Price & Anor v R

For negligent performance of duty under Armed Forces Act 2006, section 15(2), the standard is objective. It is that of a reasonable serviceman with the accused’s relevant training, knowledge and experience at the time of the duty. It does not incorporate the accused’s individual shortcomings or weaknesses.

A failure to prove the charged particulars does not itself prove negligence. The tribunal must decide whether the proved acts or omissions fell below that objective standard. Dismissal from service is not automatic following negligent weapons handling, even where death results. The court must assess the offence’s seriousness, future risk and continuing suitability for service.

During a live-firing exercise in Kenya, a general purpose machine gun suffered a hard extraction stoppage. Corporal Bell attempted to clear the weapon. It discharged and killed Fusilier Wilkinson.

Bell pleaded guilty before the Court Martial to negligently performing his duty. Staff Sergeant Price, the range safety supervisor, was convicted after trial of negligently failing to ensure safe handling of the weapon. Both men received service detention and dismissal from Her Majesty’s service.

Price appealed against conviction and sentence. Bell appealed against sentence. The principal issues were the objective standard of care under section 15(2) of the Armed Forces Act 2006, the adequacy of the Judge Advocate’s directions, and whether dismissal and the detention terms were excessive.

1. Price’s appeal against conviction was dismissed. In the service context, the section 15(2) standard is objective but is assessed by reference to a reasonable serviceman with the accused’s relevant training, knowledge and experience. The accused’s personal weaknesses or deficiencies are not attributed to that reasonable person. Otherwise a deficient skill set could prevent any finding of negligence.

2. The relevant assessment was the appellant’s accumulated training, knowledge and experience when he undertook the supervisory role. The Judge Advocate was entitled to direct the Board not to decide whether the original appointment had been wise. He did not exclude evidence of the appellant’s earlier lack of experience, but properly directed attention to his position at the material time.

3. The directions did not treat proof of a charged particular as conclusive of negligence. The Board was required both to find the facts and to decide whether they proved a failure to meet the objective standard. Nor could expert evidence alone determine negligence. The Board had to make its own assessment in the light of all the evidence, including the limits of the appellant’s training and the pressures of the exercise.

4. There was a case for Price to answer on the failure to ascertain the nature and safety of the stoppage and to prevent unsafe movement of the weapon. The Board’s findings were safe. Price had failed to intervene despite a hard-cocked weapon and the applicable safety instruction requiring the weapon to remain in place while an armourer was called.

5. The appeals against sentence were allowed. The court applied the caution in Dowding [2010] EWCA Crim 739 that a Court Martial’s assessment of continued service merits respect, but exercised its own judgment because no explanation had been given for treating these offences as incompatible with further service. Consistently with Blaymire [2005] EWCA Crim 3019, negligent weapons handling did not automatically require dismissal.

6. The negligence was serious and death required immediate detention, but it was not a reckless disregard for safety at the top of the sentencing range. The court substituted 15 months’ detention for Price and 12 months’ detention for Bell. It quashed dismissal in each case and substituted reduction to the rank of private soldier.

Procedural history

• Court of Appeal (Criminal Division) Price’s conviction appeal was dismissed. Both sentence appeals were allowed: detention terms were reduced, dismissal was quashed, and reduction to private soldier was substituted.
• Court Martial Bell pleaded guilty on 21 January 2013. Price was convicted after trial on 14 June 2013. On 11 July 2013, Price received 21 months’ service detention and dismissal; Bell received 14 months’ service detention and dismissal.