Ashworth, R v

Factual and Procedural Background

The Appellant pleaded guilty before a Court Martial to an offence under section 42 of the Armed Forces Act 2006, specifically using racially aggravated threatening, abusive or insulting words or behaviour causing fear or provocation of violence, contrary to section 31(1)(a) of the Crime and Disorder Act 1998. The offence occurred on the night of 20th/21st July 2018 while the Appellant, then a Sergeant in the 1st Rifles regiment attached to the British Army Training Unit in Kenya, was drinking in a bar out of bounds to Army personnel. After being asked to leave by an Army patrol including a black Lance Corporal, the Appellant became aggressive, used racially abusive language, and threatened violence. The Appellant was sentenced on 12th March 2019 to 90 days' detention and reduction to the ranks. His application for leave to appeal against the sentence was referred to the Full Court by the Registrar.

Legal Issues Presented

1. Whether the custodial sentence of 90 days' detention should have been suspended.
2. Whether insufficient consideration was given to the likelihood and timescale of the Appellant regaining rank and the financial consequences of reduction to the ranks before imposing that sanction.

Arguments of the Parties

Appellant's Arguments

• The custodial sentence should have been suspended, relying on factors such as the passage of time between offence and proceedings, the Appellant's good conduct during that period, his prompt apology to the victim, the absence of actual violence, and operational importance of retaining rank.
• Insufficient consideration was given to the likelihood and timescale of regaining rank and the financial impact of reduction to the ranks. It was submitted that it would realistically take about six years to regain former rank, resulting in an estimated financial loss of at least £37,000.
• The overall sentence was manifestly excessive and would have been less severe if proper consideration had been given to suspension and financial consequences.

Respondent's Arguments

• The Court Martial, as a specialist tribunal, had sufficient information including written financial details to assess the consequences of reduction to the ranks.
• The financial information provided was adequate for the Court Martial members to form a view on the full consequences using their experience.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court recognised the Appellant's long and good service and the serious consequences of the sentence on him and his family. However, it emphasized respect for the specialist nature of the Court Martial and its expertise in assessing the military context and implications of sentencing.

Regarding the first ground, the court found no basis to argue that immediate detention was wrong in principle. The factors relied upon for suspension carried no significant weight, and there was no arguable delay in proceedings to justify suspension. The offence was considered so serious that immediate custody was necessary.

Regarding the second ground, the court accepted that while detailed submissions about financial consequences and regaining rank were not made at trial, the Court Martial had sufficient general information and clearly found the Appellant unfit to hold his rank. The court concluded that further inquiry into financial or promotional details would not have altered the necessity of the reduction in rank.

The court noted the gravity of the incident, involving public racial humiliation of a fellow soldier and damage to the British Army's reputation in the host country. It acknowledged the Appellant's remorse but found no ground to challenge the sentence as wrong in principle or manifestly excessive.

Holding and Implications

The court REFUSED the application for leave to appeal against the sentence.

The direct effect is that the original sentence of 90 days' detention and reduction to the ranks stands. No new precedent was established. The decision affirms the Court Martial's authority to impose immediate custody and reduction in rank in serious racially aggravated offences within the military context, emphasizing the importance of maintaining discipline and the Army's reputation.