SEAN KEVIN CANNING v THE CROWN

A military command is not rendered unlawful merely because obedience would interfere with a service person’s personal entitlement under the Working Time Regulations 1998. For purposes of section 12 of the Armed Forces Act 2006, lawfulness concerns both the command’s purpose and the act required of the recipient. A subordinate must obey unless the act ordered is plainly and obviously contrary to law. The fact that ordinary civil law extends beyond criminal law does not mean that every breach of domestic law or interference with a private right invalidates a command. Regulation 10(1) confers a rest entitlement without imposing a correlative obligation on the employer. Its denial therefore did not invalidate the command. The court left regulation 18(2)(a) undecided.

The appellant, a serving soldier, pleaded guilty to disobedience to a lawful command under section 12(1)(a) of the Armed Forces Act 2006. After completing guard duty, he was ordered to board transport for a military exercise in Scotland. He refused, relying on a claimed daily-rest entitlement under regulation 10(1) of the Working Time Regulations 1998.

The Assistant Judge Advocate General dismissed a no-case submission, ruling that breach of the Regulations could not make an otherwise lawful military command unlawful. The appeal concerned the meaning of lawful command and whether the armed-forces exception in regulation 18(2)(a) required determination.

The appeal was dismissed.

1. Lawful command. The order was given for a lawful military purpose and did not require the appellant to perform an unlawful task. Lawfulness concerns not only the giver’s authority and the command’s military purpose, but also what the recipient is directed to do. A service person is entitled to refuse only where it is entirely plain and obvious that the act ordered is unlawful. The court relied on the general approach reflected in R v Lyons [2012] 1 Cr. App. R. 20 at [36] and recognised in R (Gentle) v Prime Minister and others [2008] UKHL 20; [2008] 1 A.C. 1356.
2. Daily rest. Even assuming that regulation 10(1) applied and that regulation 18(2)(a) did not, the provision gave the appellant a personal entitlement rather than imposing a correlative obligation on the employer. Parliament had provided a complaints procedure rather than treating denial of the entitlement as unlawful in the broader sense. Preventing the appellant from exercising that entitlement did not make the command unlawful for the purposes of section 12.
3. Unresolved exemption. The Assistant Judge Advocate General had proceeded on the mistaken basis that the prosecution conceded that the regulation 18(2)(a) exception did not apply. Material evidence on that issue had therefore not been called or tested. Since the appeal was disposed of on the meaning of lawful command, the court declined to determine the exception’s applicability.
4. The Assistant Judge Advocate General went too far in stating that any military order, however dangerous, was lawful unless it involved a crime. That conclusion was unnecessary. A command lacking a proper service purpose may be unlawful; an order to jump from a plane without a parachute would ordinarily provide an example.

• Court Martial Appeal Court: On appeal with leave of the single judge, the court dismissed the appeal on 8 April 2022. [2022] EWCA Crim 469
• Military Court Centre at Bulford: On 17 May 2021, following re-arraignment and a no-case ruling, the appellant pleaded guilty and was convicted. He was sentenced to 90 days’ service detention, suspended for nine months, and reduction in rank. The detailed ruling was delivered on 19 May 2021.