Khan v Royal Air Force Summary Appeal Court, Court of Appeal - Administrative Court, October 07, 2004, [2004] EWHC 2230 (Admin)

Extract

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Khan v Royal Air Force Summary Appeal Court, Court of Appeal - Administrative Court, October 07, 2004, [2004] EWHC 2230 (Admin)

Case No: CO/81/2004

Neutral Citation Number: [2004] EWHC 2230 (Admin)

IN THE HIGH COURT OF JUSTICE

DIVISIONAL COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Thursday, 7 October 2004

Before :

THE RT HONOURABLE LORD JUSTICE RIX

THE HONOURABLE MR JUSTICE FORBES

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Between :

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(Transcript of the Handed Down Judgment of

Smith Bernal Wordwave Limited, 190 Fleet Street

London EC4A 2AG

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Mr Nicholas Blake QC &, James Mason, Andrew Mitchinson & Lucinda Dannatt (instructed by Rose Williams & Partners) for the Appellant

Mr Philip Havers QC & Wing Commander Christopher Wood (instructed by the RAF Prosecuting Authority) for the Respondent

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Judgment

Lord Justice Rix:

1. This is an appeal from the decision of the RAF summary appeal court by way of case stated to the Divisional Court. It concerns the conviction of the appellant, Leading Aircraftsman Mohisin Khan, a reservist recalled for service in January 2003 in the run-up to the invasion of Iraq, for the offence of being absent without leave. His defence and/or explanation, was that he was a Muslim conscientious objector. He was sentenced to seven days loss of privileges. He appealed to the RAF summary appeal court, which ruled that his conscientious objection, although accepted as genuine, was no defence. He now appeals to this court on the ground that his rights of belief, conscience and religion under article 9 of the European Convention of Human Rights and Fundamental Freedoms (the ``Convention'') have been infringed, and that his conviction and punishment were wrongful. Soon after his conviction, however, he was discharged from the service on administrative grounds.

Article 9 of the Convention

2. Article 9 provides:

``1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.''

The questions stated for the opinion of the court

3. The case stated has set two questions for this court:

``(1) Whether, in proceedings under the service discipline Acts (the Army Act 1955, the Air Force Act 1955 or the Naval Discipline Act 1957) for the offence of desertion or absence without leave, a genuine conscientious objection, general or particular, to the continued performance of military service can amount to a defence in law under domestic legal principles or the European Convention on Human Rights.

(2) Whether, in the particular circumstances of Leading Aircraftsman Khan's case, the Royal Air Force authorities acted in breach of either domestic legal principles or the European Convention on Human Rights by omitting to bring to his attention at the time he was recalled for service the fact that if he had a genuine conscientious objection to renewed service he had a right to claim exemption to recall as a conscientious objector.''

The facts found by the RAF summary appeal court

4. The facts of the case are most conveniently set out in the summary appeal court's own words:

``1. The appellant, who is a Muslim, voluntarily enlisted in the Royal Air Force on 8 December 1999. He joined the Medical Assistant trade. Members of the Medical branch have non-combatant status. His engagement was for 9 years service with 6 years reserve.

2. On 15 January 2001 the appellant applied for Premature Voluntary Release. In support of that application he indicated his unhappiness with the Medical Assistant trade and his wish to re-muster or to re-enlist in an Information technology related trade.

3. On 27 March 2001 the appellant applied to re-muster in the trade of Eng tech Av. That application was refused both on the grounds of insuffcient service in his existing trade and because he did not have the requisite academic qualifications.

4. On 24 April 2001 the appellant was discharged from the Royal Air Force in accordance with his application for Premature Voluntary Release. He thereby became a reservist and for six years liable to recall as such under the provisions of the Reserve Forces Act 1996.

5. In June 2001 the appellant enquired about re-enlisting in the Royal Air Force.

6. As a result of an order issued by the Secretary of State on 7 January 2003 under s.54 of the Reserve Forces Act 1996, the appellant was recalled for service. The papers he was sent included a ...

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