Gunn v Service Prosecuting Authority

The Armed Forces Act 2006 permits a Court Martial board to comprise suitably qualified personnel from any Service. It does not require every lay member to be drawn from the defendant’s Service.

Paragraph (4), sentence [1], of the Queen's Regulations for the RAF establishes the sensible usual practice of using lay members from the defendant’s own Service. The word ordinarily does not make that practice mandatory or jurisdictional. A board constituted otherwise is not thereby invalid, and the regulation is compatible with the wider statutory scheme.

The appellant, an RAF sergeant, was convicted by a Court Martial of battery contrary to section 42 of the Armed Forces Act 2006. The board of lay members comprised Army personnel only. He was reduced in rank.

A differently constituted Full Court granted leave on the issue whether the absence of an RAF lay member meant that the Court Martial lacked jurisdiction: [2018] EWCA Crim 1384. A later hearing refused renewed leave on other grounds and directed determination of that issue: [2019] EWCA Crim 1238.

The central question was whether paragraph (4) of the Queen's Regulations for the RAF required an RAF defendant to be tried by a board including an RAF member.

1. Appeal dismissed. The Court Martial was properly constituted. Sections 154 to 157 of the Armed Forces Act 2006 permit lay members who are qualified officers or warrant officers from any of Her Majesty’s forces. The provisions do not prohibit a mixed board or a board whose members are drawn from a Service other than that of the defendant.

2. The Queen's Regulations for the RAF remained in force as delegated legislation. They were not primary legislation, and would yield to inconsistent primary legislation. However, no conflict arose on the present issue.

3. Paragraph (4), sentence [1], states the usual practice: a Service defendant will ordinarily be tried by lay members wholly from that Service. It does not say, and does not imply, that this must occur in every case. It therefore neither imposed an invariable same-Service requirement nor made a differently composed Court Martial invalid or without jurisdiction.

4. Sentences [2] and [3] of paragraph (4), concerning co-defendants from different Services, addressed a different concern: actual or apparent Service partisanship. The Court did not decide whether those sentences created mandatory requirements. It invited the Defence Council to clarify them for future cases.

5. Alternatively, even if there had been an irregularity, the conviction was safe. The appellant’s former counsel had declined an available RAF board for listing reasons. The issue at trial was the straightforward proof of battery, requiring no specialist RAF knowledge, and the appellant suffered no prejudice from the Army board.

• Court of Appeal (Criminal Division): dismissed the appeal, holding that an Army-only board could properly try the RAF appellant.

• Court of Appeal (Criminal Division): granted leave on the board-composition issue: [2018] EWCA Crim 1384. A later constitution refused renewed leave on other grounds and directed the issue for hearing: [2019] EWCA Crim 1238.

• Court Martial: convicted the appellant of battery on 27 February 2017 and reduced him in rank from Sergeant to Corporal on 28 February 2017.