R v Thomas Dewhirst

The composition of a Court-Martial Board is a judicial decision. Under rule 33 of the Armed Forces Court-Martial Rules 2009, the judge may select an exclusively military, exclusively civilian or mixed Board, after considering all relevant factors. Appellate intervention is ordinarily justified only for a failure to consider a relevant factor, reliance on an irrelevant factor, or a decision outside the permissible range. A military setting, differences in rank and evidence of banter do not create an automatic need for military members. Civilian members can fairly assess credibility, reliability and whether conduct went beyond innocent horseplay. Where no material unfair prejudice is shown, the convictions are not unsafe.

After a trial in the Military Court at Catterick, the applicant was convicted of seven indecent assaults committed between 1985 and 1993, while he and the complainants were serving soldiers. The offences were charged under section 70 of the Army Act 1955 and section 15 of the Sexual Offences Act 1956. He received an aggregate sentence of nine years and six months’ imprisonment.

At a pre-trial hearing, Assistant Judge Advocate General Smith refused the defence application for an exclusively military Board. The defence alternatively sought a mixed Board, arguing that a civilian Board could not understand the service setting, rank relationships and alleged group dynamics. The central issue was whether the judge had erred in exercising the discretion as to Board composition and whether the civilian Board made the convictions unsafe.

Disposition. The application for leave to appeal failed and was refused. The court found no material error in the decision as to the Board’s composition and no unfair prejudice making the convictions unsafe.

1. Applicable discretion. The effect of rule 33 of the Armed Forces Court-Martial Rules 2009 and R v Bhoyroo [2023] EWCA Crim 1625 was that the judge had a judicial discretion to select an exclusively military, exclusively civilian or mixed Board. The judge was required to consider all relevant factors.
2. Appellate review. The ordinary principles governing review of discretionary decisions applied. Intervention would ordinarily be justified only if the judge failed to consider a relevant factor, took an irrelevant factor into account, or reached a decision outside the range properly open to him. The earlier indication that the Board would be civilian had not been challenged, which was relevant but not conclusive. Judge Smith had carefully considered the defence submissions. The long period since the applicant left the Service, the fact that all witnesses had also left the Service, and the absence of a co-accused were weighty considerations favouring a civilian Board.
3. Service context and fairness. The court accepted that the events occurred among serving soldiers, in military accommodation and in circumstances involving differences in rank. Those features did not establish a clear need for military Board members. The issues were whether the applicant had abused his authority and deliberately exploited an atmosphere of banter and horseplay to commit sexual assaults. Civilian members could fairly assess whether the complainants’ evidence was truthful, accurate and reliable. Personal Service experience was not required. No unfair prejudice had been shown.
4. Conclusion. Judge Smith might have reached a different decision, but the decision he made was plainly within the range properly open to him. There was therefore no ground for treating the convictions as unsafe.

• Court of Appeal (Criminal Division): refused the application for leave to appeal, holding that the decision to use an exclusively civilian Board was within the judge’s discretion and that the convictions were not unsafe.
• Military Court at Catterick: following a trial before Assistant Judge Advocate General Legard and a Board, convicted the applicant of seven offences and sentenced him to nine years and six months’ imprisonment.