Stables, R. v

Where a Court Martial’s sentencing remarks clearly disclose the Board’s reasons for conviction, an appellate court may examine them. If those reasons reveal an error, the conviction is unsafe.

A conviction based on an unreasonable belief in consent cannot stand where the Board’s findings leave no rational basis for treating that belief as unreasonable. The findings must be assessed together, including prior consensual sexual conduct, the circumstances immediately before the act, and any failure to prove that the complainant had communicated a refusal.

The appellant, a Royal Navy medical-assistant trainee, was convicted at a Court Martial of assault by penetration by a majority of four to one. He was sentenced to 12 months’ military detention and consequential orders.

The Board’s sentencing remarks found prior consensual sexual contact, circumstances which gave the appellant some justification for believing there might be further consensual activity, and that the complainant’s alleged refusal had not been proved. The Board nevertheless concluded that he may have believed she was consenting but that any such belief was unreasonable.

On an appeal against conviction brought with the leave of Henriques J, the central issue was whether those findings could rationally support the conviction.

1. Appeal allowed; conviction quashed. The sentencing remarks plainly stated the Board’s reasons for convicting. The court therefore rejected the Crown’s submission that they should not be examined. Although a jury is not ordinarily asked to explain its verdict, an appellate court must intervene if reasons given by a convicting Board reveal an error.

2. The Board had found that the appellant and complainant had recently engaged in consensual kissing and sexual touching. It found that they entered her cabin by unspoken agreement, that she got into or onto the bed with him, asked for the light to be turned off, and allowed him to stay the night. It further found that he believed there might be further consensual sexual activity and had some justification for that belief.

3. The Board was not satisfied that the complainant had said no, as she alleged. That finding meant that an important part of the prosecution case, namely that she had made her lack of interest clear, was not proved.

4. The Board also found that the appellant may have believed that the complainant was consenting. In the light of the directions and the Board’s findings, that entailed that he believed or may have believed that she was awake. Against the full factual background, the court could identify no rational basis on which the Board could properly conclude that his belief in consent was unreasonable.

5. The Board’s conclusion was one it could not properly have reached. The conviction was consequently unsafe and was quashed.

• Court of Appeal (Criminal Division): In [2010] EWCA Crim 2405, allowed the appeal against conviction and quashed the conviction.
• Court Martial: On 11 June 2010, convicted the appellant by a majority of four to one of assault by penetration and later imposed 12 months’ military detention with consequential orders.