BSH, R. v

Factual and Procedural Background

On 21 March 2025, at the Bulford Military Court Centre, the Judge Advocate General dismissed the case brought by the Service Prosecuting Authority against a serving army sergeant, hereafter referred to as Defendant. The Defendant was charged with sexual activity with a child while in a position of trust, contrary to section 16(1) of the Sexual Offences Act 2003, and with contravention of standing orders under section 13(1) of the Armed Forces Act 2006. Both charges concerned allegations of sexual activity with a young trainee.

The dismissal was based on the Judge Advocate General’s conclusion that no reasonable Court Martial Board could infer that the alleged sexual activity had occurred, primarily relying on text messages exchanged between the Defendant and another sergeant.

The prosecution applied for leave to appeal the dismissal, which the Defendant opposed on grounds of jurisdiction and reasonableness of the ruling. Anonymisation was applied to the Defendant and other involved parties to prevent prejudice to related proceedings.

Legal Issues Presented

1. Whether this court has jurisdiction to hear an appeal against a Judge Advocate’s ruling dismissing charges at a preliminary stage of a Court Martial.
2. Whether the Judge Advocate General’s dismissal of the charges was reasonable based on the evidence presented.

Arguments of the Parties

Prosecution's Arguments

• The court has jurisdiction under Rule 50(1) of the Armed Forces Court Martial Rules 2009 to hear appeals against any order or ruling made in preliminary proceedings.
• The evidence, particularly the messaging between the Defendant and another sergeant, established a prima facie case and was sufficient for a reasonable jury to infer guilt.
• The Judge Advocate General erred in concluding that the messages could be dismissed as "laddish hyperbole" and failed to properly assess the sufficiency of the evidence.
• Statutory frameworks governing appeals in the Crown Court do not restrict appeals in the Court Martial context.
• Failure by the Defendant to comment on the messages during interview could justify an adverse inference under section 34(2)(b) of the Criminal Justice and Public Order Act 1994.

Defendant's Arguments

• There is no jurisdiction for this court to hear an appeal against a dismissal at a preliminary stage of a Court Martial.
• Even if jurisdiction exists, the Judge Advocate General’s ruling was reasonable and consistent with comparable Crown Court procedures.
• Rule 26 of the 2009 Rules requires the Court Martial to conduct proceedings comparable to the Crown Court, which does not allow prosecution appeals against dismissal prior to arraignment.
• There is an apparent conflict between Rule 50 and Crown Court expectations that should be resolved in the Defendant’s favour to prevent an appeal right.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Thompson and Hanson [2006] EWCA Crim 2849	No prosecution appeal against dismissal of charges prior to arraignment in Crown Court.	Distinguished as Crown Court statutory framework does not apply to Court Martial appeals.
H and J [2019] EWCA Crim 1863	Jurisdiction of Court Martial to dismiss charges prior to arraignment and requirement to apply comparable Crown Court processes.	Confirmed Court Martial jurisdiction to dismiss charges but did not address appeal rights under Rule 50.
Jabber [2006] EWCA Crim 2694	Test for sufficiency of circumstantial evidence for conviction by a reasonable jury.	Referenced by prosecution to support sufficiency of evidence in this case.
G and F [2012] EWCA Crim 1756	Principles on inferences from circumstantial evidence.	Referenced by prosecution though not cited to Judge Advocate General.
R v (Inland Revenue Commissioners) v Crown Court at Kingston [2001] EWHC Admin 581	Assessment of documentary evidence and inferences for sufficiency of evidence.	Passage cited by Judge Advocate General; court noted limited relevance to facts of this case.

Court's Reasoning and Analysis

The court first analyzed the jurisdictional question, concluding that Rule 50(1) of the Armed Forces Court Martial Rules 2009 clearly grants jurisdiction to hear appeals against any orders or rulings made in preliminary proceedings, including dismissals of charges prior to arraignment. The Defendant’s reliance on Crown Court procedures and associated case law was found misplaced because the statutory framework governing appeals in the Crown Court does not apply to the Court Martial.

Regarding the substantive merits, the court reviewed the Judge Advocate General’s detailed consideration of the messaging evidence. The Judge Advocate General had concluded that the messages could be dismissed as "laddish hyperbole" and that a properly directed Board could not be sure the Defendant had engaged in sexual activity with the trainee. The appellate court disagreed, finding that the messages contained direct admissions of sexual activity, which constituted sufficient evidence for a reasonable jury to convict.

The court emphasized that the lack of direct evidence from the trainee was neutral at this stage and did not diminish the sufficiency of the messaging evidence. Furthermore, the Defendant’s failure to comment on the messages during interview could have supported an adverse inference, but the Judge Advocate General did not consider this. The appellate court held that these factors collectively demonstrated that the dismissal was not reasonable.

Holding and Implications

The court granted the prosecution leave to appeal and QUASHED the Judge Advocate General’s dismissal of the charges against the Defendant.

The charges will proceed to trial before the Court Martial in the usual manner. The decision clarifies that the Court Martial has jurisdiction to hear appeals against preliminary rulings dismissing charges and that such dismissals are subject to appellate review. No new precedent was established beyond confirming the application of Rule 50(1) and the sufficiency test for evidence at the preliminary stage in Court Martial proceedings.