R v Michael William Ball

Whether a criminal summing-up was unfair must be assessed as a whole. Observations favouring one side do not render a trial unfair where the evidence and issues are fairly left to the tribunal of fact, with clear directions that factual matters are for it to decide. Severe psychological harm may justify a higher rape sentencing category even where later events or inadequate support also contributed to the victim’s condition. Sentencing courts need not artificially separate causative factors where the offence was the principal trigger and the offender materially contributed to the harm. However, a guideline starting point which already reflects severe psychological harm must not be substantially increased for the same harm, since that risks double counting. Significant personal mitigation may justify a sentence below the guideline starting point.

The applicant, a serving Army sergeant, was convicted by the Military Court Centre at Catterick on 20 October 2023 of sexual assault and rape arising from the same occasion. He received concurrent custodial sentences, including nine years for rape, and was dismissed from the Armed Forces.

Applications for leave to appeal against conviction and sentence were refused by a single judge and renewed before the Full Court Martial Appeal Court. The conviction challenge alleged that the judge advocate’s interventions and summing-up were cumulatively unbalanced. The sentence challenge alleged excessive weight to harm and aggravating factors, and insufficient weight to personal mitigation. The central issues were whether the convictions were unsafe and whether the sentence was manifestly excessive.

1. Conviction. Leave to appeal against conviction was refused. The Court agreed with the single judge that the summing-up, considered cumulatively and in context, did not render the trial unfair. Although some observations could tend to favour the prosecution, the judge advocate repeatedly made clear that the Board had to decide what mattered and where the truth lay. The evidence concerning sound travel provided a legitimate defence point, and the medical evidence was neutral.
2. Sentence. Leave to appeal was granted. The rape was properly categorised as category 2B under the Sentencing Council guideline, with a starting point of eight years and a range of seven to nine years. Severe psychological harm justified the categorisation, but the Court could not be expected to disentangle the effects of the rape from later stalking and inadequate Army support. The rape was the principal trigger, and the applicant was responsible for a major part of the resulting condition.
3. The starting point already assumed severe psychological harm. A substantial increase above it for the same harm risked double counting and gave excessive weight to aggravating factors.
4. The Board also undervalued mitigation, including the applicant’s long and distinguished Army service, the impact of imprisonment on his family, dismissal and loss of career, and substantial financial loss.
5. The nine-year sentence was manifestly excessive. It was quashed and seven and a half years’ imprisonment was substituted. The sexual-assault sentence remained concurrent.

• Court of Appeal (Criminal Division), Court Martial Appeal Court: The renewed application for leave to appeal against conviction was refused. Leave to appeal against sentence was granted; the nine-year sentence was quashed and seven and a half years’ imprisonment substituted.
• Single judge: Applications for leave to appeal against conviction and sentence were refused on the papers.
• Military Court Centre at Catterick: On 20 October 2023, the applicant was convicted of sexual assault and rape and sentenced to concurrent terms of imprisonment, including nine years for rape. He was dismissed from His Majesty’s Armed Forces.