Tuesday, 13 December 2011

A couple of interesting cases: (1) Armed Forces - disobedience; (2) Child Abduction

Royal Courts of Justice, London

Case 1: Court Martial Appeal

The Court of Appeal (Criminal Division) sometimes has the further function of becoming the Court Martial Appeals Court.  In this capacity, the court (Toulson LJ, Openshaw and Hickinbottom JJ) has dismissed an appeal by Leading Medical Assistant Lyons who, on 5 July 2011 at a Court Martial at Portsmouth, was found guilty of intentionally disobeying a lawful command contrary to section 12(1)(a) of the Armed Forces Act 2006. He was sentenced to seven months' military detention, reduction from the rank of Leading Medical Assistant to Able Seaman and dismissal from the service.  See Leading Medical Assistant Lyons v R [2011] EWCA Crim 2808.


The offence under section 12 requires proof
of mens rea to the extent that it must be shown that the defendant either intentionally disobeyed a lawful command or was reckless as to whether he disobeyed it.  The appeal court rejected an attempt to import into section 12 a further requirement that the defendant believed the command to be unlawful - see para. 36 of the judgment.  However, the court noted - "We are not here concerned with the hypothetical case of a serviceman ordered to do something which he reasonable believed would be a war crime. That would give rise to different moral and legal questions from any which arise in the present case. All that the appellant was being required to do was to undertake weapons training for the protection of himself and those under his care if his claim for conscientious objection was rejected and he was deployed to Afghanistan"

The judgment also shows the appeal court showing considerable deference to the court martial itself in relation to the effect on morale and operational effectiveness of disobedience to lawful orders.  At para 39 the remarks of the Judge Advocate are quoted and at para 40 the court stated - "In particular, the Board was in a far better position than this court to assess what it described as the corrosive effect on morale and the potential to affect operational effectiveness of the appellant's conduct."

For more on this case see the post by Rosalind English on UK Human Rights Blog - "A human right to object to war."  Also - The Guardian - "The limits of conscientious objection"

Case 2: Child Abduction Act 1984 sentencing

The Court of Appeal (Criminal Division) - Lord Judge LCJ, McFarlane LJ and Royce J - has considered sentencing for offences under the Child Abduction Act 1984 - see R v Kayani and R v Solliman [2011] EWCA Crim 2871.   The Lord Chief Justice pointed out that the common law offence of kidnapping is available and carries a maximum sentence of life imprisonment.  However, this offence is subject to difficulties in proving the ingredients of the offence and it is under consideration by the Law Commission - (see para 14 of the judgment).   The maximum sentence under the Child Abduction Act 1984 is 7 years imprisonment.  The wide discrepancy between the maximum for kidnapping and under the Act was described as "illogical" and the court recommended that the maximum under the Act be increased.

Lord Judge noted - "Child abduction, like every other offence, can take many forms. It may include the abduction of a child for a few days, or even a week or two, followed by the child's return, effectively undamaged, and, more important, although the parent from whom the separation was effected has suffered distress and anxiety in the meantime, with the loving relationship between parent and child quite unharmed. At the other extreme there are offences of forced marriage which ultimately culminate in what in reality is rape, or cases like the present, where the child is deliberately taken abroad and separated from one of its parents for many years, and the ordinary loving relationship which each should enjoy with the other is irremediably severed."

and, later, at paras. 54

"The abduction of children from a loving parent is an offence of unspeakable cruelty to the loving parent and to the child or children, whatever they may later think of the parent from whom they have been estranged as a result of the abduction. It is a cruel offence even if the criminal responsible for it is the other parent. Any reference in mitigation to the right to family life, whether at common law, or in accordance with Article 8 of the Convention, is misconceived.  (Emphasis added].  In effect the submission involves praying in aid and seeking to rely on the very principle which the defendant has deliberately violated, depriving the other parent of the joy of his or her children and depriving the children from contact with a loving parent with whom they no longer wish to communicate. There is a distinct consideration to which full weight must be given. It has long been recognised that the plight of children, particularly very young children, and the impact on them if the person best able to care for them (and in particular if that person is the only person able to do so) is a major feature for consideration in any sentencing decision.

The court upheld sentences on Kayani of 5 years (2 counts - sentences concurrent) and 3 years on Solliman (3 counts - sentences concurrent).

The government has opportunity to increase the maximum sentence under the 1984 Act given that the Legal Aid, Sentencing and Punishment of Offenders Bill is currently before Parliament.

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