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Court Martial success for Chambers duo

21st May 2020

Criminal barristers Nicholas Lewin (1989) and John-Paul Fitzgibbon (2018) discuss a legal first for the Court Martial system when their application to dismiss a rape charge was allowed by His Honour Judge Advocate Large, sitting at the Bulford Military Court Centre.

The Case

The case involved an allegation of rape made by one service person against another, stemming back to early 2019 where both the defendant and complainant were friends on a career course. Following an evening socialising the defendant and complainant had sex; a number of days later the complainant made an allegation of rape against the defendant.  The Crown’s case was simply that the complainant was too drunk to have had the capacity to consent to intercourse and that she in fact had no recollection of having sex, apparently learning of it a few days later by colleagues.

Of difficulty to the Crown was the evidence of an impartial and sober third person who the complainant had met in their toilet block between 10-15 minutes after intercourse had taken place. In this meeting the complainant explained that she had sex with the defendant and expressed regret at having done so.  She was described as being significantly less drunk than earlier in the evening (only 3-4 out of 10 on the scale) and crucially was able to function on her own.  Added to this was other evidence from a witness taken some days after the event where the complainant explained in some detail certain aspects of the intercourse.  The defence argued that simply put, both of these issues were fatal to the prosecution’s assertion that she was too drunk to have the capacity to consent and that she had no recollection of events.

With this in mind and noting the Judge Advocate’s concerns over significant weaknesses in the prosecution case, the defence made an application to dismiss the charge.

Applications to dismiss in the Court Martial

Whilst an application to dismiss is relatively commonplace in cases sent for trial under S.51 or 51A of the Crime and Disorder Act 1998, there was no such corresponding provision in relation to courts martial.  That changed in October 2019 where, in his judgment in the case of R v H & J [2019] EWCA Crim 1863 Simon LJ ruled at para 38 “…There is no Service reason for depriving a Service defendant of his right to apply to dismiss, on the basis that the evidence is insufficient”.  It was further held that rule 26 of the Armed Forces (Court Martial) Rules 2009 [SI 2009/2041] constituted a saving provision for such an application.

Post the judgment in H&J the Court Martial has the same power to hear a dismissal application, and in the same circumstances, as the Crown Court (notably under para 2 Schedule 3 CDA 98)


The Application

On Wednesday 6 May 2020 Nicholas and John-Paul appeared before HHJA Large via videolink for the application to be heard.  The prosecution asserted that a board (equivalent of a jury) properly directed could properly convict on the evidence and that the evidence of the complainant’s memory of events post intercourse must have been down to the ‘physical act of intercourse temporarily bringing her to’.

Nicholas outlined the high hurdle that the Crown had to satisfy and that the evidence as it stood was insufficient to lead a board to properly draw an inference that the complainant lacked capacity or otherwise did not consent and that in the circumstances it would be wrong for the defendant to be at risk of a conviction that would be unsafe. 

HHJA Large reserved his ruling which was delivered in writing on 11 May 2020.  Allowing the application the learned Judge Advocate ruled that there was not sufficient evidence in the case upon which a Board could properly draw the inference that either the complainant did not consent or that she lacked capacity to consent at the time of intercourse.

This ruling serves as the first time in the history of court martial proceedings that a charge has been dismissed.  A brave but perfectly correct decision by the learned Judge Advocate and one that is, it seems, to be the subject of an application for leave to appeal despite the inability of the Crown in equivalent civilian proceedings to appeal such a determination.

Nicholas said “It should be remembered that the seriousness of the charge is essentially irrelevant in a dismissal application, the test applied in a theft charge is the same to be applied on a charge of rape or even murder – it is all about the evidence.”

If you wish to discuss this, or any other case with Nicholas, please contact his clerk Colin Palmer on 01752 221 551 or colin@kbgchambers.co.uk  

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Court Martial success for Chambers duo