Lyons v R

A serving volunteer who claims conscientious objection does not acquire a unilateral right to refuse military duties while the claim or an appeal is unresolved. A procedure requiring the claim to be properly determined before release may be a lawful and proportionate limitation on rights under article 9 of the European Convention on Human Rights, given the need to protect service personnel, operational effectiveness and others.

A medical assistant’s protected status does not make weapons training unlawful. Further, section 12 of the Armed Forces Act 2006 does not require proof that the accused knew or believed the command to be lawful.

The appellant, a Royal Navy medical assistant, applied for discharge as a conscientious objector after learning that he was to be deployed to Afghanistan. His application was refused and he appealed to the Advisory Committee on Conscientious Objectors.

Before that appeal was determined, he refused an order to undertake weapons training required for operational deployment. A General Court Martial at Portsmouth convicted him of intentionally disobeying a lawful command contrary to section 12(1)(a) of the Armed Forces Act 2006, and imposed military detention, reduction in rank and dismissal.

He appealed against conviction and sentence, contending that article 9, protected medical status under the Geneva Conventions, and his honest belief in unlawfulness provided a defence.

1. Appeal dismissed. The judge advocate correctly directed that refusal of the weapons-training order, while the appellant’s conscientious-objection appeal remained outstanding, was no defence to disobeying a lawful command.

2. Article 9 was capable of applying to a volunteer who later developed a genuine conscientious objection. Voluntary entry into service was, however, highly material to the balance required by article 9.2. The conscientious-objection procedure described by the court was prescribed by law and necessary in a democratic society to protect public safety, public order and others. Until a claim had been established, the service member remained subject to military discipline. Notice of an appeal could not make a command optional at the member’s election.

3. Assuming that a medical assistant had protected status under the Geneva Conventions, that status did not prohibit weapons training. Medical personnel retained protected status despite bearing arms for the limited purpose of defence. The Ministry of Defence requirement for weapons training before deployment was an operational policy for the protection of personnel and those in their care. No arguable basis showed that the policy was unlawful.

4. Section 12 of the Armed Forces Act 2006 did not contain an additional requirement that the accused knew or believed the command to be lawful. Reading in such a requirement would seriously undermine the purpose of military discipline. The court left aside the different moral and legal questions that could arise from an order reasonably believed to require a war crime.

5. The sentence was neither wrong in principle nor manifestly excessive. The Board was entitled to regard the sentencing guidance as inadequate because the deliberate refusal was intended to prevent operational deployment and risked morale and operational effectiveness. It was particularly well placed to assess those service consequences.

• Court Martial Appeal Court: dismissed the appellant’s appeal against conviction and sentence.

• General Court Martial at Portsmouth: convicted the appellant of intentionally disobeying a lawful command contrary to section 12(1)(a) of the Armed Forces Act 2006, and sentenced him to seven months’ military detention, reduction in rank and dismissal from the service.