R v Michael William Ball

The provisions of the Sexual Offences (Amendment) Act 1992 apply in this case. Under those provisions, where a sexual offence has been committed against a person, no matter relating to that person shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of the offence. That prohibition lasts throughout the victim's lifetime, unless it is waived or lifted. That has not happened in this case, and there is no reason to suppose that it ever will.

On 20 October 2023, in the Military Court Centre at Catterick, the applicant (who was then 39 years of age) was convicted of two charges alleging sexual offences arising out of the same occasion against the same complainant. Charge 1 alleged sexual assault, and charge 2 alleged rape.

Having been so convicted, the applicant was then sentenced by the Court Martial to concurrent terms of imprisonment. Charge 1 resulted in a term of three and a half years' imprisonment, and charge 2 in a term of nine years' imprisonment. The total sentence was therefore one of nine years' imprisonment. In addition, he was dismissed from His Majesty's Armed Forces.

The applicant filed applications for leave to appeal against those convictions and for leave to appeal against those sentences. Those two applications were refused by the single judge and have now been renewed orally before the Full Court Martial Appeal Court.

We have heard oral submissions from Mr Ben Douglas-Jones KC and Mr Matthew Bolt on behalf of the applicant, and from Lieutenant Colonel Coombes on behalf of the prosecution. We are very grateful to all counsel for the assistance we have received, both in the oral submissions and also in the helpful written material which was filed with the court, including a bundle of all relevant authorities relating to both conviction and sentence.

In July 2022 the applicant, Michael Ball and the complainant were both serving at the same barracks as non-commissioned officers in the Army. He was a sergeant and the female complainant was a lance corporal. That is a significant difference in rank.

In the early hours of 17 July 2022, the complainant returned to the barracks, having been working in a second job nearby. She invited the applicant and two others to join her for a drink in her room. The room is known by the acronym SLA (single living accommodation). It was her private space.

Next door to the complainant's room was a room in which her then boyfriend lived. He had been deployed out of the United Kingdom on service abroad and was not present at the time.

When the applicant realised that the complainant's intention was that the two of them would not be alone in that room but that there would be other people present, he expressed a degree of concern. Because of his rank, he was not supposed to socialise with the junior non-commissioned officers in the block where they were accommodated. She said that the people she had invited would not "grass" on him and told him that if he did not want to drink in company with those other people, he should leave.

The party of four people gathered at about three o'clock in the morning. The applicant was clearly drunk. One of the witnesses described him as being "seven out of ten drunk", but it was clear that he had been drinking heavily for a long time and was substantially affected by alcohol, as no doubt were others present.

The complainant told the applicant that he could not sleep in her room, but that he could use her boyfriend's room next door. This would avoid him having to leave that accommodation block, where he was not supposed to be, in the early hours of the morning. She began to perceive his behaviour as strange. He left the room, apparently to go to sleep, but returned on at least two occasions. He wanted to know when the other two men present would leave. She again said that if he wanted to join the party he could stay, but if he wanted to go to bed he should go to bed.

At about five o'clock in the morning he was sick. Conversation took place, at his instigation, about the complainant's sex life with her boyfriend. She said that she had no intention of cheating on him.

Eventually the other two men, who had been present all through the night, left at about six or seven o'clock in the morning. At some point after that the complainant contacted her boyfriend on FaceTime and told him about the applicant who was using his room. She fell asleep during that call.

At about nine o'clock that same morning, she was woken up by knocking on the door. It was the applicant. She let him in, thinking that he was there in order to return the key before leaving. The account of the facts so far is largely taken from the complainant's description of the events of the night. Her account and that later given by the applicant were about to diverge very sharply at this point.

The complainant said that the applicant forced himself on her, kissing her neck and shoulder. She said that there was a prolonged struggle between them, during which she was trying to keep her away from her, specifically away from her vaginal area. She said that he overpowered her; that he managed to remove her shorts and forced her hands away from her genital area, at which point he licked her vagina. That was charge 1. That occurred immediately before he penetrated her vagina briefly with his penis. That was charge 2. According to the complainant, at this point the applicant said: "I've always wanted to fuck you. Beg for my cock". She said that she was shouting at that point, saying: "Get off me. Stop it! No! Get off me!" She said that the penetration lasted only a few seconds because the applicant appeared to realise the enormity of what he had done. At that point he got up, pulled up his underpants and trousers, told her not to tell anybody about it, and then left.

The complainant immediately told her boyfriend and others what had happened, and also told her mother. Her allegation was drawn to the attention of the Service Police, who began an investigation immediately.

The evidence on behalf of the prosecution was given by the complainant in accordance with the summary we have just set out. Evidence was also given by the other two soldiers who had been involved in the party in her SLA. Importantly, they were all asked to give evidence about the extent to which it was possible to hear what was happening in rooms such as the complainant's SLA in other parts of the building. The reason for that was that nobody else in the building heard anything during the incident between the applicant and the complainant about which they were able to give evidence. Specifically, no one heard any shouting of the kind described by the complainant.

Another witness was also in the close vicinity. He was smoking a cigarette on the nearby fire escape. He gave evidence about the circumstances in which he encountered the applicant after this incident. He also described encountering the complainant who was distressed. She told him what she said had happened in much the same terms as she later told the police and in due course the Court Martial. The witness also said that he had not heard anything which led him to think that something wrong was taking place in her room.

The prosecution relied upon evidence from the complainant's boyfriend who had been able to perceive and participate in some of these events by FaceTime during calls before and after the critical encounter between the applicant and the complainant. He told the Court Martial what he had learned from his then girlfriend in the call immediately before the incident and again after it, when she complained to him about what had happened.

The applicant's version was entirely different in relation to what had happened during the critical incident. He denied that the had sexually assaulted or raped the complainant. He said that when he entered her room she told him that she had been watching pornography and masturbating. She it was, according to him, who initiated sexual interaction by kissing him. He said that he reciprocated and that there then followed what appeared to him to be mutually satisfactory, entirely consensual sexual intercourse. He said that on at least two occasions during that activity the complainant made sounds which were consistent with her enjoying orgasm.

Evidence was given during the course of the Court Martial by the applicant as to the level of sound which the complainant had emitted, according to him. She, it will be recalled, said that she had shouted. He described the noise that she made when (as he saw it) she experienced orgasm as not being quite at a level depicted in the famous scene in the film "When Harry met Sally". We would understand that piece of evidence as meaning that the noise was significant, but not as loud as shouting.

The trial proceeded in a way which we do not need to explain in detail because, although our attention has been drawn to some interventions by the judge during the evidence, the principal focus of the application for leave to appeal against conviction is the summing up by the judge advocate to the Board, and the way in which he dealt with the evidence in the course of that summing up. There is no criticism of the legal directions. Those legal directions of course included the standard direction given in all criminal trials conducted in this way, that the law was for the judge, that the facts were for the Board to determine, and the responsibility for returning verdicts was theirs and theirs alone.

The submission set out in the renewed application for leave to appeal is that these convictions were unsafe because of a series of observations during the course of the summing up which were unbalanced and unfair, and which diminished the force of the defence case and undermined key evidence on which the defence relied.

"Members of the Board, much has been made of the fact that this took place in a Portakabin constructed block where walls were comparatively thin, compared to a traditionally brick constructed block, where noise may travel more easily. Well, make of that evidence as you wish. Whether it is important and to what extent it assists you in determining where the truth lies, well that is a matter for you. Of course use your own common sense, your own knowledge but you may wish to exercise a degree of caution when you assess this aspect. There is no expert evidence before you and you do not know necessarily what precise material the building is constructed out of, what level of noise is required for it to permeate a wall as in measured in decibels or something of that nature, how thick the walls were, whether noise travel is affected by temperature, closure or otherwise of windows and doors, what the actual noise is, is it a human voice, is it something else, to whom the voice belongs, whether other noises are being heard or could be heard simultaneously, how good or bad the recipient's hearing is, what effect is or may be if one is outside as opposed to within the building, in other words does noise travel more easily within the corridor as opposed to outside to a fire escape and so on and so forth. There are so many things to think about. And keep in mind my direction that you must not

The criticism in substance of that passage is that it sought to reconcile the evidence about levels of noise given by the applicant and the complainant so that the fact that nobody heard any noise at all which they could remember became a neutral one. There was, however, it is said, a significant defence point here in that the complainant's evidence was that she had shouted. This would be far more likely to have been heard, had it been true, than the lesser noises suggested to have been made by mutually enjoyable sexual intercourse. That point is said to have been undermined by the passage of the summing up which we have just set out.

The next complaint which we will deal with relates to the way in which the judge addressed the medical evidence in the course of the summing up. The medical evidence, on examination of the complainant to determine whether she had suffered any injury or other physical sign which might have been consistent with rape, as opposed to consensual sexual activity, was neutral. It neither proved nor disproved rape. It was consistent with either version. The judge made that perfectly clear when he dealt with the evidence in his summing up. The complaint that is made on behalf of the applicant is that when he summed up the evidence of the complainant, the judge simply reminded the Board that she had said that her complaint was supported by medical evidence because there were injuries of which she was aware. He did not at the point in the summing up remind the Board that the medical evidence was not in fact to that effect.

"Now, Members of the Board, I have already directed you that you do not have to decide every fact or disputed point that has been raised during the course of the trial only those that are relevant or necessary for you to reach your verdict. And it is a matter for you as to what extent, if at all, the issue of pornography assists you in determining where the truth lies. Is this simply a case of a young woman deleting browsing history as a matter of course, does not believe it is remotely relevant to the fact of being assaulted or raped and where there may be an element of embarrassment, which you may think understandable, a matter for you, or was this a deliberate attempt or ploy on her part to suppress evidence or paint a false picture that it was the defendant who borrowed her phone and briefly accessed Pornhub upon it. All these are matters for you or you may consider them not particularly helpful."

We apprehend that it is the last few words of that extract which have provoked this ground of challenge to the fairness of the summing up. The submission is that that issue was a matter of significance importance and in leaving it open to the Board to conclude that it was not, the judge advocate was stepping into the fray on behalf of the prosecution in a way which was unbalanced and impermissible.

Next, Mr Douglas-Jones has taken us through a series of what he described as "rhetorical questions". These were six different questions which the judge advocate suggested to the Board that they might like to consider. The submission is that each of them was a question designed to provoke a particular answer which would favour the prosecution. We will not set each of those questions out in the course of this judgment, but we will simply say this. There is indeed an element of truth in the submission that is made that the questions to which our attention has been drawn would draw the Board's minds towards points which would tend to favour the prosecution case. However, it is also the case that, in addition to the direction to which we have referred already about the functions of the judge and the Board in this form of trial, each of these questions was hedged with further specific directions about whether the Board felt that these questions were helpful, and how they should be answered if so, were matters for the Board to consider. The judge advocate made it clear on repeated occasions throughout his summing up that factual matters were for the Board.

In the written proposed grounds of appeal further points of a similar kind are set out. They are all designed to show that cumulatively there are so many complaints which can be made about the summing up that its overall effect is rendered unfair.

The prosecution responds by submitting that the trial overall was fair and that the summing up likewise properly left the factual evidence and the issues for the Board to resolve.

The overall complaint is as to the fairness of the Court Martial, in particular by reference to the judge's alleged interventions and to the alleged lack of balance in the summing up on the evidence.

As is necessary in a case of this sort, I have considered the grounds cumulatively and not simply individually.

I do not consider the judge's intervention during the questioning about noise to be unfair. The initial question by counsel that prompted the intervention was too open-ended to be acceptable; no request for a ruling, made in the absence of the [Board], as to the proper ambit of such questioning was made; and the whole issue of sound was permitted to emerge. The intervention did not distort the trial or devalue the defence case."

I can see no objection to the pithy summing-up on the medical evidence presented as agreed facts. The essential position was that such evidence was neutral, in that it was neither inconsistent with the prosecution case nor inconsistent with the defence case. To assert [as was asserted in the written grounds] that it 'positively assisted' the applicant in undermining the complainant's evidence is advocacy.

The summing up on the evidence concerning sound travel and noise seems to me to be sufficient: … I do not consider the various criticisms justified.

As to the deletion of the pornography from the complainant's phone, the point was sufficiently identified in the summing up. The current complaints seem to me to be essentially a reiteration of jury points.

The questions posed for consideration by the Board concerning the FaceTime call seem to me to have been relevant matters for consideration. It was made clear that these were matters for the Board to assess for themselves.

The point about the kiss message is of no substance, when the matter is put in context."

I can identify no error or imbalance in the judge's treatment of the words said to have been spoken by the applicant. I can accept the passage about motive to lie might have been better expressed but the passage, taken as a whole, was not unfair. The treatment of [the former boyfriend's] evidence also, in my view, was not slanted or unfair. I can also see no viable criticism of the treatment of inconsistencies."

I have considered the criticisms in the round. In my opinion they do not give rise to an arguable case that the Court Martial was unfair or convictions unsafe."

In essence, the conclusion to which we have come is that we agree with the single judge. We say just a little more in relation to the case as it has been advanced before us orally today.

In relation to the evidence about noise, we consider that the objection to the evidence given by the applicant about what could be heard within the building was, in hindsight, unnecessary and in error. Although the applicant had never lived in the building, he had been there frequently, including all night in July 2022 when all this happened. He was perfectly entitled to give such evidence as he could about what he had been able to hear from adjoining rooms in that building on occasions when he had been there. The fact that that argument had arisen during the course of evidence appears to have inspired the judge advocate to include in the passage of the summing up we have set out above, identifying various defects in the evidence which he thought may have followed from the fact that none of it was scientific or expert evidence. That passage may not have been of very much assistance to the Board when they evaluated the perfectly admissible and sensible evidence that they had from various people who knew the building about what they thought could be heard from within rooms such as that occupied by the complainant. The fact is that the complainant said that she had shouted at the applicant to get off her. There had been other people in the vicinity who might on the overall weight of the evidence have been expected to hear such a noise if it had ever been made. Nobody did. That was a perfectly sensible, straightforward point available to the defence which they could make on the evidence as it was. They did make it. The judge summed up the evidence, and gave the Board the direction which we have set out above. In our judgment, although it may have included some observations which were not particularly helpful, it is a long way from being any source of unfairness in the way that this straightforward issue was presented.

Equally, we consider that there is no merit in the submission that the way in which the medical evidence was presented by the judge was unfair. The Board, of course, were aware from the agreed evidence what the medical evidence could and could not say. The judge advocate reminded the Board of the evidence that the complainant had given about her perception of injuries which she said that she had sustained. The difference between those two sources of evidence was manifest. It remained manifest, even though at the point when he reminded the Board of the complainant's evidence, he did not repeat what he had already said about the medical evidence.

In a similar way, and compendiously, we turn to the evidence about the deletion of the search history and the various rhetorical questions about which the application complains. It is true that the questions which the judge advocate decided to pose, and the way in which he dealt with the deletion of the browsing history, did include observations and assumptions which might tend to favour the prosecution case. However, as we have said, he made it quite clear to the Board that in all of those areas it was they who had to decide what mattered and what did not, and where the truth lay. Standard directions in that regard were given and were no doubt heeded and followed.

In those circumstances we do not consider that the matters of which criticism is made rendered the summing up, and therefore the trial, unfair.

For all those reasons, in addition to those of the single judge, we refuse the application for leave to appeal against the convictions.

We now turn to renewed application for leave to appeal against sentence. We have set out all the relevant facts of the offences and will not repeat them.

The Board had victim personal statements from the complainant and from her mother. The Board also had some expert psychological evidence about the adverse impact on the complainant's wellbeing of the offences which had been committed against her by the applicant.

An application is made for leave to adduce fresh evidence in that respect. That application relates to a report by an additional medical expert, Dr Farnham, who gives evidence in that report of the impact of a subsequent criminal act against the complainant on her present wellbeing. She was the victim of stalking by somebody else in an altogether separate incident from that for which the applicant was responsible.

In the evidence before the Board, there was also discussion of the causative impact on the complainant's present condition of lack of suitable support provided for her by the Army in managing the aftermath of the experience to which she had been subjected. The balance of the evidence is that that lack of support and that subsequent stalking have had some causative effect on her present condition. We are prepared to approach the application for leave to appeal against sentence on that basis.

We do not find the fresh evidence from the ex-boyfriend and one other witness helpful. It purports to undermine the seriousness of the impact of the rape upon the complainant and to show that she has over-egged that pudding. We do not find that persuasive and pay it no heed.

The Board also had mitigation by way of evidence about the applicant himself and his service history. He had almost 23 years of service and had served during operational tours of Afghanistan. He was a senior non-commissioned officer and was of good character. His service was distinguished and the impact of dismissal and conviction for him has been very serious. He has suffered very substantial financial loss as a result of his pension entitlements being infringed. By being sent to prison, he has also caused great harm to his own family. He is married and has children. There is fresh evidence, which we do accept and to which we do have regard, from Catherine Howell OBE, who knows the family well and who describes the very serious distress that has been caused to the two young children by their father's imprisonment. We entirely accept all of that evidence.

There was a pre-sentence report which was of relatively little assistance because the applicant continued to deny any criminal guilt arising out of the events which had led to his convictions.

The Board therefore had to assess all of that evidence and come to conclusions about sentence. The Board decided that, applying the Sentencing Council guideline for rape offences, this was a category 2B case. Category 2 harm applied because the complainant had on her own account and on the account of the medical witnesses who had given evidence about her, sustained severe psychological injury. There was in this case a high degree of psychological harm. Indeed, the Board went so far as to say that the evidence drove it to the conclusion that the harm was so great that there should be an increase from the starting point in the relevant category range to take account of it.

So far as culpability was concerned, the Board was aware that there were no specific factors requiring this case to be placed in category A. They did consider the Judge Advocate Generals' Guidance on Sentencing in the Service Courts – version 6, part 2, at page 76, where service factors which may increase culpability or harm are identified. The table there shows that service factors which may increase culpability include: use of rank or position to commit offence; and offence committed in victim's accommodation. Service factors which may increase harm include: "victim is junior in rank".

The Board found that although there was a very substantial difference in rank between the applicant and the complainant, the applicant had not used his rank or position to commit the offence. Accordingly, that service factor was not made out. However, the commission of the offence in the victim's accommodation was a matter to which the Board gave weight, as they were entitled to do. They explained that an individual's private space when serving in the Armed Services is of particular significance; it was "absolutely sacrosanct". They observed that it was the one place where an individual was entitled to feel safe and secure when serving in the Armed Services. They did not, however, conclude that that factor should lead to an increase in culpability for the purposes of step 2 of the Sentencing Council's guideline. They decided to treat it instead as an aggravating factor. The Board identified, therefore, the starting point from the guideline as being eight years' custody. The range is seven to nine years. They placed it higher in that range to reflect the degree of psychological harm, as we have said. They indicated that in doing so they made an allowance for the fact that there were at that stage, so far as they knew, different causative factors leading to that psychological harm, including the want of care by the Army after the rape. The Board also identified the fact that there were two separate offences. They therefore elevated that starting point from eight to eight and a half years' imprisonment for those two reasons.

They then identified the aggravating and mitigating factors. They decided that the mitigation arose out of the applicant's service record, his family circumstances and the financial impact on him because of his inevitable dismissal. They decided that only an immediate custodial sentence could be justified and assessed the shortest possible sentence for the offence of rape as nine years' imprisonment. They did that by taking as the starting point, increased for the factor identified, eight and a half years. They then assessed that the aggravating factors outweighed the mitigating factors. The aggravating factors required an increase from eight and a half to nine and a half years; and the mitigating factors required an adjustment downwards by six months to nine years' imprisonment. That sentence was intended to take account of both offences; the first count was dealt with by way of a concurrent term of imprisonment.

The Board decided that the applicant was not dangerous for the purposes of the statutory regime and therefore a determinate sentence of nine years' imprisonment was passed.

The proposed grounds of appeal against sentence were attractively amplified in oral argument by Mr Bolt. He identified three errors which he said that the Board had made. He said that the starting point had been elevated to an extent which was more than appropriate; that the aggravating factors had been overvalued and the mitigating factors undervalued. He placed that last point at the heart of his submissions, namely the significance of the personal mitigation available to the applicant.

We have heard detailed submissions about the aggravating factors and about the assessment of harm. The submission was that the Court Martial had been wrong to move up within the range for harm because although the harm to the complainant was severe, it was not all due to the crimes committed by the applicant.

We turn to our conclusions about the submissions that have been made to us.

First, we agree with the Board's assessment of the categorisation of these offences. The offence of rape was a category 2B offence, with a starting point of eight years' imprisonment and a range of seven to nine years. The reason it is in that category is precisely because there was substantial evidence of severe psychological harm caused by the offending. We do not accept that that harm should in some way be reduced because the offences committed by the applicant cannot be said to be the sole cause of all of it. The complainant has been reduced very much in her functioning and in her ability to lead and enjoy an ordinary life by a series of events. The principal trigger which set those events in chain was the offence of rape committed by the applicant against her. Before that she was thriving; since that she has never been the same again.

It is not possible for a sentencing court to tease out different causative factors in circumstances such as this in the way that we are invited to do. The complainant's quality of life and mental state have been seriously undermined, and the applicant is fully responsible for playing the major part in bringing about that state of affairs.

Having said that, we consider that the starting point in the guideline of eight years' imprisonment already assumes severe psychological harm. It is for that reason that the offence is placed in a higher category than other offences of rape, all of which are of course extremely serious crimes. There is, in our judgment, a danger of double counting in making a substantial increase in the starting point in a case of this kind.

Secondly, we consider that in increasing the sentence from the guideline starting point of eight years to a sentence of nine and a half years' imprisonment, before making a reduction for mitigation, the Board did give excessive weight to aggravating factors. Most importantly, however, we conclude that the mitigation available to the applicant was undervalued by the sentence that was imposed in the end.

We do not accept Lieutenant Colonel Coombes' submission that there was no mitigation. The personal mitigation arises from long and distinguished service in the Army, and serving the country in times of need. It arises from the impact on the applicant's family of his offending and his imprisonment, which is inevitable; and there is also an element of mitigation to be found in the very substantial financial loss which results from the loss of his career and dismissal from the service.

For all of those reasons, we have concluded that the sentence imposed by the Board was manifestly excessive and that we should give leave to appeal against sentence, as we do.

We consider that, balancing all the factors which we have set out in the course of this judgment, a sentence somewhat less than the guideline starting point would have been appropriate and is the sentence which we will impose in substitution for the Board's sentence of nine years' imprisonment, which we shall quash.

In our judgment, having regard to the matters of mitigation available to the applicant, a sentence of seven and a half years' imprisonment would have sufficed to deal with this extremely serious set of offences.

Accordingly, for those reasons, the appeal against sentence is allowed. The sentence of nine years' imprisonment is quashed and in its place there will be a sentence of seven and a half years' imprisonment.