The Court of Appeal has ruled that a soldier dealt with first by a subordinate officer can appeal to a summary court martial after the commanding officer rehears the charge and decides the appeal.
In a judgment delivered on 17 June 2016, Mahon J. answered four questions referred by a Military Judge in a consultative case stated. The questions concerned Private Graham Sheehan’s right to further appeal after a summary investigation under the Defence Acts.
Sheehan was charged on 18 February 2014 with being absent without leave, contrary to section 137(1) of the Defence Act. A subordinate officer found the charge proven on 20 March and imposed a fine equivalent to one day’s pay, with an automatic forfeiture of 17 days’ pay.
Sheehan appealed the finding and punishment to his commanding officer. On 4 April, the commanding officer reheard the charge, found it proven and imposed a similar fine, again with the automatic forfeiture. Sheehan then submitted a notice of appeal to a summary court martial.
The Military Judge questioned whether the summary court martial had jurisdiction, reasoning that the law did not provide a further appeal after the commanding officer decided an appeal from a subordinate officer. The Director of Military Prosecutions argued that the commanding officer’s rehearing and decision could be appealed. A barrister appointed to act as legitimus contradictor argued that the legislation provided no such further appeal in these circumstances.
The Court of Appeal answered “Yes” to whether Sheehan had a further right of appeal to a summary court martial, “No” to whether he could be treated as outside the relevant statutory provisions, and “No” to whether he had no right of appeal under section 178E(2). It also answered “Yes” to whether the summary court martial had jurisdiction to hear his notice of appeal.
Mahon J. relied in part on section 179F, which refers to a “further appeal” after an appeal under section 179D. The court said those references would be meaningless if no further appeal were available. It also considered the need for judicial oversight and the possibility that a commanding officer could impose a more severe punishment after rehearing a charge.
The judgment resolved the legal questions referred to the Court of Appeal. It did not decide whether the charge against Sheehan was proven or determine the outcome of his appeal before a summary court martial.