Townshend, R v

A Court Martial must treat imprisonment and dismissal as distinct sanctions. A suspended term of imprisonment does not automatically justify dismissal. Where both are imposed, the sentencing reasons should explain why the additional service sanction is necessary and why lesser available sanctions are insufficient.

In sentencing negligent aviation conduct, just culture principles remain relevant. An unintended error may retain that character despite grave consequences, and sentencing must balance service discipline and operational effectiveness against the safety benefit of candid reporting. An appellate court should respect the Court Martial’s specialist expertise, but may correct an unjust and disproportionate combination of penalties.

Flight Lieutenant Townshend pleaded guilty before the Court Martial to negligently performing a duty under Armed Forces Act 2006, section 15(2). While piloting an RAF aircraft with almost 200 people on board, his camera contacted a control stick after he moved his seat, disengaging the autopilot and causing a severe descent. Passengers suffered physical and psychological injury, and the incident had serious operational and financial consequences.

He was acquitted of three further allegations concerning false records and perjury. On 3 March 2017, the Court Martial imposed four months’ imprisonment, suspended for 12 months, and dismissal from Her Majesty’s Service. He appealed against sentence, contending that insufficient regard had been given to aviation just-culture principles and operational effectiveness.

1. Appeal allowed in part. The court quashed the order dismissing the appellant from Her Majesty’s Service. It upheld the four-month term of imprisonment, suspended for 12 months.

2. The court applied the appellate approach in R v Love [1998] 1 Cr App R 458. The Court Martial Appeal Court has a hybrid jurisdiction: it must respect the specialist Court Martial’s superior position on service discipline and efficiency, but may correct an injustice. The court also had regard to R v Glenton [2010] EWCA 930, which confirms the Court Martial’s specialist character.

3. Just-culture principles did not bar the prosecution and did not prevent a finding of high culpability. The appellant’s conduct was objective negligence, not intentional default or recklessness. The lapse was not momentary and created an avoidable risk to those on board. Nevertheless, the principles remained relevant to sentence. They recognise that an unintended error may have serious consequences, and they promote prompt and candid reporting of safety failures. Sentencing therefore required a balance between discipline and operational effectiveness, and the safety interest in encouraging openness.

4. Imprisonment and dismissal were separate sanctions under the available sentencing powers. A conclusion that a custodial term was necessary, but could be suspended, did not automatically require dismissal. The sentencing remarks gave no reasons for imposing that additional and heavy sanction, did not address lesser service sanctions, and did not explain any departure from the available sentencing guidance. The appellant’s favourable service reports also did not suggest that he was unfit for further service.

5. The suspended prison sentence was justified by the high culpability and grave harm. Dismissal, however, went beyond the just and proportionate punishment required on the stated reasons. The dismissal order was therefore quashed.

• Court of Appeal (Criminal Division): In [2018] EWCA Crim 430, allowed the sentence appeal to the limited extent of quashing dismissal from Her Majesty’s Service. The suspended custodial sentence remained in force.
• Court Martial: On 3 March 2017, imposed dismissal from Her Majesty’s Service and four months’ imprisonment, suspended for 12 months, for negligent performance of duty.