Twaite, Re Appeal against conviction

A conviction by a Court Martial Board’s simple majority is not inherently unsafe and does not, without more, infringe the right to a fair trial. Section 160(1) of the Armed Forces Act 2006 lawfully permits majority findings, including where a serious custodial sentence may follow.

After a verdict, the Judge Advocate is functus officio on guilt and cannot use the termination power to set aside the Board’s finding. A conviction is unsafe, however, where an equivocal route to verdict permits conviction for post-event non-disclosure when the charge alleges only false representation. The appellate court must quash such a conviction and may refuse a retrial where justice does not require one.

Flight Lieutenant Timothy Twaite was convicted by a four-to-one majority at a Court Martial of fraud by false representation. The charge alleged that his application for service family accommodation falsely represented that he would marry on 29 August 2008.

Although he occupied the accommodation before that date, he did not marry until a year later. No alternative charge alleged fraudulent failure to disclose after the planned marriage did not occur. The Board’s route to verdict nevertheless allowed it to consider whether he had later realised that his earlier representation had become untrue or misleading.

During sentence deliberations, the Judge Advocate learned that the Board had convicted because of his conduct after 29 August 2008. She terminated the proceedings and the Judge Advocate General referred questions concerning majority verdicts, the Judge Advocate’s powers after verdict, and retrial. The appellant also challenged the safety of the conviction.

1. The appeal was allowed. The conviction was unsafe and was quashed. No retrial was ordered.

2. Section 160(1) of the Armed Forces Act 2006 provides for majority findings by a Court Martial. A simple-majority conviction is not inherently unsafe merely because a minority member entertains a reasonable doubt. That conclusion does not change where the offence carries a substantial maximum sentence. Majority findings also do not, of themselves, violate Article 6 of the ECHR. A declaration of incompatibility was therefore inappropriate.

3. The Board should be asked only whether it finds the defendant guilty or not guilty. The verdict is the verdict of the Court Martial. The individual votes and the fact or extent of any majority must never be revealed. This protects the confidentiality of the Board’s deliberations. The Judge Advocate General’s guidance should be reviewed accordingly.

4. Once the Board returned its verdict, the Judge Advocate had no jurisdiction to terminate the proceedings under Rule 25(3) of the Armed Forces (Court Martial) Rules 2009 in order to undo that finding. She was functus officio on guilt. The available course was to proceed or adjourn sentence while enabling an urgent appeal; only the appellate court could set the verdict aside.

5. The Board appears to have found dishonesty only when the appellant failed to marry on 29 August 2008. That was capable of supporting an allegation of failure to disclose under section 3 of the Fraud Act 2006, but not the charged allegation of false representation under section 2. Question 2 was equivocal and was not apt to determine post-29 August dishonesty. Since a retrial could proceed only on the existing charge, and the Board had not been satisfied of guilt before that date, a retrial would be artificial and was not in the interests of justice.

• Court Martial Appeal Court: On the appellant’s challenge and a reference under section 34 of the Court Martial Appeals Act 1968, the court allowed the appeal and quashed the conviction: [2010] EWCA Crim 2973.
• Court Martial, Colchester: The appellant was convicted by a four-to-one majority of fraud by false representation. During sentencing, the Judge Advocate purported to terminate the proceedings after identifying a flaw in the Board’s reasoning.