A Muslim reservist who refused to take part in the war in Iraq because of his religious beliefs today lost his appeal against an RAF prosecution for going absent without leave.
Leading Aircraftsman Mohisin Khan, of Ipswich, Suffolk, absented himself from duty between February 24 and March 5 last year on the grounds of conscientious objection.
His absence resulted in his arrest, charge and punishment by the RAF, and he was fined nine days' pay and seven days' privileges.
Mr Khan was last year mobilised, with others, to return to the regular forces and supplement service personnel in the conflict. The high court was today told the 25-year-old held a "genuine and deep belief" that the approaching war was both wrong and contrary to his religion.
He said he did not want to be asked to fight against fellow Muslims, and felt he could not condone any military action against another state that had not come by way of "self-defence".
However, Lord Justice Rix and Mr Justice Forbes, sitting in London, ruled that there was no interference with his rights "by reason of the appellant's recall, arrest, prosecution or conviction".
They backed a decision by the RAF's summary appeal court to uphold his conviction for the offence of being absent without leave (awol).
Mr Khan had told the court he had a right to conscientious objection, and that such a right provided him with a defence to the charge against him.
The judges ruled that he had failed to make his concerns known, and had never formally applied to be treated as a conscientious objector prior to his arrest despite having information about the correct procedure to follow.
Lord Justice Rix said that, although Mr Khan's recall papers did not expressly refer to conscientious objection as a ground for claiming exemption from service, they sufficiently identified "compassionate reasons" as "a relevant ground".
Once back in service, before the outbreak of war and before going awol, Mr Khan "would have been fully entitled to apply for discharge" under the Queen's regulations on the grounds of conscientious objection.
Lord Justice Rix said it was "mysterious" why Mr Khan had not invoked the procedure, even when he knew about it because of an information leaflet.
"The RAF is plainly entitled to maintain a system of reservist recall, and to discipline those accepted back into service who go absent without leave and do so prior to raising any question of conscientious objection," he said.
He added that, on the facts of the case, there could be no breach of his "right to manifest his religion" under article nine of the European convention on human rights by his being arrested and "very mildly punished" for being awol.
The circumstances were that "he went absent without leave before any indication whatsoever of any conscientious objection, despite every opportunity of making his concerns known".
Despite having raised the issue in conversations during his absence, "he never formally applied to be treated as a conscientious objector prior to his arrest, prosecution, or at any relevant time", the judge said.