Armstrong, R v

Section 69 of the Army Act 1955 requires proof of conduct, objectively prejudicial to both good order and military discipline, and basic mens rea. It does not require that the conduct was, or was likely to become, known to another member of the military community, nor that the accused foresaw its discovery. Concealment may instead aggravate the prejudicial character of the conduct.

Where conduct constitutes an ordinary criminal offence, it should ordinarily be charged as that offence rather than under section 69, save in wholly exceptional circumstances. A Court Martial judge who considers a charging decision seriously unjust must use the established referral procedures; the judge may not refuse to proceed by adding elements to the statutory offence.

The respondent, a serving Army officer, pleaded guilty at a Court Martial to four charges under section 69 of the Army Act 1955. The charges concerned possession of a damaged pistol, ammunition, a morphine auto-injector and classified documents retained on personal computer equipment.

The Assistant Judge Advocate General declined to accept the pleas and, after trial proceedings, ruled that there was no case to answer. He treated section 69 as requiring proof that the conduct was or might become known within the military community and that the respondent intended or foresaw that possibility. The Crown appealed against that terminating ruling. The appeal also raised the proper course where a Court Martial judge disagrees with the prosecutor’s chosen charges.

1. Appeal allowed. The terminating ruling was wrong. The respondent had a case to answer on each charge under section 69 of the Army Act 1955.

2. Section 69 contains four ingredients: conduct; conduct objectively prejudicial to good order; conduct objectively prejudicial to military discipline; and basic mens rea. The latter requires intentional conduct or recklessness, not a specific intent. The prejudicial character of the conduct is assessed objectively.

3. The judge wrongly added requirements that the conduct or its consequences had become, or might become, known to another person in the military community, and that the accused intended or foresaw that possibility. Neither requirement appears in the statutory language. Deliberately concealing misconduct does not exonerate the accused; it may aggravate its prejudicial effect. The retention of ammunition and highly classified documents was plainly capable of prejudicing both good order and military discipline, notwithstanding that it was discovered only on investigation.

4. The court followed R v Dodman [1998] 2 Cr App R 338, which established that the offence is one of basic, rather than specific, intent. Conduct constituting a specific offence under ordinary criminal law should ordinarily be charged as that offence, not used as a means of securing a conviction under section 69 without proving the substantive offence’s ingredients. The court did not decide whether wholly exceptional circumstances justified the charges in this case.

5. Section 69, so construed, satisfied the legal-certainty principles under Article 7 of the Convention. A judge who considers a military prosecutor’s charging decision seriously unjust should seek referral to the Director of Service Prosecutions or the Attorney-General, as appropriate. The judge should not refuse pleas, insist on a trial, and then disregard binding authority.

6. The trial was directed to continue. In light of the judge’s earlier observations, sentencing was to be conducted by another judge at a different Court Martial centre.

• Courts Martial Appeal Court: the Crown’s prosecution appeal was allowed. The court held that the respondent had a case to answer under section 69 of the Army Act 1955.
• Court Martial at Military Court Centre, Bulford: the Assistant Judge Advocate General declined to accept guilty pleas and ruled that there was no case to answer on four section 69 charges.