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England and Wales Court of Appeal (Criminal Division) Decisions


You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Brannigan, R v [1998] EWCA Crim 255 (26th January, 1998)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/1998/255.html
Cite as: [1998] EWCA Crim 255

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SCOTT BRANNIGAN, R v. [1998] EWCA Crim 255 (26th January, 1998)

No: 97/3006/S2

IN THE COURTS-MARTIAL
APPEAL COURT

Royal Courts of Justice
The Strand
London WC2

Monday 26th January 1998


B E F O R E :


LORD JUSTICE BUXTON


MR JUSTICE RIX

and

MR JUSTICE MAURICE KAY

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R E G I N A


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SCOTT BRANNIGAN

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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Tel No: 0171 831 3183 Fax No: 0171 831 8838
(Official Shorthand Writers to the Court)
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MR M HUMPHREYS appeared on behalf of the Appellant
MR M ZEIDMAN appeared on behalf of the Crown

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JUDGMENT
( As Approved by the Court )
Crown Copyright
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LORD JUSTICE BUXTON: This is an appeal by Corporal Brannigan of the Royal Irish Regiment against a decision of a District Court-Martial held at Long Kesh in Northern Ireland on 5th December 1996. Corporal Brannigan was found guilty on two charges of conduct to the prejudice of good order and military discipline, contrary to section 69 of the Army Act. He was sentenced to be reduced to the ranks and dismissed from Her Majesty's Service. He was represented at the Court-Martial by Mr Humphreys of counsel who has also represented him before us today.
Two complaints are made about the conviction. They are to some extent inter-linked, as Mr Humphreys has urged upon us this morning, but we will of necessity initially deal with them separately. The first is a complaint that the prosecution evidence was so inconsistent and unsatisfactory that the fact that the court convicted upon it demonstrates that it cannot have properly considered the evidence as a whole, and that therefore the conviction is unsafe because there must be a lurking doubt about it. The second complaint is that the Assistant Judge Advocate, when directing the court as to the law, misdirected them as to the burden and standard of proof. That, said Mr Humphreys, was a ground for appeal even in itself, and it took on the greater weight because of the unsatisfactory nature of the evidence and the unsatisfactory nature of the conclusion that the court reached on that evidence.
In order to understand these complaints we must briefly set out the background and the evidence that was given, seeking to highlight, if we can, those parts of the evidence to which the appellant particularly draws attention and the complaints that he makes about it.
The outline facts were that the appellant had, in October 1995, assumed responsibility for training recruits of his Regiment at St. Patrick's Barracks in Ballymena, Northern Ireland. He was commander of the 2nd section, Somme Platoon. One of the matters of discipline that understandably was particularly stressed was that there should be no negligent discharge of a soldier's weapon. If that occurred it was a serious matter so far as that soldier was concerned, and it should be the responsibility of those in charge of him to refer the matter up the chain of command. A Private Morgan alleged that he had had such a negligent discharge and that the appellant had told him to tell no one about it, but to buy a crate of Guinness. Morgan said in his evidence that he replied that he had already bought such a crate for a Corporal Mitchell, commander of the 1st Section and the appellant said therefore that he could buy a crate of Coca Cola because Corporal Young, who was Commander of the third section, did not drink. The next week Morgan bought such a crate of Coca Cola for £4.99 and gave it to Corporal Young who according to Morgan's evidence appeared shocked but accepted it. It was that incident that formed the basis of the first charge upon which Corporal Brannigan was convicted.
Secondly, a Private O'Hagan alleged that the appellant told him that he had dirty mess tins and offered him a choice of buying a crate of beer or going on what was described as a staff parade. O'Hagan chose to buy the beer, because he thought it was a fair punishment, and he bought such a crate of Guinness and gave it to the appellant. That was the subject matter of the second charge. A Private Rennie was given a similar option to buy a bottle of Scotch in similar circumstances but did not in fact do so. There was no charge in respect of that and the Judge Advocate told the Court-Martial to ignore this matter.
In the grounds of appeal a number of discrepancies between the evidence of the three men that we have summarised are set out. In the case of Morgan it is pointed out that he alleged that the incident that he complained of occurred in the section room immediately after the passing out parade and claimed that it was witnessed by all other members of his section including O'Hagan and Rennie. At the same time he alleged that the defendant demanded other beverages from O'Hagan and Rennie. He said that was the only occasion upon which such demands were made. O'Hagan said that the order made to him was made in the presence of the whole of the section and said, however, with regard to the meeting in the section room of which Morgan gave evidence, that on that occasion no demands were made. He said in his case that that was the only occasion on which demands were made. Rennie said in his evidence that he could remember the meeting in the section room, but no demands were made then.
The appellant therefore says in his grounds that the three accounts given by the main prosecution witnesses were completely different from each other. The complaint is that the court failed to take into account that both Morgan and O'Hagan claimed that Rennie witnessed the demands yet he had no such knowledge. Different locations were given by those other witnesses. Morgan claimed that O'Hagan and Rennie witnessed the incident with him in the section room; they said this did not happen; the dates were not the same. Summarising those complaints Mr Humphreys says in particular the witnesses were not tentative but were certain and between these allegedly certain witnesses not only were there discrepancies but there was also no corroboration of the individual accounts. There were other matters given in evidence which it is said were not properly taken into account. So far as Morgan was concerned it was alleged that he had a grudge against the defendant because Morgan had been, as the expression is, "back squadded", that is to say deferred in his progress through the training course.
A large amount of evidence was called on behalf of the defendant. A Sergeant Agnew gave evidence that he had dealt with the negligent discharge on the part of Private Rennie, that Rennie said had in fact led to his encounter with the defendant. Corporal Young denied that he had ever received Coca Cola or anything else from Morgan or anybody else. Other private soldiers gave evidence, not only favourable in terms of character to the defendant, but also saying that they had not been aware of any demands improperly made by him, despite the fact that one of those demands at least had allegedly been made in front of a parade of the whole section including themselves. It was alleged that Morgan had interfered with and coached prosecution witnesses and that matter was investigated by the Special Investigation Branch, as we understand it, and evidence was given about that. The defendant himself gave evidence strongly denying the charges, and impressive evidence of character was called on his behalf, including a very strong testimonial from his commanding officer.
We set that out in some detail because it is obviously a matter about which, understandably, the appellant is deeply concerned.
The fact of the matter, however, is this. The Court-Martial heard all witnesses to whom we have made reference. They had the benefit of hearing them cross-examined by Mr Humphreys. They also had the benefit, no doubt, of hearing Mr Humphreys' submissions. It was for them to judge what weight they gave to the various witnesses' evidence, what account they took of the discrepancies between the various parts of the evidence, and how they balanced up the evidence on both sides of the case. This court that has not seen those witnesses cannot substitute its judgement for that of the Court-Martial, more particularly because, in our judgment, although we have set out the criticisms in some detail, they seem to us to fall far short of being a case where we say that there is any doubt whether it was possible for the Court-Martial to take the view that it did. Further, the Court-Martial had the benefit of an extremely thorough and careful summing-up of the evidence by the Judge Advocate, even though they themselves had heard it shortly beforehand. The Judge Advocate was very well seized of the fact that the Court-Martial had to face and deal with the problems to which we have drawn attention. The Judge Advocate said this at page 283E:
"But - and this point has already been made by Mr Humphreys - there is also, you may think, considerable inconsistency in the accounts given by Morgan, O'Hagan and Rennie. So, you are going to have to look at that, are you not, because how does that affect their credibility, and to what extent does it affect their credibility? That is for you to decide, because you weigh and assess the facts of the case."
Then he went directly on, in the course of a summing-up of which no complaint is made apart from the matter we are shortly to come to, to remind them of the excellent character of the defendant, immediately after he had reminded them of the complaints about the prosecution witnesses.
Having set the scene in that way the Judge Advocate then conscientiously took the members of the Court-Martial through the evidence, again in terms of which no complaint has been made. In those circumstances therefore the case falls far short in our judgment of one in respect of which we could intervene on that ground alone. Mr Humphreys, however, says it does not stop there because his second ground of complaint is that the Judge Advocate in fact misdirected the Court-Martial in respect of the approach that they should take to the evidence. We will come back shortly to how he introduced the matter, but having set out the detailed matters of law and the approach that a Court-Martial must adopt he said this at page 285H:
"Now, there has been a welter of evidence about the locations and times which surround the allegations, but surely, at the end of the day, it comes down to this, does it not: who do you believe? So, accordingly, I shall summarise the evidence by referring to those parts which I think may help you in deciding that key issue in the case. But remember, of course, that you try the case on the whole of the evidence which you have heard."
Mr Humphreys fairly said that he did not principally complain about that passage although it uses the phrase to which he objects later: "Who do you believe?" It is worth pointing out that in the paragraph immediately before those observations, as the Judge Advocate started to direct himself to the evidence, he said this:
"So, before I come on to the evidence, let me make the general comment that you should keep your eye on the ball in this case; the stark issue is, quite simply, this: are Morgan, O'Hagan and Rennie telling you the truth; are you sure about that; in which case your findings would be guilty."
So there the Judge Advocate was telling them that they must be sure. He then turns to the evidence and goes through it in detail, in a way in which complaint is not made, and having finished his summary, we do not know how long it took but it was a conscientious review which occupies some 12 pages of transcript, he said this, and this is the sentence to which Mr Humphreys takes objection, on page 298F:
"So, what it comes down to, members of the court, quite simply is, who do you believe in this case?"
Mr Humphreys says that was a serious misdirection and in the circumstances of this case, in view of the nature of the evidence in particular, a fatal direction because it left it open to the Court-Martial to decide the matter simply on the civil standard.
That complaint has, however, to be put in the context of the directions that the Judge Advocate had given earlier in his summing-up, really not a very long time before he got to the end of it. We have already drawn attention to one passage in which he said that the Court-Martial must be sure of what was said by Morgan and the other complainants. That was in accord with the whole tenor of his earlier directions. We draw attention to three passages. At page 282C he said:
"Reference has been made to inferences, so let me put it another way: you can only draw an inference against the accused's interests if you are satisfied so that you are sure that it is a proper inference to draw. It follows that if there are two possible inferences, one in the accused's favour and one against him, you could not draw the inference against him because you could not be satisfied so that you are sure that that is the proper inference to be drawn."
Then at the bottom of page 282 shortly after that he said this:
"How does the prosecution succeed in proving the guilt of the accused? The answer to that is quite simple: by making you sure of it; nothing less than that will do. So if, after considering all the evidence you are sure that the accused is guilty, you must return a verdict of guilty. If you are not sure, then your verdict must be not guilty."
Then when dealing with another matter at page 284D he said:
"Now, one further word about the witnesses and possible conflicts, because obviously it is of signal importance in this case. If there is a conflict in the evidence of witnesses, or in the evidence of the same witness for that matter, and you are left in reasonable doubt about it, then obviously the conflict must be decided in favour of the defence, because it is at all times for the prosecution to prove their case, and remember that it is not for the accused to prove or explain away anything in a criminal trial; it is for the prosecution to prove that he has committed the conduct as alleged."
Those directions demonstrate two things. The first is that the Judge Advocate gave a classically correct direction on the burden and standard of proof. Secondly, however, they also demonstrate that he did not simply give that direction as it were as a formal statement and leave the matter there. In at least three other places where he has had to deal with particular questions, for instance with regard to inferences to be drawn or about conflicts between witnesses, the judge advocate reverts to the question of burden, standard and the need for the Court to be sure before it convicts. In our judgement the Court-Martial can have been under no doubt whatsoever in the light of those directions as to the obligations that rested upon it when it performed its task of assessing the evidence. In the two places where the Judge Advocate uses the expression "who do you believe?", in our judgement he was saying no more than reminding the Court-Martial that the issue was, as it plainly was, one of credibility - starkly one of credibility between witnesses on the two sides. But the fact that he used that shorthand expression in those two points of the summing-up, particularly at the end, could not possibly have offset in the Court-Martial's mind the very clear, helpful, forceful directions that he had given earlier on the correct burden and standard.
We have considered this matter carefully because we appreciate that not only is it important but also taking these two grounds together it is important to be satisfied that the conviction reached by the Court-Martial was indeed safe. Despite the submissions that have been made to us by Mr Humphreys and the detailed submissions received from him in writing we are entirely satisfied that these convictions were safe. This appeal is therefore dismissed for the reasons that we have indicated.


© 1998 Crown Copyright


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URL: http://www.bailii.org/ew/cases/EWCA/Crim/1998/255.html