Canning v The Crown: Reinforcing Military Discipline Over Domestic Rest Regulations Under the Armed Forces Act 2006

Introduction

Canning v The Crown ([2022] EWCA Crim 469) is a pivotal case adjudicated by the England and Wales Court of Appeal (Criminal Division) on April 8, 2022. The appellant, Lance Corporal Sean Canning of the 10th Signal Regiment, 251 Squadron, was convicted of disobedience to a lawful command under section 12(1)(a) of the Armed Forces Act 2006. The crux of the case revolved around the interplay between military discipline and civilian domestic law, specifically the Working Time Regulations 1998 (WTR). The appellant contended that complying with a military order would have infringed upon his statutory right to rest under the WTR, thereby rendering the command unlawful.

This commentary delves into the intricacies of the judgment, exploring the foundational legal principles, the court's reasoning, the precedents cited, and the broader implications for military personnel and the jurisdictional boundaries between military and civilian law.

Summary of the Judgment

Lance Corporal Sean Canning was court-martialed for refusing an order to deploy to Exercise BRUNO WARRIOR while on guard duty. He argued that obeying the order would violate his entitlement to an 11-hour rest period under the WTR. The Assistant Judge Advocate General (AJAG) ruled against him, affirming that the military command was lawful despite the alleged conflict with the WTR. The Court of Appeal upheld the AJAG's decision, dismissing the appeal on the grounds that military discipline and the chain of command take precedence over civilian regulations in such contexts.

Analysis

Precedents Cited

The judgment referenced several pivotal cases and legal instruments that shaped the court's reasoning. Notably:

• R v Lyons [2012] 1 Cr App R 20: Established that there is no defense of reasonable belief regarding the lawfulness of a command under section 12 of the Armed Forces Act 2006.
• R (Gentle) v Prime Minister and others [2008] UKHL 20; Reinforced the principle that military orders must not be unlawful, emphasizing that only orders evidently contrary to law can be disobeyed without repercussions.
• B.K. v Republika Slovenija (C-742/19): A CJEU case that, while not binding post-Brexit, was considered for its insights into the applicability of working time regulations to military personnel.

These precedents collectively underscore a consistent judicial stance that upholds military discipline while recognizing the boundaries of domestic law as it pertains to service personnel.

Legal Reasoning

The court's deliberation hinged on interpreting "lawful command" under section 12 of the Armed Forces Act 2006. The AJAG concluded that as long as an order does not entail the commission of a crime or is not evidently unlawful, it must be obeyed to maintain military discipline and operational effectiveness.

The defense's argument posited that the command to deploy conflicted with the WTR, thereby making it unlawful. However, the court rejected this, asserting that the WTR's provisions do not supersede military orders. The AJAG emphasized that military commands are designed to ensure readiness and discipline, which are paramount for the functioning of the armed forces.

Additionally, the court clarified that even if there was an incompatibility between the appellant's rights under the WTR and the military order, it does not render the order unlawful. Instead, service personnel are expected to follow the chain of command and seek redress through designated military channels if they believe their statutory rights are being infringed.

Impact

This judgment reaffirms the supremacy of military discipline over certain domestic laws within the context of service duties. It delineates the boundaries within which service personnel must operate, emphasizing that their obligation to follow orders remains steadfast unless an order is blatantly unlawful.

For future cases, this sets a precedent that statutory rights, such as those under the WTR, do not automatically disrupt military commands. Service members must navigate their rights within the framework of military protocols and utilize service-specific grievance mechanisms rather than civil legal defenses to address perceived infringements.

Furthermore, it underscores the necessity for clear communication and coordination within military chains of command to prevent conflicts between service duties and statutory rights.

Complex Concepts Simplified

Several legal concepts within this judgment merit simplification for enhanced understanding:

Lawful Command

A "lawful command" in the military context refers to orders that are within the authority of the issuing officer, serve a proper military purpose, are executable, and do not contravene UK domestic, international, or local laws. Importantly, even if a command interferes with a service member's statutory rights, it remains lawful provided it does not involve illegal activities.

Working Time Regulations 1998 (WTR)

The WTR establishes minimum standards for working hours, including an 11-hour mandatory rest period within each 24-hour cycle. While these regulations apply to armed forces personnel, the military's operational needs can override these provisions under specific exemptions, ensuring that service readiness is maintained.

Section 12 of the Armed Forces Act 2006

This section criminalizes the disobedience of lawful commands by service members. To establish an offense under this section, it must be proven that the command was lawful and that the individual intentionally or recklessly disobeyed it.

Exemption Clause (Regulation 18(2)(a) of the WTR)

This provision allows for exemptions to the WTR when specific characteristics of military service inevitably conflict with its provisions. Such exemptions are not blanket exclusions but apply only in circumstances where the nature of military duties necessitates deviations from standard working time regulations.

Conclusion

The Canning v The Crown case serves as a definitive affirmation of military hierarchy and the primacy of lawful commands within the armed forces. By dismissing the appellant's contention that domestic rest regulations could render a military order unlawful, the court maintained the essential structure of military discipline. This judgment clarifies that while service members have statutory rights, these do not supersede military orders unless the orders are unequivocally unlawful or criminal.

The decision carries significant implications for the operational dynamics of the armed forces, ensuring that the chain of command remains unchallenged in the face of statutory regulations. It also delineates the appropriate avenues for service members to address grievances, emphasizing internal military processes over civil legal defenses in such disputes.

In the broader legal landscape, this case underscores the intricate balance between individual rights and institutional discipline, particularly within structured organizations like the military. It reiterates the judiciary's role in upholding established frameworks that sustain organizational efficacy and order.