Confirming the Prosecution’s Right of Appeal from Pre-Arraignment Dismissals in the Court Martial
A Comprehensive Commentary on R v BSH ([2025] EWCA Crim 706)

1. Introduction

In R v BSH the Court of Appeal (Criminal Division) was asked to decide whether the Service Prosecuting Authority (“SPA”) could appeal a Judge Advocate General’s decision to dismiss charges before arraignment in a Court Martial. The respondent, an Army sergeant anonymised as BSH, faced allegations of:

• Sexual activity with a child while in a position of trust (s.16(1) Sexual Offences Act 2003).
• Contravening standing orders (s.13(1) Armed Forces Act 2006).

The Judge Advocate General (“JAG”) terminated the case on the basis that no reasonable Board could be sure sexual activity occurred. Relying mainly on incriminating WhatsApp messages between BSH and a fellow sergeant (“Z”), the SPA sought leave to appeal. The defence raised two jurisdictional objections:

1. Rule 50 of the Armed Forces (Court Martial) Rules 2009 (“AFR 2009”) could not confer a right of appeal where none exists in the Crown Court.
2. Even if there were jurisdiction, the dismissal was properly reasoned.

Lord Justice William Davis, giving judgment, dismissed both objections, reinstated the charges and directed that the matter return to the Court Martial. The decision lays down an authoritative precedent: the prosecution does enjoy a statutory right of appeal under Rule 50(1) against dismissal rulings made in preliminary proceedings of the Court Martial.

2. Summary of the Judgment

The Court of Appeal held that:

• Jurisdiction exists. Rule 50(1) AFR 2009 is “unequivocal”. It authorises appeals against any order or ruling made during preliminary proceedings, including a pre-arraignment dismissal.
• No conflict with Crown Court practice. While the Crown Court provides no appellate route after dismissal (Thompson & Hanson), that framework hinges on separate statutory provisions (Crime and Disorder Act 1998, Criminal Justice Act 2003) which have no analogue in service law.
• The JAG applied the wrong test. The messaging on 12–18 November 2022 arguably contained direct admissions of sexual activity, not mere “laddish hyperbole”. A reasonable Board could properly convict. Therefore the statutory sufficiency test was met.
• Leave to appeal was granted; the dismissal quashed; the case is remitted for trial, with directions for case-management on joinder with the co-accused sergeant.

3. Analysis

3.1 Precedents and Statutory Framework Discussed

• H and J [2019] EWCA Crim 1863 – Confirmed that under Rule 26 AFR 2009 a Judge Advocate must create a procedure comparable to Schedule 3 Crime and Disorder Act 1998, thereby recognising a power to dismiss charges pre-arraignment. The present Court emphasised that H and J said nothing about appellate rights.
• Thompson and Hanson [2006] EWCA Crim 2849 – Authority that Crown Court dismissals are not appealable by the prosecution. Used by the defence to argue analogy, but distinguished on the statutory basis.
• Schedule 3 Crime and Disorder Act 1998 & s.58 Criminal Justice Act 2003 – Compared to show how Parliament deliberately restricted appeals in civilian courts but supplied an alternative (voluntary bill of indictment). Those mechanisms do not operate in service jurisdiction.
• Jabber [2006] EWCA Crim 2694; G and F [2012] EWCA Crim 1756 – Re-stated the test for sufficiency where guilt is to be inferred from circumstantial evidence. Cited by the SPA to underscore that only one reasonable jury need be able to convict.
• Inland Revenue Commissioners v Crown Court at Kingston [2001] EWHC Admin 581 – Passage dealing with assessment of documentary evidence. Relied on by the JAG but held of “very limited relevance” on the facts.

3.2 Legal Reasoning of the Court

1. Textual clarity of Rule 50. The Court began with the plain wording – “any order or ruling”. No carve-out exists for dismissal decisions.
2. Separate statutory universes. The Armed Forces Act 2006 grants power to create rules, and AFR 2009 expressly give an appellate route. Civilian procedural statutes cannot oust that grant by analogy.
3. No inconsistency with Rule 26. Rule 26 concerns how a Judge Advocate should model procedures on the Crown Court. It does not govern appeals. Therefore coexistence with Rule 50 is harmonious.
4. Sufficiency of evidence. Admissions, even if contained in private messages, are direct evidence. The JAG erred by treating them as circumstantial bravado. A properly directed Board could draw an inference of guilt.
5. Section 34 CJPOA 1994 inference. BSH’s silence in interview, when confronted with the messages, could support an adverse inference, further reinforcing sufficiency.

3.3 Likely Impact of the Decision

a) Service Justice System
The ruling definitively confirms that the SPA may challenge erroneous pre-arraignment dismissals, preventing premature termination of serious cases. It bolsters prosecutorial confidence and discourages tactical “front-loading” of dismissal applications by defendants.

b) Evidential Thresholds
The Court’s robust view of direct admissions in digital messaging strengthens the evidential value of chat logs in sexual-offence prosecutions, particularly where the complainant is reluctant or absent.

c) Harmonisation with Civilian Courts
While acknowledging different statutory landscapes, the judgment emphasises functional parity: the test for dismissal mirrors the Crown Court, but the appellate pathway differs. Future legislative reform may consider whether civilian practice should likewise permit such appeals in limited circumstances.

d) Military Discipline & Zero Tolerance Policy
By highlighting admissions made in the context of the new Zero Tolerance Policy (effective 19 Nov 2022), the Court signals zero tolerance will be judicially enforced. Supervisory personnel are on notice that digital records can easily resurface in Court Martial proceedings.

4. Complex Concepts Simplified

• Arraignment – The formal act of putting a defendant to plea. “Pre-arraignment” means before the defendant enters a plea.
• Dismissal of Charges (Service Context) – A Judge Advocate may end proceedings if the evidence could not sustain a conviction. It is not an acquittal; the charge could, in theory, return.
• Rule 26 vs. Rule 50 (AFR 2009)
  • Rule 26: Tells the Judge Advocate to replicate Crown Court procedures where possible.
  • Rule 50: Gives the Court of Appeal jurisdiction to hear appeals from preliminary rulings.
• Voluntary Bill of Indictment – In civilian courts, the prosecution can ask a High Court judge for a fresh indictment after dismissal. Since this mechanism does not apply to the Court Martial, Rule 50 fills the gap.
• Section 34(2)(b) CJPOA 1994 – Allows a tribunal to draw adverse inferences when a suspect, during interview, fails to mention facts they later rely on in court.
• “Laddish hyperbole” – A colloquial expression meaning boastful but untrue statements made to impress peers.

5. Conclusion

R v BSH establishes a clear and important precedent: the prosecution can appeal a Judge Advocate’s dismissal of charges during preliminary Court Martial proceedings. The Court of Appeal reached this conclusion by applying the plain language of Rule 50 AFR 2009 and by distinguishing civilian statutory regimes. It also reaffirmed that:

• Digital communications containing apparent admissions constitute powerful direct evidence.
• A Judge Advocate should not prematurely characterise such material as boastful or inconsequential; that assessment is for the Board at trial.
• The absence of victim testimony does not automatically render a sexual-offence case untriable when other cogent evidence exists.

Practitioners in the service justice arena must now assume that dismissal decisions are fully reviewable, and must prepare both applications and oppositions with appellate scrutiny in mind. More broadly, the judgment underscores the evolving interface between military and civilian procedure, and the courts’ readiness to safeguard the integrity of sexual-offence prosecutions within the armed forces.