R v Martin Anthony Toney

In assessing apparent bias in a court martial, the fact that a Board is composed in accordance with the applicable Rules, often of officers equal or superior in rank to the accused, does not itself create a real possibility of bias. Nor do managerial responsibilities or awareness of workplace policies against sexual harassment justify an inference that members will decide otherwise than on the evidence. The court applies the fair-minded and informed observer test, considering safeguards including pre-trial enquiries, written guidance and judicial directions against prior knowledge and internet research. Speculation that a member might have discovered prejudicial information is insufficient without a basis for finding that the directions were breached. A separate application and the single-judge filter are required for leave to appeal sentence; a belated direct application cannot bypass that process.

The applicant, a senior Army officer, was convicted by a Court Martial at Catterick of sexual assault arising from an alleged kiss and touching during an Army ski training programme in Norway in 2012. The issue at trial was factual. The Court Martial imposed an 18-month community order with 120 hours of unpaid work and ordered the applicant’s dismissal from the Service.

A single judge refused leave to appeal against conviction. On renewal to the Full Court, the applicant argued that the Board’s composition created an appearance of bias in light of Army policies concerning sexual harassment. He also argued that members might have known about him or researched him and discovered a report of an earlier acquittal. The central issue was whether a fair-minded and informed observer would conclude that there was a real possibility or real danger of bias.

Disposition. The Full Court refused the renewed application for leave to appeal against conviction. It found no arguable ground on which the conviction could be regarded as unsafe.

1. Board composition. The court held that the Board was properly composed under the Armed Forces (Court Martial) Rules 2009. Rule 29 required at least five lay members. Rules 34(1), 34(3) and 34(7) showed that at least one member must be qualified to be President, that qualification included being of superior rank to the accused, and that where two or more members were so qualified the most senior would be President. Rule 34(7) therefore contemplated more than one superior officer on the Board, and the Rules did not prohibit a Board composed entirely of members equal or superior in rank to the accused.
2. Apparent bias. Applying the test in Porter v Magill [2001] UKHL 67, the question was whether a fair-minded and informed observer would conclude that there was a real possibility or real danger of bias. Knowledge that the Board had been constituted according to the Rules and usual practice would not lead such an observer to conclude that its members would ignore, or be unable to follow, the judge’s directions. The fact that members might have managerial responsibilities, or that the Army placed current emphasis on preventing sexual harassment, created no actual or perceived risk that the verdict would be based on policy rather than evidence.
3. Prior knowledge and research. The prospective members had been questioned about knowledge of the applicant, had signed written guidance prohibiting independent research, and had received clear judicial directions to decide the case only on the evidence. The court found no basis for suggesting that any member had disregarded those safeguards. The speculative possibility that a member might have found an internet report did not establish bias or render the conviction unsafe.
4. Sentence appeal procedure. A leave application concerning sentence was distinct from the application concerning conviction and had to proceed separately, including consideration by a single judge. The Full Court would not permit a belated direct application to bypass that process. This did not prevent an application for an extension of time and leave to appeal sentence being made through the proper procedure.

• Court of Appeal (Criminal Division) — In [2023] EWCA Crim 201, the renewed application for leave to appeal against conviction was refused. The court declined to entertain a direct application concerning sentence without the required separate procedure.
• Single judge — Refused leave to appeal against conviction on the papers.
• Court Martial — Convicted the applicant at Catterick on 30 November 2021 and imposed an 18-month community order with 120 hours of unpaid work and dismissal from the Service.