Courts-Martial Appeal Court
Published November 16, 2007
Regina v Brown (Kirsty)
Before Lord Phillips of Worth Matravers, Lord Chief Justice, Mr Justice Davis and Mr Justice Simon
Judgment October 23, 2007

There was no principle by which a serviceman absent without leave ceased to be under an obligation to obey a lawful order.

The Courts-Martial Appeal Court so held in allowing a prosecution appeal against the decision of Assistant Judge Advocate Burn at a pretrial hearing in a court-martial on July 19, 2007 at the Military Court Centre, Portsmouth, that it was oppressive to charge the defendant, Logistician (Catering Services) Second Class (Logs) Kirsty Brown, with being absent without leave and with disobeying a lawful command to return to duty from that absence.

Mr John Pheasant for the prosecution; the defendant did not appear and was not represented.

THE LORD CHIEF JUSTICE, giving the judgment of the court, said that the defendant faced two charges of breach of the Naval Discipline Act 1957: absence without leave, contrary to section 17(1)(a), and disobedience to a lawful command, contrary to section 12, in respect of an order to return to duty from that absence.

At the pretrial hearing, the judge advocate had suggested that the joinder of the two charges was open to objection and, after discussion, he gave a ruling that reflected that view and quashed the second charge.

The prosecution submitted that the judge advocate was wrong to rule: (i) if someone was absent from his place of duty he could not be guilty of disobeying a lawful command; (ii) that two charges could not be based on the same facts; (iii) that wilful disobedience was a factor that aggravated the offence of being absent without leave rather than a separate offence; and (iv) that it was oppressive to combine the two charges.

Their Lordships upheld the prosecution’s submissions. They knew of no principle under which a serviceman or woman who was absent without leave was no longer under an obligation to obey a lawful order.

A fresh court-martial should be convened and the defendant tried on both charges.

Solicitors:Naval Prosecuting Authority, Portsmouth.

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