet v Secretary of State for the Home Department [2003] UKHL 15 in concluding that article 9 could not provide a defence on these facts. The court added that the information given to recalled reservists could usefully be improved as a matter of best practice.

There was no order as to costs, save for detailed assessment of the appellant’s publicly funded costs.

• RAF Summary Appeal Court: accepted that the conscientious objection was genuine but held that it was no defence to absence without leave and dismissed the appeal.
• High Court (Administrative Court): answered the stated questions against the appellant and dismissed the appeal: [2004] EWHC 2230 (Admin).