Law Report: Sentence of dismissal from service was too severe

Law Report: 25 novemBER 1997: A sentence by a court-martial of dismissal from Her Majesty's Service for offences which in a civilian court would have merited a small fine, and which did not threaten the trust or discipline within the offender's unit, coul
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The Courts Martial-Appeal Court allowed Colin Gilbert Love's appeal against a sentence that he be dismissed from Her Majesty's Service and be reduced to the ranks, imposed at a District Court-Martial at Shorncliffe following his pleas of guilty to two charges of sending indecent or obscene material through the post contrary to section 11(2) of the Post Office Act 1952.

The appellant was a staff sergeant in the Royal Military Police. He had sent the obscene material through the post to a civilian named Copley. He had never met Copley and had given him no indication that he was in the armed forces. Letters, photographs and cartoons of an explicit sexual nature were exchanged between them. The offences had only come to light by accident, when Copley's house was searched in relation to other offences.

Gordon Bebb (Warner Goodman & Streat, Portsmouth) for the appellant.

Lord Justice Simon Brown said that the present was the first appeal against a court- martial sentence, the right of appeal having only recently been conferred by section 17 of the Armed Forces Act 1996.

It was appropriate to make certain observations about the new right of appeal, and how the court should approach it. The sentences which could be imposed by a court-martial were, in many instances, strikingly different from those available to Crown Courts. If, as in the present case, an NCO was dismissed, he was also automatically reduced to the ranks and his pension rights would be affected.

The appellant had served 18 years of a 22-year engagement. At the age of 40 he would have been entitled to an immediate pension. Upon dismissal, however, that pension right became frozen until he was 60, when he would be entitled to 18/22 of the full rate. A rough calculation of his loss of pension rights for the period between his 40th and 60th birthdays was in the region of pounds 168,000.

Court-martial sentences were concerned to achieve two things. First, to punish service personnel for the criminality of their conduct; and second, to deal with them on a disciplinary basis. In that they were unique.

In the present class of appeal, therefore, it seemed that the court was exercising a somewhat hybrid jurisdiction, and that, whilst free and clearly intended by Parliament to correct any injustice which it perceived in a court-martial sentence, it must neverthe-less be mindful that those imposing and confirming such sentences were, generally speaking, better placed that the court to assess the seriousness of offending in the context of service life, and to decide upon the particular penalty required to maintain discipline and efficiency in the armed forces.

With all those considerations in mind, it seemed to the court that the present offence was one of limited seriousness which, if dealt with by the civilian courts, would almost certainly have been disposed of by a modest fine. Realistically, there was nothing about the case which made it more serious because the appellant was a serving soldier. The present offences, unlike drug offences, barrack-room pilfering or sexual misconduct with or affecting other service personnel, did not threaten the trust and discipline within the appellant's unit. The sentence of dismissal, with the inevitable further consequences which that brought about, could not therefore be justified. The sentences would be quashed, and substituted with fines of pounds 100 on each of the two counts.

One other matter was mentioned by way of footnote. Through the investigation of the offences it had come to light that the appellant was a homosexual. Pursuant to the well-known policy that homosexuals were not permitted to serve in the armed forces, once such orientation had been established administrative discharge generally followed. That involved the same loss of pension rights as dismissal from the services.

- Kate O'Hanlon, Barrister