Appleyard, R. v

Under Army Act 1955 section 96, a court-martial must determine its verdict by a majority of its members’ votes. That requirement does not prevent a judge advocate from directing the Board first to seek a unanimous verdict, provided that a majority verdict remains available if unanimity cannot be reached.

A direction should make that position express. A failure to use the preferable form will not invalidate convictions where, read as a whole, the directions left no real risk that a lawful majority verdict would be refused. On sentence, totality may justify altering when a consecutive sentence takes effect, even where each individual sentence is appropriate.

The appellant appealed against convictions at a court martial held at Catterick in December 2004. He contended that the judge advocate’s direction to seek unanimity was inconsistent with the statutory requirement for majority verdicts and impaired the Board’s independence and impartiality. He also appealed the sentence of 297 days’ detention and reduction to the ranks.

A separate appeal, brought with leave of the single judge, concerned sentences imposed after the appellant pleaded guilty at a further Catterick court martial to two indecent assaults on a young female trainee. He was dismissed from Her Majesty’s Service and sentenced to nine months’ detention consecutive to the earlier sentence. The central issues were the validity of the unanimity direction and whether the sentences were excessive or offended the principle of totality.

1. The appeals against conviction were dismissed. Section 96 of the Army Act 1955 requires verdicts to be determined by a majority. It does not prohibit a judge advocate from directing Board members to seek unanimity at the start of their deliberations. A unanimous verdict is preferable if every member can conscientiously reach it.

2. The judge advocate had no power to refuse a majority verdict. However, his directions did not purport to require repeated determinative votes until unanimity was achieved. Any informal sounding during discussion would not be a determinative vote. If unanimity proved impossible, the Board would return a majority verdict after the appropriate further direction or communication to the judge advocate.

3. The preferable practice is to state expressly that the Board is entitled ultimately to return a majority verdict, while inviting it initially to seek unanimity. Although the directions did not precisely adopt that formulation, viewed as a whole they did not create a risk that a majority acquittal or conviction would be rejected. There was therefore no basis to quash the convictions.

4. The prescribed reverse order of seniority for voting was followed. The judge advocate also correctly stressed that every member’s opinion was equal and that the presiding officer did not decide the case. The suggestion that junior officers would not act independently or impartially did not withstand analysis.

5. The first sentence appeal was dismissed. The Board was entitled to treat the appellant’s attempt to involve a young soldier in perverting the course of justice as serious misconduct and a breach of trust. There was no basis to interfere with the detention and reduction in rank.

6. The second sentence appeal was allowed to a limited extent. Imprisonment for the indecent assaults was appropriate, given the appellant’s position as an instructor and the need to protect young servicewomen. The individual sentences were not altered, but totality required that the nine-month sentence run from the date of conviction rather than consecutively from the expiry of the earlier sentence.

• Courts Martial Appeal Court (Criminal Division): dismissed the appeals against conviction and the first sentence; allowed the second sentence appeal only by ordering the nine-month sentence to run from the date of conviction.

• Court martial at Catterick, December 2004: convicted the appellant and sentenced him to 297 days’ detention and reduction to the ranks.

• Court martial at Catterick, March 2005: following guilty pleas to two indecent assaults, sentenced the appellant on 4 April 2005 to dismissal from Her Majesty’s Service and nine months’ detention consecutive to the earlier sentence.