Dewhirst, R. v

Factual and Procedural Background

On 18 March 2024, following a trial in the Court-Martial before Assistant Judge Advocate General Legard and a Board, the Appellant was convicted of seven charges of indecent assault on male victims, contrary to section 15 of the Sexual Offences Act 1956, under section 70 of the Army Act 1955. The Appellant was sentenced to nine years and six months' imprisonment. The offences occurred between 1985 and 1993 when the Appellant served as a Corporal in the military, stationed in Germany and Northern Ireland. The victims, identified as C1 to C5, were junior soldiers living in shared military accommodation with the Appellant.

The complainants described a culture of "banter" and "horseplay" in their living environment, which included various forms of physical interaction. The prosecution alleged that the Appellant committed sexual assaults under the guise of this behaviour. Specific incidents included unwanted exposure, masturbation, and attempted sexual penetration, with some charges resulting in convictions and others resulting in no verdict or acquittal.

The sole ground of appeal concerns the composition of the Court-Martial Board. The Appellant contended that the trial before an exclusively civilian Board was prejudicial and that the Board should have been exclusively military or mixed civilian and military, given the military context of the offences. The procedural history shows no early challenge to the Board's composition until after a key decision in R v Bhoyroo [2023] EWCA Crim 1625 clarified that the Board's composition is a judicial decision. The defence subsequently applied for a military Board, which was refused by Assistant Judge Advocate General Smith, who ruled that a civilian Board was appropriate given the Appellant had left service over 30 years prior and other relevant factors.

Legal Issues Presented

1. Whether the refusal to appoint an exclusively military or a mixed military and civilian Court-Martial Board constituted an error of law.
2. Whether the composition of an exclusively civilian Board resulted in unfair prejudice to the Appellant, rendering the convictions unsafe.

Arguments of the Parties

Appellant's Arguments

• The military context of the offences and the living arrangements required a Board with military members to properly understand the social nuances and "horseplay" culture.
• The civilian Board lacked the "Service lens" necessary to fairly assess the evidence, especially given the rank dynamics and alleged ganging-up by fellow soldiers.
• The Appellant suffered prejudice because the civilian Board could not fully appreciate the particular circumstances of soldiers living in shared accommodation on deployment.
• The convictions are unsafe due to the Board's composition.

Respondent's Arguments

• The decision to have a civilian Board was within the discretion of Assistant Judge Advocate General Smith and no material error was made.
• A civilian Board is capable of identifying predatory behaviour disguised as horseplay.
• The context relied upon by the Appellant was the same context considered by the Board in charges resulting in acquittals or no verdict, showing no difficulty in their understanding.
• No reason has been shown why the convictions should be regarded as unsafe.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Bhoyroo [2023] EWCA Crim 1625	Establishes that the composition of the Court-Martial Board is a judicial decision for a Judge Advocate General, not an administrative function.	The court relied on this precedent to confirm that Assistant Judge Advocate General Smith had discretion to decide the Board's composition and that his decision was a judicial one.

Court's Reasoning and Analysis

The court analysed the discretion exercised by Assistant Judge Advocate General Smith in determining the Board's composition. It noted that the Appellant had left the Service over 30 years prior, and all witnesses had similarly left the Service long ago. The judge considered the presumption that a civilian Board is appropriate when more than five years have elapsed since service cessation, a presumption supported by Practice Memorandum No 11.

The court acknowledged the Appellant's submission that a military Board would better understand the military context, including rank dynamics and the culture of "horseplay." However, it rejected the analogy drawn by the Appellant's counsel that only military members could fairly assess these issues. The court found that the context described was not unique to military life and could be understood by civilians, as evidenced by similar social environments such as schools or sports clubs.

The court emphasized that the central factual issues concerned whether the complainants' evidence was truthful and reliable, matters that a civilian Board was fully capable of adjudicating. It found no evidence that the civilian Board suffered any unfair prejudice or was unable to properly assess the case. The court concluded that the decision to have an exclusively civilian Board was within the range of reasonable judicial decisions and that no legal error or unfairness arose from this choice.

Holding and Implications

The court REFUSED the Appellant's application for leave to appeal against convictions.

The direct effect of this decision is the affirmation of the convictions and sentence imposed by the Court-Martial. The ruling confirms that, in cases where a significant period has elapsed since service cessation, an exclusively civilian Court-Martial Board may be appropriate even in cases involving military context and personnel. No new precedent was set beyond confirming the proper exercise of judicial discretion under Rule 33 and the principles established in R v Bhoyroo.