R v Ballinger (Paul)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Scott Baker |
| Judgment Date | 27 April 2005 |
| Neutral Citation | [2005] EWCA Crim 1060 |
| Docket Number | Case No: 2004/4330/C5 |
| Court | Court of Appeal (Criminal Division) |
| Date | 27 April 2005 |
[2005] EWCA Crim 1060
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM A COURT MARTIAL AT HMS DRAKE
Captain Fraser Judge Advocate
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Scott Baker
Mr Justice Poole and
Sir Michael Wright
Case No: 2004/4330/C5
Nicolas Lewin for the Appellant
Philip Havers Q.C. and Timothy Otty (instructed by the Naval Prosecuting Authority) for the Respondent
These are the reasons for refusing an extension of time for leave to appeal against conviction, a decision which we announced on 15 March 2005.
Background
On 2 April 2003 at a Court Martial at H.M.S Drake at which Captain Fraser was Judge Advocate the applicant Paul Michael Ballinger, then a Petty Officer Physical Trainer: Royal Navy, was convicted of one offence of indecent assault. He was sentenced to 4 months detention, dismissed from the Service, disrated to Able Seaman, deprived of 3 Good Conduct Badges and ordered to suffer the consequential penalties involved.
On 7 April 2003 the applicant presented a petition against sentence to the Reviewing Authority and on 20 May 2003 he was notified that it had been refused. He sought leave to appeal against sentence but this was refused by the single judge on 4 June 2003 and the application has not been renewed.
The Reviewing Authority, although not asked to do so, did, in accordance with its ordinary practice, review the conviction but concluded that there was no reason to quash it.
The present application, for an extension of time and, if granted, for leave to appeal against conviction was launched on 28 July 2004. It was referred by the single judge to the Full Court.
The circumstances leading to the application for an extension of time arise out of two decisions, the first by the European Court of Human Rights in Grieves Application No 57067/00 16 December 2003 and the second by this court presided over by the Vice-President in Dundon [2004] EWCA Crim 621 which was handed down on 18 March 2004.
The facts
The facts can be very shortly stated because their detail is irrelevant to the outcome of this application. Save in one respect (the Article 6 point) no complaint whatsoever is made about the safety of the conviction. No issue arises about the summing up, admissibility of evidence and so forth.
The applicant was a physical training instructor serving on HMS Raleigh. The allegation was that he indecently assaulted a 16 year old Wren by pushing her against a wall, trying to kiss her, holding her bottom and rubbing his erect penis against her vagina. He denied that any contact at all took place.
The victim's evidence was that she was undergoing basic training on HMS Raleigh. As she was unable to participate in gym activities she was required to undertake cleaning duties. She went with the applicant to a cupboard where he provided her with a dustbin liner and a brush and told her to clean the squash courts. As she did not know where they were he took her there. When they reached the toilets he grabbed hold of her telling her she had two options, either to clean or have sex. He put his hands on her bottom and pushed himself onto her so that she was against the wall. She told him that if she had given him the wrong impression she was sorry but that was not what she wanted. She asked him to get off but he started trying to kiss her and rubbed himself against her. She could feel his erect penis against her in the area of her vagina. After the incident he told her no one needed to know about it, "it's just your and my business."
She made a complaint soon afterwards to a Petty Officer Writer who noted that she was visibly upset and shaking. Her complaint showed consistency in her account. The applicant gave evidence denying that any contact had taken place. He said that at the cleaning store the victim had made a sexist remark about a clock. [There was a clock in the cleaning store on the wall. It featured two pigs and when it chimed it looked as if the pigs were having sex]. He ticked her off saying: "be careful, some people may complain." Although he directed her to the squash courts he did not go with her to them or to the toilets. The Court Martial plainly disbelieved his evidence.
The issue
The fundamental issue is whether the applicant should be given a very substantial extension of time (about 1 year and 3 months) to apply for leave to appeal against conviction. Mr Lewin, who has appeared throughout for him, submits that the law is now clear where it was not before. The trial was unfair and in breach of Article 6 of the European Convention on Human Rights ("ECHR"); his conviction is unsafe. When in the Spring of 2003 Mr Lewin advised on appeal against sentence he said he anticipated advising positively for an appeal against conviction but wished first to review the authorities. He said one of the bases would be that the Naval Discipline Act, under which the Court was convened, was incompatible with the ECHR. Having reviewed the authorities he concluded however that they established that a naval Court Martial was Convention compatible. That was the view widely held before the decisions in Grieves and Dundon.
On 8 July 2004 Mr Lewin wrote a further advice saying that on the basis of the decision in Dundon (given 3 1/2 months before) his previous view that there were no grounds for an appeal against conviction was wrong. This advice led to the application for an extension of time on 28 July 2004 which was received in the Court of Appeal office on 4 August 2004.
What emerged from Grieves, as explained by the Vice-President in Dundon, was that because the pivotal role of a Naval Judge Advocate was performed by a serving naval officer rather than a civilian the most significant guarantee of independence in other courts martial was missing. Also, the Judge Advocate was appointed by the Chief Naval Judge Advocate, another serving naval officer. These features were such as to render trials unfair and in breach of Article 6 rights.
The Vice-President went on to say at paragraph 14:
"In the light of the breaches we have identified of the appellant's Article 6 right to trial by an independent and impartial tribunal, we turn to the question of whether the appellant's conviction should be regarded as safe. In our judgment it cannot be so regarded."
He went on to note that whilst in many cases breach of an Article 6 right will result in the quashing of a conviction this is not necessarily so. In every case the outcome depends on the kind of breach and the nature and quality of the evidence in the case. But he concluded at para 16:
"However, we are unable to envisage any circumstance in which, an Article 6 breach having arisen from want of independence and impartiality in the tribunal, it would be possible to conclude that the conviction is safe. Despite Mr Havers' submissions to the contrary, we are of the view that, although no criticism is or could be made of this Judge Advocate's conduct, want of independence and...
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