Mulgrew & Anor v R.

Where a Court Martial Board reaches a factual case materially different from that put by the parties, a conviction may be unsafe if the accused were not given an opportunity to meet that case. This is especially so where the new factual findings make self-defence material and change the forensic issues requiring investigation.

A Board may reach an evidentially available conclusion not advanced by either party. That fact alone does not invalidate its verdict. However, a defendant cannot be held party to a joint enterprise to attack while he may have been acting lawfully in self-defence. Appropriate directions must address both self-defence and its interaction with joint enterprise.

At a Court Martial sitting at Sennelager, Trooper Mulgrew and Trooper Richards were convicted of causing grievous bodily harm with intent to Sergeant Wallace and assault occasioning actual bodily harm to Sergeant McGuiness. The prosecution alleged that the defendants had jointly followed the complainants to lavatories to exact revenge after an earlier altercation.

The Board instead found that the complainants had followed the defendants, that the defendants initially got the better of them, and that a joint enterprise to attack was formed only afterwards. It also attributed the punch to McGuiness and the stamping on Wallace to the opposite defendants from those alleged by the prosecution. Sentencing was adjourned. Following a referral by the Registrar, the court granted leave to appeal against conviction.

The central question was whether the convictions were safe despite the absence of directions on self-defence and its interaction with joint enterprise, and despite the defendants having answered a materially different factual case at trial.

1. The appeals were allowed and all convictions were quashed as unsafe.

2. The Board was entitled, provided its conclusion was based on evidence, to reach a factual conclusion for which neither party had contended. Likewise, departure from the agreed Route to Verdict did not itself establish unsafety. The Route was an aid only; the legal directions had not been impugned.

3. However, the Board’s findings created a substantially different case from that which the defendants had answered. It rejected the alleged joint enterprise formed before entry into the lavatories. Its finding that the complainants followed the defendants meant that self-defence immediately arose. Its further finding of a joint enterprise formed only after the defendants had initially prevailed required directions on self-defence and on its interaction with joint enterprise.

4. A defendant could not be party to a joint enterprise to attack another while he was or might have been acting lawfully in self-defence. The Board required assistance on whether the force used was reasonably believed to be necessary, whether it was reasonable in the circumstances, and whether any injury was caused during lawful defensive conduct.

5. The altered findings also deprived each defendant of a fair opportunity to meet the case ultimately found. Richards had not known that he risked being found to have stamped on Wallace, and Mulgrew had not known that he risked being found to have punched McGuiness. The unexamined shoes and the distribution of blood on Mulgrew’s clothing therefore assumed materially different significance. Each might have sought further forensic examination or expert evidence had that case been known.

6. The absence of the necessary directions, combined with that procedural unfairness, rendered every conviction unsafe.

• Court of Appeal (Criminal Division) (Court Martial Appeal Court): Leave to appeal against conviction was granted. The court allowed both appeals and quashed all convictions: [2012] EWCA Crim 2008.
• Court Martial sitting at Sennelager: On 24 February 2012, the appellants were convicted of causing grievous bodily harm with intent and assault occasioning actual bodily harm. Sentencing was adjourned pending the appeals.