B.E.V. v. THE UNITED KINGDOM



                      AS TO THE ADMISSIBILITY OF

                      Application No. 29717/96

                      by B.E.V.

                      against the United Kingdom

     The European Commission of Human Rights (First Chamber) sitting

in private on 9 April 1997, the following members being present:

           Mrs.  J. LIDDY, President

           MM.   M.P. PELLONPÄÄ

                 E. BUSUTTIL

                 A. WEITZEL

                 C.L. ROZAKIS

                 L. LOUCAIDES

                 B. MARXER

                 B. CONFORTI

                 I. BÉKÉS

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

                 M. VILA AMIGÓ

           Mrs.  M. HION

           Mr.   R. NICOLINI

           Mrs.  M.F. BUQUICCHIO, Secretary to the Chamber,

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 28 November 1995

by B.E.V. against the United Kingdom and registered on 5 January 1996

under file No. 29717/96;

     Having regard to the reports provided for in Rule 47 of the Rules

of Procedure of the Commission and the respondent Government's

indication that they have no observations on the admissibility of the

applicant's complaints;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant is a British citizen born in 1963 and resident in

Fratton, the United Kingdom. He is represented before the Commission

by Mr. John McKenzie, a solicitor practising in London. The facts as

represented by the applicant may be summarised as follows.

A.   Particular facts of the case

     In or about December 1994 the applicant, a Lieutenant in the

Royal Navy, was charged (pursuant to section 42 of the Naval Discipline

Act 1957) with three charges of assault contrary to the Criminal

Justice Act 1988 and with one charge of criminal damage contrary to the

Criminal Damage Act 1971 (all such offences being civilian criminal

offences). He was also charged with drunkenness contrary to section

28 of the 1957 Act.

     By notice dated 7 December 1994 the Convening Authority convened

a court-martial to try the applicant on the charges, which took place

on 14 and 15 of December 1994. The applicant pleaded guilty to two of

the charges of assault, was found guilty by the court-martial of the

remaining charges and was sentenced to be dismissed from the navy.

     On 12 January 1995 the applicant petitioned the Defence Council

against conviction (as regards the charges upon which he was found

guilty) and against sentence. On 14 March 1995 the applicant also

applied for leave to appeal to the Courts-Martial Appeal Court. On

15 June 1995 a single judge of the Courts-Martial Appeal Court refused

leave to appeal to that court that judge finding that the grounds of

appeal put forward were not arguable. By letter dated 1 August 1995,

the Convening Authority was informed that the petition had been

rejected by the Admiralty Board and that notice of the decision of the

Admiralty Board was to be given to the applicant.

B.   Relevant domestic law and practice

1.   General

     The law and procedures in respect of naval courts-martial are

contained in the Naval Discipline Act 1957 ("the 1957 Act") and in

certain Statutory Instruments made under the 1957 Act including the

Naval Courts-Martial General Orders (Royal Navy) 1991. Under section

42 of the 1957 Act "civilian" offences are also offences under the 1957

Act. Therefore, even if the charge relates to a civilian offence, in

most cases naval personnel can be tried on that charge by the naval

authorities under the 1957 Act.

2.   Composition of a naval court-martial

     A naval court-martial consists of between five and nine naval

officers not below the rank of lieutenant, though the rank of the

members may be higher depending on the rank of the accused. All members

cannot belong to the same ship or naval establishment and the captain

and executive officer of the accused's ship cannot sit on the court-

martial.

     A President of the court-martial will be appointed from the

members. A Judge Advocate must also take part in every naval court-

martial. A Clerk of the Court is also appointed and is responsible for

certain administrative and routine duties in connection with the court-

martial. A Provost Marshal may be appointed to take the accused into

custody and to keep the accused until he is delivered in due course of

law. A Prosecutor must be appointed and he may be a legally qualified

naval officer or any other competent person. In exceptional cases

civilian counsel will be appointed as Prosecutor.

     An accused may engage, inter alia, an officer or civilian counsel

who may be reasonably available to assist him with the defence ("the

accused's friend"). The accused's friend advises the accused, may

examine the accused if he desires to give evidence, cross-examine

witnesses for the prosecution and examine witnesses for the defence.

The accused's friend may make any submissions that the accused might

make and may, on the accused's behalf, open and close the defence case

and, if necessary, make a statement in mitigation of punishment. If the

accused wishes to be represented by a civilian lawyer he may apply to

the Convening Authority for approval of legal aid.

3.   Convening Authority

     A court-martial may be ordered by the Defence Council and any

officer authorised by the Defence Council. Any officer so authorised

may in turn authorise an officer under his command (including a flag

officer) to so convene a court-martial. The officer who convenes the

court-martial is referred to as the Convening Authority.

     The Convening Authority receives the circumstantial letter,

orders the convening of a court-martial and must appoint the date, time

and place for the trial. Notice of the court-martial must be posted in

a place accessible to the public and press at least twenty-four hours

before the court-martial. The Convening Authority appoints the

President and other members of the court-martial. He also appoints, or

directs an officer to appoint, a Judge Advocate, a Clerk, a Prosecutor

and a Provost Marshal. He must also ensure that the accused is properly

assisted. In this latter respect, unless the accused desires to

represent himself or to instruct civilian counsel, the Convening

Authority must nominate a competent naval officer to act as the

accused's friend.

     The Convening Authority must inform the accused that any

witnesses he may desire to call and whose attendance may be reasonably

procured, will be summoned on his behalf. The Convening Authority

directs the charges upon which the accused is to be brought to trial.

However, if he is satisfied with the charge sheet accompanying the

circumstantial letter (see 5. below), he can simply countersign the

charge sheet.

     The Convening Authority can, in exceptional circumstances,

countermand the ordering of a court-martial before its commencement and

dissolve a court-martial during the trial if circumstances arise which,

in his opinion, render such action necessary. On receipt of the report

on the finding and sentence of a court-martial, the Convening Authority

either takes the necessary steps to give effect to the sentence or, if

he doubts the correctness of the findings or the sentence, he shall not

put the sentence into effect pending reference to the Defence Council.

4.   Judge Advocates

(a)  The Judge Advocate of the Fleet is appointed by the Queen on the

recommendation of the Lord Chancellor and is removable on the same

authority for inability or misbehaviour. He must be a barrister or

advocate of not less than ten years standing. He acts as a legal

advisor to the Admiralty Board on matters regarding the administration

of justice under the 1957 Act. In particular, he advises that Board

whether a court-martial was properly conducted according to law and

whether the conviction can stand, gives a view on the sentence and

draws attention to any gross errors or irregularities. He also gives

the Chief Naval Judge Advocate his view as to the manner in which the

naval barristers have conducted themselves as Judge Advocate,

Prosecutor and as the accused's friend.

(b)  The Chief Naval Judge Advocate is a serving officer of the rank

of captain of the Royal Navy and is also a barrister. The Chief Naval

Judge Advocate is assisted by a staff of serving naval officers who are

barristers. His duties include assisting and consulting with the Judge

Advocate of the Fleet and sitting as Judge Advocate at naval courts-

martial where the seriousness of the charges, the complexity of the

trial, the rank of the accused or the interest of the Service may so

require.

(c)  In all other cases a Judge Advocate is appointed to a court-

martial from the staff of the Chief Naval Judge Advocate. The

appointment is made by the Convening Authority, by an officer nominated

by the Convening Authority or by the President of the court-martial.

     Before the trial the Judge Advocate appointed must inform the

Convening Authority of any defect in the constitution of the court-

martial. He advises the court-martial, whether his opinion is requested

or not, upon all questions of law and procedure which may arise and the

court-martial must accept his advice unless there are weighty reasons

for rejecting it, in which case those reasons must be recorded.

     The Judge Advocate must ensure that the accused does not suffer

any disadvantage during the hearing in consequence of, inter alia, the

accused's position, ignorance or incapacity to examine witnesses.

Before the closing of the trial the Judge Advocate sums up the relevant

law and evidence. The Judge Advocate is not present when the court

considers its finding and, if during the court-martial's deliberations

on the charges further advice is required, the court-martial must

receive that advice in open court. The Judge Advocate also advises the

court-martial on sentence but not in open court.

5.   Pre-hearing matters

     The Commanding Officer of the accused applies to the Convening

Authority for a court-martial by way of a "circumstantial letter".

     The circumstantial letter must report the circumstances upon

which a charge is founded in sufficient detail to show the real nature

and extent of the offence. Any statement made by the accused in the

course of inquiries, during investigation or after he has been charged

must be forwarded in a separate document attached to the letter. A

charge sheet in the prescribed form, a list of witnesses for the

prosecution, summaries of evidence of those witnesses and a list of

exhibits which the Prosecutor proposes to put in evidence must

accompany the circumstantial letter.

     As soon as practicable after the accused has been remanded for

trial by court-martial, and in any case not less than twenty-four hours

before his trial, the accused must receive a copy of the circumstantial

letter together with its annexes.

6.   Preliminary matters during the court-martial

     The accused is given an opportunity to object to any particular

member of the court-martial and to its general constitution. If the

objection to the President is upheld the court must adjourn until

another is appointed. If an objection to a member is upheld a member

may be appointed from the "spare members list" and, if an objection as

to the constitution of the court-martial is upheld, the court-martial

must adjourn and report the matter to the Convening Authority. All

members of the court, the Judge Advocate, the Clerk and any other

officers of the court-martial must take a prescribed oath or

affirmation.

     The accused may also challenge the court-martial's jurisdiction.

If the court-martial allows the challenge the court-martial must

adjourn and report to the Convening Authority who can, if he considers

that the challenge is not well founded, order that the court-martial

continues as constituted.

7.   Procedure in the event of a plea of guilty

     Before the court accepts a plea of guilty, the Judge Advocate

must ensure that the accused understands the charge to which he has

pleaded and the different procedure which will result from the plea.

The Prosecutor then reads the circumstantial letter. Before the court

proceeds to deliberation on sentence, the Prosecutor must whenever

possible call relevant witness evidence as regards information in the

possession of the naval authorities as to the accused's background and

history which may have rendered the accused more likely to commit the

offence, as to his service history and as to his previous convictions.

     The accused may also give evidence and call witnesses in

mitigation. The court-martial must also take note of the accused's

naval record (for example, awards for gallantry).

     The members of the court-martial retire (with the Judge Advocate

and the Clerk) to consider the sentence. The court-martial does not

give reasons for its decision on sentence.

8.   Post-hearing matters

(a) A convicted person may petition the Defence Council against the

findings or sentence or both. Having reviewed the petition, the Defence

Council may, inter alia, quash or alter findings, authorise a re-trial

and annul, remit or alter sentences. However, those powers may be, and

are normally, carried out by the Admiralty Board or by any officer

empowered in this respect by the Admiralty Board.

     Should an appeal be lodged to the Courts-Martial Appeal Court,

the functions of the Defence Council cease.

(b) The Courts-Martial Appeal Court was established by the Courts-

Martial (Appeals) Act 1951 and was confirmed by the Courts-Martial

(Appeals) Act 1968. The Courts-Martial Appeal Court has the same status

and, in essence, the same procedure as the Court of Appeal, Criminal

Division and considers appeals from courts-martial. The judges of this

court include ordinary and ex officio judges of the Court of Appeal and

such judges of the High Court as are nominated by the Lord Chief

Justice.

     There is, however, no provision for an appeal against sentence

only, although certain powers of revising such sentences, pursuant to

an appeal against conviction, are available to the Courts-Martial

Appeal Court.

COMPLAINTS

     The applicant complains under Article 6 para. 1 of the Convention

that he did not receive a fair and public hearing by an independent and

impartial tribunal established by law.

     He also complains under Article 6 para. 3(c) of the Convention

about the nature of his legal representation during the court-martial.

The applicant further complains under Article 13 of the Convention that

he had no effective remedy as regards these violations of Article 6 of

the Convention.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 28 November 1995 and was

registered on 5 January 1996.

     On 4 September 1996 the Commission decided to communicate the

application but not to request the parties' observations.

     In their letter received on 20 December 1996 the Government

stated that they have no observations on the admissibility of the

application.

THE LAW

     The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention that he was denied a fair and public hearing by an

independent and impartial tribunal established by law.

     He also complains under Article 6 para. 3(c) (Art. 6-3-c) of the

Convention about the nature of his legal representation during the

court-martial and, under Article 13 of the Convention, that he had no

effective remedy as regards these violations of Article 6 (Art. 6) of

the Convention.

     The Government have no observations on the admissibility of the

applicant's complaints.

     The Commission considers that the application raises complex and

serious issues under Articles 6 and 13 (Art. 6, 13) of the Convention

which require determination on the merits. It follows that these

complaints of the applicant cannot be dismissed as manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention. No other ground for declaring them inadmissible has been

established.

     For these reasons, the Commission, unanimously,

     DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

     merits.

  M.F. BUQUICCHIO                                 J. LIDDY

     Secretary                                    President

to the First Chamber                         of the First Chamber

 

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