McIntyre, R. v

Where an accused entitled to summary trial elects trial by Court Martial, the Court Martial’s sentencing powers may be limited to those available on summary trial. For a full Army corporal, the statutory limit means that service detention is unavailable. A sentence imposing detention without jurisdiction must be quashed, but a lawful reduction in rank may remain. The appellate court may substitute a severe reprimand after weighing the seriousness of the conduct and the available mitigation.

This was an appeal against sentence following a reference under section 34 of the Court Martial Appeals Act 1968. The appellant, an Army Reserve corporal, was convicted by a Court Martial of battery under section 42 of the Armed Forces Act 2006 after headbutting a superior during a journey from training. He had elected trial by Court Martial although a summary hearing was available. The Court Martial imposed 30 days’ service detention and reduced him to lance corporal.

The central issue was whether the Court Martial had jurisdiction to impose service detention given the appellant’s rank and the statutory limits governing summary trials and elected Court Martial trials, and what sentence should be substituted.

Appeal allowed in part.

1. Battery was an offence listed in Part 1 of Schedule 1 to the Armed Forces Act 2006, for which summary trial was available before the commanding officer under sections 52 and 53. The appellant elected trial by Court Martial under section 129.
2. By section 165 and paragraph 6 of Schedule 3A to the Armed Forces Act 2006, the Court Martial’s sentencing powers were limited to the sentence available on summary trial in those circumstances.
3. Sections 132 and 133 limited service detention on summary trial to specified ranks. The power could be increased by the higher authority to a maximum of 90 days, but that increase did not extend the power to persons above the specified ranks. As a full corporal in the Army Reserve, the appellant could not have been sentenced to service detention on summary trial. The Court Martial therefore had no jurisdiction to impose 30 days’ service detention.
4. Where an accused is above the rank specified in section 132 and service detention is a significant possibility, the appropriate course is to consider referral to the Director of Service Prosecutions under section 123(2)(e) before any summary hearing. That course would remove the relevant jurisdictional limitation.
5. The sentence was not excessive on its merits, but that did not cure the jurisdictional defect. The detention element was quashed. The reduction to lance corporal was lawful and was retained. A severe reprimand was substituted, having regard to the seriousness of the conduct and the substantial mitigation.

The reference under section 34 of the Court Martial Appeals Act 1968 was treated as an appeal against sentence by the convicted person.

• Court Martial: convicted the appellant of battery and imposed 30 days’ service detention together with reduction to lance corporal.
• Court Martial Appeal Court: quashed the service detention, retained the reduction in rank and substituted a severe reprimand.