Court Martials, Lay Membership and the Validity of Their Constitution: Gunn v Service Prosecuting Authority [2019] EWCA Crim 1470

AuthorNeil Parpworth
Published date01 April 2020
Date01 April 2020
DOIhttp://doi.org/10.1177/0022018320912619
Subject MatterCase Notes
Case Note
Court Martials, Lay
Membership and the Validity
of Their Constitution
Gunn v Service Prosecuting Authority [2019] EWCA Crim 1470
Keywords
Court Martial, ordinary criminal offence, lay members, different Service, whether validly
constituted
The appellant, a member of the Royal Air Force (RAF), was convicted by a Court Martial of having
committed a criminal offence, that is, a battery, contrary to s 42 of the Armed Forces Act 2006 and s 39
of the Criminal Justice Act 1988. His punishment was a reduction in rank from Sergeant to Corporal. The
appellant had initially been offered a Court Martial with an RAF Board. However, this had been declined
on the basis that the date was not convenient for his counsel. The Court Martial therefore subsequently
proceeded before an Army Board. The appellant was granted leave to appeal against his conviction on a
single ground, namely whether the Board of lay members had jurisdiction to hear the case. In granting
leave to appeal, Hallett LJ had been ‘troubled by the interplay between the Queen’s Regulations for the
RAF as to the construction of the Board and the provisions of the Armed Forces Act’. Although the Court
of Appeal appreciated that the Regulations ‘do not have the force of primary legislation’, it was ‘not
clear’ to it what force they did have.
The principal issue for the Court of Appeal to consider was, therefore, whether a Court Martial trying
a member of the RAF was properly constituted if the Board of lay members comprised only of Army
personnel. In addressing this issue, it was necessary for the Court to determine the legal status of the
Queen’s Regulations and to examine the interrelationship between their relevant provisions and those of
the 2006 Act.
Held, dismissing the appeal, that the Queen’s Regulations were a species of delegated or subordinate
legislation which, in the event of a conflict with the provisions of the Armed Forces Act 2006, had to
give way. The constitution of the Court Martial had not disclosed a breach of the initial sentence of reg
1140(4) of the Queen’s Regulations. This was because although it was normal practice for a Service
defendant to be tried by lay members drawn from his own Service, the use of the word ordinarily in the
Regulations signified that it was not a mandatory or invariable rule. Where no specialist Service
knowledge was required to determine the issues before a Court Martial, the normal practice may be
departed from. An Army Board had been as well qualified to try the issue in the present case—whether a
battery had been committed—as an RAF Board.
Commentary
Contrary to what Professor AV Dicey suggested in his observations on the rule of law, it is not the case
that ‘no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach
of the law established in the ordinary legal manner before the ordinary courts of the land’: see
The Journal of Criminal Law
2020, Vol. 84(2) 168–171
ªThe Author(s) 2020
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DOI: 10.1177/0022018320912619
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