James, R v

Where a trusted member of the Armed Forces communicates, or intends to communicate, information that may assist an enemy while serving in a theatre of military operations, deterrence is a fundamental sentencing consideration. The absence of proved operational damage does not remove the grave potential harm arising from intended betrayal of serving colleagues and allied forces.

Sentencing must reflect the offender’s true criminality and culpability for the offence of conviction. A substantial custodial sentence may therefore be justified where the conduct undermines military trust, intelligence-sharing and the safety of personnel in an active conflict zone.

The appellant, an Army interpreter attached to the commander of the International Security Assistance Force in Afghanistan, was convicted at the Central Criminal Court before Roderick Evans J of communicating information which was calculated, might be, or was intended to be useful to an enemy.

He had sent emails to the Iranian Military Attaché after establishing a clandestine relationship. The information caused no proved direct operational damage, but the relationship damaged trust between NATO forces and the Afghan Government and created a serious potential for harm. He was sentenced to ten years’ imprisonment.

He appealed against sentence, contending that communication was less serious than an unproved allegation of collecting sensitive information and that he was not a professional spy. The central issue was whether the ten-year sentence was manifestly excessive.

1. Appeal dismissed. The ten-year sentence was not manifestly excessive. It properly reflected the appellant’s criminality and culpability for the sole offence of which he was convicted.

2. The offending conduct was exceptionally serious because the appellant had been trusted in a highly sensitive role while British and allied forces were engaged in an active armed conflict. His access to the commander of ISAF and sensitive meetings placed him in a unique position to assist a foreign military contact. The intended betrayal of colleagues serving in a war zone was a powerful aggravating feature.

3. The court accepted, for the purposes of the argument, that the communication proved might have been less serious than the collection offence on which the jury had not reached a verdict. That did not reduce the gravity of the proven offence. Had both offences been proved, consecutive sentences might have required consideration to reflect total culpability.

4. No direct operational harm resulted from the emails, and the relationship with the Iranian contact was at an early stage. Nevertheless, the conduct created an immense potential for serious harm. It also caused actual damage to relations between NATO forces and the Afghan Government, with a consequent risk of making service personnel’s work more hazardous.

5. The court repeated and endorsed the deterrent approach in R v Smith [1996] 1 CAR(S) 202. In rare cases of possible treachery by a trusted member of the Armed Forces, deterrence is fundamental even where disclosure has been stopped before actual damage is proved. The appeal against sentence was therefore dismissed.

• Court of Appeal (Criminal Division): dismissed the appellant’s appeal against the ten-year sentence.

• Central Criminal Court: Roderick Evans J convicted the appellant on 5 November 2008 and sentenced him on 28 November 2008 to ten years’ imprisonment.