Conscientious objection in the armed forces

Rex Features
By Guy Skelton

After the end of national service in the early 1960s, the creation of a volunteer armed forces led to the issue of conscientious objection in Britain being largely relegated to the annals of history. However, a freedom of information request by The Independent revealed that since 1999 there have been 21 applications from members of the armed forces for discharge on the grounds of conscientious objection.

The case ofR v Lyons, [2011] All ER (D) 16 (Dec), 2011] EWCA Crim 2808 highlights the difficulties volunteer armed forces face in relation to conscientious objection.

After serving 5 years in the Royal Navy, and having reached the rank of Leading Medical Assistant, Michael Lyons received an order that he was to be deployed to Afghanistan on 1 April 2011. Around the time of receiving the order, Mr Lyons had begun to read articles and reports in the media about the war in Afghanistan (including matters exposed by the Wikileaks website). From the literature he read Mr Lyons formed the opinion that the UK’s involvement was wrong and that it would be morally wrong for him to be involved in such military intervention. He therefore applied for discharge on the ground that he was a conscientious objector. Mr Lyons followed the procedure for conscientious objection in force at the time (it has since been altered) as set out in Personnel, Legal, Administrative and General Orders 0801 (PLAGO 0801). Paragraph one provided:

“Any RN/RM officer or rating/other rank who claims to have developed a genuine conscientious objection to further service may apply for premature discharge without regard to length service or the manpower situation in the branch…”

The application was refused and he appealed to the Advisory Committee on Conscientious Objectors (ACCO). The appeal was the first to come before ACCO in 14 years. Prior to his appeal hearing, Mr Lyons attended operational training to prepare him for deployment in Afghanistan. Mr Lyons refused to participate on the grounds that he was awaiting his appeal hearing and was subsequently arrested and charged with intentionally disobeying a lawful command under s 12(1) Armed Forces Act 2006. He was sentenced to seven months’ military detention, demoted to able seaman, and dismissed from the service.

I do not intend to embark on a full examination of the relative merits of Mr Lyons’ case as such a discussion is beyond the scope of a short blog post. However, both the ACCO hearing and subsequent court martial raise a number of interesting points in relation to the interplay between conscientious objection and an individual’s Art 9 ECHR freedom of thought, conscience and religion.

The ACCO hearing on 17 December 2010 stated that:

“The Committee was firmly of the view…that political objection by a serviceman to service in a particular theatre cannot be the foundation for an application to be discharged from military service.”

The characterisation of Lyon’s objection as political rather than moral is surely to assume that an individual cannot hold a moral opinion on politically driven operational decisions. This seems to rail against the UK’s history of recognising the possibility of a genuine conscientious objection on the part of a person who had previously volunteered for military service.

Both the Court Martial and ACCO placed a great deal of weight on the potential operational difficulties and dangers posed by conscientious objectors. Much of the Court Martial focussed on Article 9(2) and the limitations placed on the Article 9(1) freedom. This is referred too very frankly in paragraph 39 of the judgment and the potential “corrosive effect on morale” posed by conscientious objectors. This position is understandable in combat/frontline situations but loses some of its force away from the battlefield. The very nature of the term “conscientious objector” implies a degree of control, care, and thought in coming to a decision and seems quite separate from battlefield desertion or dereliction of duty.

Although the policy considerations are persuasive, perhaps incorporation of Recommendation CM/Rec (2010) 4 of the Committee of Ministers for cases of early indication of conscientious objection would provide greater latitude when considering cases of conscientious objection. Paragraph 43 of the recommendations states:

43.          Requests by members of the armed forces to leave the armed forces for reasons of conscience should be examined within a reasonable time. Pending the examination of their requests they should be transferred to non-combat duties, where possible.

The recommendation would chime with the “living instrument” approach advocated in Bayatyan v Armenia App. No. 23459/03) [2011] ECHR 23459/03 in that it would allow for the consideration of the potential validity of the grounds for conscientious objection as well as the particular operational circumstances without giving default preference to either side.

Further reading.