R v BSH

An express Court Martial rule conferring an appeal against any order or ruling in preliminary proceedings is not displaced by a requirement to use a procedure comparable to that of the Crown Court. The different Crown Court statutory framework, including its voluntary-bill mechanism and acquittal-based prosecution appeal, does not control the Court Martial.

At a pre-arraignment sufficiency hearing, the question is whether the evidence could properly support conviction. Where the prosecution relies on an apparent admission, whether it is genuine or boastful is ordinarily for the trial tribunal. A reasonable tribunal need only be able to treat it as an admission. The absence of the complainant’s evidence does not itself make the case insufficient. Proper inferences may also be drawn from silence in interview where the statutory conditions are met.

On 21 March 2025, the Judge Advocate General at the Bulford Military Court Centre dismissed charges against a serving army sergeant before arraignment. The charges concerned alleged sexual activity with a young trainee, contrary to section 16(1) of the Sexual Offences Act 2003, and an alleged contravention of standing orders under section 13(1) of the Armed Forces Act 2006.

The prosecution applied for leave to appeal. The respondent disputed the Court Martial’s jurisdiction to hear the appeal and argued that the evidence was insufficient. The central issues were whether the Court Martial rules permitted an appeal against pre-arraignment dismissal and whether the messages relied on by the prosecution provided evidence capable of supporting a conviction.

The court granted leave to appeal, quashed the Judge Advocate General’s ruling and directed that the charges proceed in the Court Martial.

1. Appeal jurisdiction. Section 163(3) of the Armed Forces Act 2006 authorised rules providing appeals against preliminary orders or rulings. Rule 50(1) of the Armed Forces Court Martial Rules 2009 was unequivocal and conferred jurisdiction to hear an appeal against any order or ruling made in preliminary proceedings, including a ruling dismissing charges before arraignment. Rule 26 concerned the conduct of proceedings where the Rules made no provision. It did not override the clear appeal right in Rule 50. Rule 25, which dealt with termination arising from an issue concerning the composition of the Board, did not apply.
2. Crown Court comparison. H and J [2019] EWCA Crim 1863 established the Court Martial’s jurisdiction to entertain a pre-arraignment dismissal application and required a process comparable to the Crown Court’s procedure. It did not decide whether a dismissal ruling could be appealed. The absence of a prosecution appeal in the Crown Court, confirmed in Thompson and Hanson [2006] EWCA Crim 2849, resulted from the distinct statutory framework. The voluntary-bill provisions and the acquittal-based appeal mechanism under the Crime and Disorder Act 1998 and section 58 of the Criminal Justice Act 2003 did not apply to the Court Martial.
3. Sufficiency of evidence. The pre-arraignment test was the same as the no-case test: whether the evidence would be sufficient for the accused properly to be convicted. The judgment in R v (Inland Revenue Commissioners) v Crown Court at Kingston [2001] EWHC Admin 581 concerned documentary evidence and inferences from documents. It had very limited relevance to this case, which involved direct evidence in the form of an apparent admission.
4. Role of the trial tribunal. The messages were capable of being treated by a properly directed Board as an admission of sexual activity. Whether they amounted to genuine admissions or boorish exaggeration was a factual issue for the Board. The Judge Advocate General had not concluded that no reasonable Board could draw the necessary conclusion. The absence of evidence or a complaint from the trainee was neutral at the sufficiency stage and did not undermine the messages. The court also observed that, under section 34(2)(b) of the Criminal Justice and Public order Act 1994, the Judge Advocate General would have been entitled to consider an adverse inference from the respondent’s failure in interview to explain the apparent admissions.

• Court of Appeal (Criminal Division) — Granted leave to appeal, quashed the ruling and ordered that the charges proceed in the Court Martial.
• Bulford Military Court Centre — On 21 March 2025, the Judge Advocate General dismissed the charges before arraignment on the basis that no reasonable Court Martial Board could properly convict on the evidence.