Law Report: Reasons for court-martial's decision were necessary

Where, following a serviceman's plea of guilty before a court- martial to an offence of wounding, there had been a dispute of fact before sentence was passed which involved conflicting expert medical evidence, the court-martial should have given reasons for its decision not to accept the evidence put forward for the defence.

Regina v Ministry of Defence, ex parte Murray; Queen's Bench Divisional Court (Lord Bingham, Lord Chief Justice, and Mr Justice Hooper) 15 December 1997

The Divisional Court quashed the decision of a District Court-Martial sentencing Colin James Murray to six months' imprisonment, to be reduced to the ranks, and to be dismissed from Her Majesty's service.

The applicant, then a sergeant in 1 Royal School of Military Engineering Regiment, was a man of good character with an exemplary service record. He had pleaded guilty to a civil offence contrary to section 70 of the Army Act 1955, namely wounding contrary to section 20 of the Offences Against the Person Act 1861. Following his plea there was a dispute of fact which had to be decided before sentencing. The offence had been committed when the applicant had bitten the nose of another non-commissioned officer in a night-club in Nairobi.

After his plea the applicant had sought to show on the balance of probabilities that he had committed the offence wholly or partly because of the effect on him of the anti-malarial drug mefloquine. Expert medical witnesses were called by both sides, and after two days of evidence the court resolved the question of fact against the applicant, but gave no reasons for its decision.

Clare Montgomery QC and Richard Wormald (Redfern and Stigant, Chatham) for the applicant; James Eadie (Treasury Solicitor) for the respondent.

Mr Justice Hooper said that the sentence of dismissal from the service, obligatory if a sentence of imprisonment rather than of detention was passed, prevented the applicant from completing 22 years' service with the considerable financial benefits which would have resulted from that. The loss to him had been put at over pounds 100,000.

The sentence had subsequently been confirmed by the confirming officer and two petitions for review had been rejected. No reasons had ever been given, notwithstanding that detailed submissions had been made on the applicant's behalf. Under the legislation then in force there was no right to seek leave to appeal against sentence to the Courts-Martial Appeal Court. The only remedy available to the applicant was judicial review.

It was accepted on behalf of the applicant that there was no general duty to give reasons. It was not disputed that the absence of a legislative provision requiring reasons was not a firm indicator that reasons need not be given. It was submitted that, in the light of the authorities, the interests of justice and in particular the right of an accused person to have a fair trial required the court to give reasons.

That was because the character of the decision making body was judicial, it made final determinations of rights and obligations, and it was staffed by educated and informed persons assisted by a legally qualified Judge Advocate who retired with the court when the sentence was being considered; because the determination of the court might result in loss of liberty and means of livelihood; because the public had a right to know the basis on which a sentence was imposed; because, unless reasons were provided, the value of a right to have an effective review of the sentence was effectively reduced; and because there were no countervailing considerations.

The applicant had relied on three cases concerned with a failure or refusal to give reasons: R v Civil Service Appeal Board, ex p Cunningham [1994] 4 All ER 310; R v Secretary of State for the Home Department, ex p Doody [1994] 1 AC 531 and R v Higher Education Funding Council, ex p Institute of Dental Surgery [1994] 1 WLR 241.

Applying the principles to be found in those authorities, fairness required that in the present case reasons should have been given both as to why the court had reached the conclusion that there was no causal connection between the applicant's actions and the mefloquine which he had taken, and why it had decided that a sentence of imprisonment was required rather than some lesser sentence which would not have had the same dire consequences for the applicant.

It should not be thought that failure to give reasons would normally result in the quashing of a post-conviction determination of fact, a sentence or the review of a sentence. Judicial review was unlikely to succeed, for example, where the reasons were easily discernible albeit not expressed, or where no other conclusion than the one reached was realistically possible.

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