Gunn, R. v

Leave to appeal may be granted where an arguable issue arises as to whether a court martial board was properly constituted. The court may defer consideration of other proposed grounds so that newly appointed representation can assess whether they are properly arguable.

Mr Gunn renewed his application for leave to appeal against his conviction for battery by a Court Martial Board. He served in the RAF but had been tried by an Army Board.

The court considered that the interaction between the Queen’s Regulations for the RAF and the Armed Forces Act raised an arguable question about the Board’s constitution. Although the defence had agreed to an Army Board when the trial date was fixed, the court could not determine the advice then given about the effect of the Regulations.

The remaining proposed grounds, including a proposed fresh-evidence issue concerning the Bastion incident, were left for a fresh representative to consider.

1. Leave to appeal was granted on the ground that the Court Martial Board may have been improperly constituted.
2. The appellant’s RAF service and trial by an Army Board raised a substantial issue about the interaction of the Queen’s Regulations for the RAF and the Armed Forces Act. The Regulations appeared to require a differently constituted Board, including at least one representative of the appellant’s service.
3. The court did not decide the legal force of the Regulations. It also could not satisfactorily establish whether the appellant had received advice on that question when the defence agreed to an Army Board at the trial-listing hearing.
4. The other grounds were not adjudicated upon. A representation order was made for a fresh advocate, who could advance those grounds only if properly arguable. This included the proposed fresh-evidence issue concerning an alleged instruction that the Bastion incident could not be raised to establish a possible motive for the complainant to lie.

• Court Martial Board: convicted Mr Gunn of battery.
• Court of Appeal (Criminal Division): on renewal, granted leave to appeal on the Board-constitution ground and ordered fresh representation. The remaining proposed grounds were left for the fresh advocate to assess.