AS TO THE ADMISSIBILITY OF
Application No. 29374/95
by Derek DONNELLY
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 16 April 1998, the following members being present:
MM M.P. PELLONPÄÄ, President
N. BRATZA
A. WEITZEL
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
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 29 September 1995
by Derek DONNELLY against the United Kingdom and registered on
24 November 1995 under file No. 29374/95;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the statement by the respondent Government in their letter dated
26 February 1997 that they had no observations to make on the
admissibility of the application;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen, born in 1961 and resident in
Gateshead. He is represented before the Commission by Pearson
Caulfield, a firm of solicitors practising in Newcastle Upon Tyne. The
facts as submitted by the applicant, upon which the Government have not
commented, may be summarised as follows.
A. Particular circumstances of the case
In early January 1993 the applicant was interviewed by the
military police in relation to an alleged incident which occurred
around midnight on 30/31 October 1992. By charge sheet dated
5 April 1993 the applicant, then a non-commissioned officer in the
army, was charged (pursuant to section 70(1) of the Army Act 1955) with
assault occasioning actual bodily harm or, in the alternative, with
common assault contrary to the Offences Against The Person Act 1861 and
the Criminal Justice Act 1988, respectively.
The Convening Officer, by order dated 1 October 1993, convened
a district court-martial to try the applicant on the charges. The
applicant was represented by a civilian solicitor and an army officer.
The applicant was found guilty of assault occasioning actual bodily
harm by the court-martial on 21 December 1993 and was sentenced to six
months detention, to be dismissed from the army and to be reduced to
the ranks.
The applicant petitioned the Confirming Officer in relation to
conviction and sentence. That officer confirmed both conviction and
sentence and his conviction and sentence were promulgated on
19 January 1994. By letter dated 9 May 1994 the applicant's
representatives were informed of the decision, taken by the Army Board,
to reject the applicant's subsequent petition to the Defence Council.
On 22 February 1995 the application for leave to appeal against
conviction and sentence to the Courts-Martial Appeal Court was rejected
by a single judge of that court. The single judge indicated that he had
considered the proceedings and grounds presented by the applicant but
had concluded that there was no substance in the applicant's
complaints. On 2 May 1995 the renewed application for leave to appeal
against conviction and sentence to the full Courts-Martial Appeal Court
was rejected by that court, that court handing down a detailed judgment
in this respect.
B. Relevant domestic law and practice
The principal law and procedures applicable are contained in the
Army Act 1955 ("the 1955 Act") prior to its amendment by the Armed
Forces Act 1996 ("the 1996 Act"), which latter Act came into force on
1 April 1997. Accordingly, and apart from section (g) below, the
following is an outline of the pre-1996 Act law and practice.
(a) General
Many civilian offences were also offences under the 1955 Act
(section 70(1)). Although the final decision on jurisdiction lay with
the civilian authorities, army personnel who were accused of such
offences were usually tried by the army authorities unless, for
example, civilians had been in some way involved.
Depending on their gravity, charges under the 1955 Act could be
tried by district, field or general court-martial. These were not
standing courts: they came into existence in order to try a single
offence or group of offences.
At the time of the events in question, a district court-martial
consisted of a President, who could not be under the rank of Field
Officer and was appointed by name by the Convening Officer, and at
least two other officers, appointed either by name by the Convening
Officer or, at the latter's request, by their commanding officer.
Each member of the court-martial had to swear the following oath:
"I swear by almighty God that I will well and truly try the
accused before the court according to the evidence, and that I
will duly administer justice according to the Army Act 1955,
without partiality, favour or affection, and I do further swear
that I will not on any account at any time whatsoever disclose
or discover the vote or opinion of the president or any member
of this court-martial, unless thereunto required in the due
course of law."
(b) The Convening Officer
Before the coming into force of the 1996 Act, the Convening
Officer of a district court-martial had to be a "qualified officer" or
an officer not below the rank of Colonel to whom the qualified officer
had delegated his or her powers. To be a "qualified officer", an
officer had to be not below the rank of Field Officer or corresponding
rank and in command of a body of the regular forces or of the command
within which the person to be tried was serving.
The Convening Officer assumed responsibility for every case to
be tried by court-martial. He would decide upon the nature and detail
of the charges to be brought and was responsible for convening the
court-martial.
He would draw up a convening order, which would specify, inter
alia, the date, place and time of the trial, the name of the President
and the details of the other members, all of whom he could appoint. He
ensured that a judge advocate was appointed by the Judge Advocate
General's Office and, failing such appointment, could appoint one. He
also appointed, or directed a commanding officer to appoint, the
prosecuting officer.
Prior to the hearing, the Convening Officer was responsible for
sending an abstract of the evidence to the prosecuting officer and to
the judge advocate, and could indicate the passages which might be
inadmissible. He procured the attendance at trial of all witnesses to
be called for the prosecution. When charges were withdrawn, the
Convening Officer's consent was normally obtained, although it was not
necessary in all cases, and a plea to a lesser charge could not be
accepted from the accused without it. He had also to ensure that the
accused had a proper opportunity to prepare his defence, legal
representation if required and the opportunity to contact the defence
witnesses, and he was responsible for ordering the attendance at the
hearing of all witnesses "reasonably requested" by the defence.
The Convening Officer could dissolve the court-martial either
before or during the trial, when required in the interests of the
administration of justice (section 95 of the 1955 Act). The Convening
Officer usually also acted as Confirming Officer.
(c) The Judge Advocate General and judge advocates
The Judge Advocate General at the time of the events in question
was appointed by the Queen in February 1991 for five years. He was
answerable to the Queen and removable from office by her for inability
or misbehaviour. He had the role of adviser to the Secretary of State
for Defence on all matters touching and concerning the office of Judge
Advocate General, including advice on army law and the procedures and
conduct of the court-martial system. He was also responsible for
advising the confirming and reviewing authorities following a court-
martial.
Judge advocates are appointed to the Judge Advocate General's
Office by the Lord Chancellor. They must have at least seven and five
years experience respectively as an advocate or barrister.
At the time of the events in question, a judge advocate was
appointed to each court-martial, either by the Judge Advocate General's
Office or by the Convening Officer. He was responsible for advising the
court-martial on all questions of law and procedure arising during the
hearing and the court had to accept this advice unless there were
weighty reasons for not doing so. In addition, in conjunction with the
President, he was under a duty to ensure that the accused did not
suffer any disadvantage during the hearing. At the close of the
hearing, the judge advocate would sum up the relevant law and evidence.
Prior to the coming into force of the 1996 Act, the judge
advocate did not take part in the court-martial's deliberations on
conviction or acquittal, although he could advise it in private on
general principles in relation to sentencing. He was not a member of
the court-martial and had no vote in the decision on conviction or
sentence.
(d) The court-martial hearing
At the commencement of the trial, the accused could object to
individual members of the court-martial, such objection being
considered in closed court.
The accused was then asked to plead in respect of the charge. If
a plea of not guilty was entered the procedure was similar to that
followed in the (civilian) Crown Court. After the prosecution had made
its case, the defence could enter a submission of no case to answer.
If this submission was not accepted, the judge advocate would advise
the accused on the alternatives open to him and the defence would
proceed with its case. Witnesses could be called for the prosecution
and the defence and both sides could make a closing submission, the
defence submission being the last. During the trial the court-martial
could adjourn to consult the Convening Officer on points of law; the
latter then had to take legal advice from the Judge Advocate General.
The members of the court-martial retired (without the judge advocate)
to deliberate on their findings, returned and pronounced those
findings. Their votes and opinions were private and it was not
disclosed whether the decision had been by a majority. In the event of
a conviction or a plea of guilty, the prosecuting officer put in
evidence the defendant's service record and other evidence having a
bearing on the sentence to be imposed. The defence made a plea in
mitigation and could call witnesses in support. The members of the
court-martial then retired (this time with the judge advocate) to
consider the sentence.
The sentence was announced in open court. There was no provision
for the giving of reasons by the court-martial for its decision on
guilt or sentence.
(e) Confirmation and post-hearing reviews
Until the amendments introduced by the 1996 Act, the findings of
a court-martial were not effective until confirmed by a "Confirming
Officer". Prior to confirmation, the Confirming Officer used to seek
the advice of the Judge Advocate General's Office, where a judge
advocate different from the one who acted at the hearing would be
appointed. The Confirming Officer could withhold confirmation or
substitute, postpone or remit in whole or in part any sentence.
Once the sentence had been confirmed, the defendant could present
a petition of appeal against conviction and/or sentence to the
"reviewing authority", which was usually the Army Board in cases
involving army personnel. It had the power to quash a finding and to
exercise the same powers as the Confirming Officer in relation to
substituting, remitting or commuting the sentence. A petitioner was not
informed of the identity of the Confirming Officer or of the reviewing
authority. No statutory or formalised procedures were laid down for the
conduct of the post-hearing reviews and no reasons were given for
decisions delivered subsequent to them. Neither the fact that advice
had been received from the Judge Advocate General's Office nor the
nature of that advice was disclosed.
(f) Courts-Martial Appeal Court
The Courts-Martial Appeal Court ("CMAC") was established by the
Courts-Martial (Appeals) Act 1951 and was confirmed by the Courts-
Martial (Appeals) Act 1968. The CMAC had the same status and, in
essence, the same procedure as the (civilian) Court of Appeal, Criminal
Division. Its judges included ordinary and ex officio judges of the
Court of Appeal and judges of the High Court nominated by the Lord
Chief Justice.
If an appeal petition was rejected by the Army Board an appellant
could apply to a single judge of the CMAC (and, if necessary, also to
the full court) for leave to appeal against conviction. There was no
provision for an appeal against sentence only, although certain powers
of revising sentences, pursuant to an appeal against conviction, were
available to the CMAC.
The hearing of the substantive appeal did not constitute a full
rehearing on all points of fact and law. However, the CMAC was
empowered to consider any question required for the doing of justice
and could order a retrial. It also had power, inter alia, to order the
production of documents or exhibits connected with the proceedings,
order the attendance of witnesses, receive evidence, obtain reports
from members of the court-martial or from the judge advocate and order
a reference of any question to a special commissioner for inquiry.
The CMAC had to allow an appeal against conviction if it
considered that the finding of the court-martial was, in all the
circumstances, unsafe or unsatisfactory or involved a wrong decision
on a question of law. The appeal had also to be allowed if there was
a material irregularity in the course of the trial. In any other case,
the appeal had to be dismissed. An appellant required the leave of the
CMAC to attend any hearing in relation to the appeal. Leave would only
be granted where the CMAC considered that his presence would serve some
useful purpose or was necessary in the interests of justice. Legal aid
for an appeal to the CMAC was available under certain conditions and
the appellant could obtain an order for costs in his favour if his
appeal was allowed.
A further appeal, on a point of law of general public importance,
could be made to the House of Lords with the leave of the CMAC or of
the House of Lords itself.
(g) The Armed Forces Act 1996
Under the 1996 Act, the role of the Convening Officer ceases to
exist and its functions are split among three different bodies: the
higher authority, the prosecuting authority and court administration
officers (Schedule I to the 1996 Act).
The higher authority, a senior officer, decides whether any case
referred to him by the accused's commanding officer should be dealt
with summarily, referred to the new prosecuting authority, or dropped.
Once the higher authority has taken this decision, he has no further
involvement in the case. The prosecuting authority is the legal branch
of the relevant Service. Following the higher authority's decision to
refer a case to it, the prosecuting authority has an absolute
discretion, applying similar criteria to those applied in civilian
cases by the Crown Prosecution Service, to decide whether or not to
prosecute, what type of court-martial would be appropriate and what
charges should be brought. It also conducts the prosecution (the
1996 Act, Schedule I, Part II).
Under the new legislation, court administration officers have
been appointed in each Service. They are independent of both the higher
and the prosecuting authorities and are responsible for making the
arrangements for courts-martial, including arranging venue and timing,
ensuring that a judge advocate and any court officials required are
available, securing the attendance of witnesses and selection of
members. Officers under the command of the higher authority will not
be selected as members of the court-martial (the 1996 Act, Schedule I,
Part III).
Each court-martial now includes a judge advocate as a member. His
advice on points of law is binding on the court and he has a vote on
sentence (but not on conviction). The casting vote, if needed, rests
with the president of the court-martial, who gives reasons for the
sentence in open court. The Judge Advocate General no longer provides
general legal advice to the Secretary of State for Defence (the
1996 Act, Schedule I, Part III).
Findings by a court-martial are no longer subject to confirmation
or revision by a Confirming Officer (whose role is abolished). A
reviewing authority has been established in each Service to conduct a
single review of each case. Reasons are now given for the decision of
the reviewing authority. As part of this process, post-trial advice
received by the reviewing authority from a judge advocate (different
from the one who officiated at the court-martial) is disclosed to the
accused. A right of appeal against sentence to the CMAC has been added
to the existing right of appeal against conviction (the 1996 Act,
section 17 and Schedule V).
COMPLAINTS
1. The applicant complains under Article 6 para. 1 of the Convention
that he was denied a fair and public hearing by an independent and
impartial tribunal.
In these respects, he points out, inter alia, that he was not
given the option of a trial in a civil court; that the father of the
alleged victim was an officer in the air force; that the President of
the court-martial convinced the other members of the court-martial of
his guilt; that the evidence against him was insufficient and his
sentence was excessive; that the court-martial failed to have due
regard to the provocation of the applicant by the alleged victim; that
the Army Board failed to give proper consideration to his petition;
that he could not appeal against sentence alone to the Courts-Martial
Appeal Court; that his legal representation was ineffective; and that
he lost the possibility of voluntary redundancy after his court-
martial.
In addition, he complains about the manner in which the defending
officer is appointed, invoking Article 6 para. 3 of the Convention.
2. He also complains about the length of the court-martial
proceedings.
3. Finally, he complains under Article 5 para. 4 of the Convention
that he could not have his sentence reviewed by the civilian courts
because there is no right to appeal against sentence only to the
Courts-Martial Appeal Court.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 29 September 1995 and was
registered on 24 November 1995.
On 27 November 1996 the Commission decided to communicate the
application and request the parties observations on the admissibility
and merits of the applicant's complaints relating to the independence,
impartiality and fairness aspects of Article 6 para. 1 of the
Convention. By letter dated 26 February 1997 the Government stated that
they had no observations on the admissibility of the application.
THE LAW
1. The applicant complains under Article 6 para. 1 (Art. 6-1) that
he did not have a fair hearing by an independent and impartial
tribunal. In addition, he complains about the manner in which the
defending officer was appointed and he invokes Article 6 para. 3
(Art. 6-3) of the Convention. Article 6 (Art. 6) of the Convention,
insofar as relevant, reads as follows:
"1. In the determination ... of any criminal charge against him,
everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal ...
3. Everyone charged with a criminal offence has the following
minimum rights: ...
c. to defend himself in person or through legal assistance
of his own choosing or, if he has not sufficient means to
pay for legal assistance, to be given it free when the
interests of justice so require; ..."
The Government have no observations as regards the admissibility
of the applicant's complaints.
The Commission would first note the applicant's submission
relating to his inability to claim voluntary redundancy after the
court-martial proceedings. Since this is a matter which relates to the
damage to the applicant as a result of the court-martial proceedings
against him, the Commission notes that this submission falls to be
considered, if at all, in the context of Article 50 or Article 32
para. 2 (Art. 50, 32-2) of the Convention.
As to the independence and impartiality of the court-martial, the
Commission recalls the judgments of the Court in the Findlay and Coyne
cases (Eur. Court HR, Findlay v. the United Kingdom judgment of
25 February 1997, Reports 1997-I, no. 30 and Coyne v. the United
Kingdom judgment of 24 September 1997, to be published in
Reports 1997-V, no. 49). The Court in those cases found that an army
general court-martial and an air force district court-martial,
respectively did not constitute independent or impartial tribunals. The
Commission notes that, in the present case, a district army court-
martial was convened pursuant to the Army Act 1955 to try the applicant
and that he was found guilty of the civilian criminal offence of
assault occasioning actual bodily harm contrary to the Offences Against
the Person Act 1861.
As to the fairness of the proceedings, the Commission also
recalls its finding in its Report in the Findlay case that a court-
martial found to lack independence and impartiality could not guarantee
a fair trial (Eur. Court HR, Findlay v. the United Kingdom judgment,
loc. cit., Comm. Report, para. 108).
The Commission further recalls that the guarantees contained in
paragraph 3 of Article 6 (Art. 6-3) are specific aspects of the general
concept of fairness guaranteed by paragraph 1 of this Article (see, for
example, Eur. Court HR, Unterpertinger v. Austria judgment of
24 November 1986, Series A no. 110, p. 14, para. 29). Accordingly, and
in the circumstances of the present case, the Commission will consider
the applicant's complaint under Article 6 para. 3 (Art. 6-3) as regards
the manner of appointment of his defending officer in the context of
its consideration of the fairness aspect of Article 6 para. 1
(Art. 6-1) of the Convention.
In such circumstances, the Commission considers that the
applicant's complaints as regards the independence and impartiality of
the court-martial and as regards the fairness of the court-martial
proceedings raise complex and serious issues under Article 6 para. 1
(Art. 6-1) 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 the
complaints inadmissible has been established.
2. The applicant also complains about the length of the court-
martial proceedings and the Commission has considered this complaint
under the "reasonable time" requirement of Article 6 para. 1 (Art. 6-1)
of the Convention.
The Commission notes the nature of the charge of which the
applicant was convicted (assault occasioning actual bodily harm
contrary to the Offences Against the Person Act 1861) and the sentence
imposed, which included six months detention. Accordingly, the
Commission considers that the proceedings involved the determination
of a "criminal charge" within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention and that Article 6 applies to the
applicant's complaint as regards the length of the court-martial
proceedings (Eur. Court HR, Garyfallou AEBE v. Greece judgment of
24 September 1997, Reports 1997-V, no. 49, paras. 32-33, with further
references).
The Commission considers that the proceedings can be taken to
have begun in early January 1993 when the applicant was first
questioned by the military police, this being the date on which, on the
basis of the facts as submitted, the applicant's situation was
substantially affected by the proceedings against him (Eur. Court HR,
Deweer v. Belgium judgment of 27 February 1980, Series A no. 35, p. 24,
para. 46). It further considers that those proceedings ended with the
denial of leave to appeal by the full Courts-Martial Appeal Court on
2 May 1995. Accordingly, the proceedings lasted approximately 2 years
and four months.
The Commission recalls that the reasonableness of the length of
proceedings must be assessed in the light of the particular
circumstances of the case and with the help of the following criteria:
the complexity of the case, the conduct of the parties and the conduct
of the authorities dealing with the case (Eur. Court HR, Kemmache v.
France judgment of 27 November 1991, Series A no. 218, p. 27.
para. 60).
The Commission considers that the applicant has submitted
relatively little detail as regards the conduct of the proceedings. The
Commission notes that the applicant's court-martial did not take place
until almost a year after he was interviewed by the military police
(January 1993). However, the Commission observes that during this
period the charges against the applicant were investigated, the
applicant was charged in April 1993, the court-martial was convened in
October 1993 and that court-martial took place in December 1993.
Although there was a three and a half month delay between the
promulgation of the conviction and sentence (19 January 1994) and the
Army Board's decision (9 May 1994), the applicant does not indicate
when he lodged his petition to the latter body. Similarly, and while
the single judge did not subsequently hand down his decision until
February 1995, the applicant has not indicated when he made the
relevant application and, in any event, one of his requests before the
single judge was for an extension of time to make his leave to appeal
application. As for the proceedings before the Courts-Martial Appeal
Court, that court handed down a detailed judgment within two and half
months (2 May 1995) of the decision of the single judge.
Having regard to all the circumstances, to the overall length of
the proceedings and to the two petitions and two applications for leave
to appeal, all of which were considered subsequent to the court-martial
itself, the Commission considers that the applicant has not
demonstrated that the proceedings as a whole exceeded the "reasonable
time" requirement in Article 6 para. 1 (Art. 6-1) of the Convention.
Accordingly, the Commission considers that this complaint of the
applicant is manifestly ill-founded and inadmissible pursuant to
Article 27 para. 2 (Art. 27-2) of the Convention.
3. The applicant further complains that, since the Courts-Martial
Appeal Court could not consider an appeal against sentence alone, he
had no right to have his sentence reviewed by a court outside of the
military system. He invokes Article 5 para. 4 (Art. 5-4) of the
Convention.
Having regard to the fixed nature of the applicant's sentence
(namely, that it is not subject to change with the passage of time),
the guarantees of Article 5 para. 4 (Art. 5-4) were satisfied by the
original trial and subsequent proceedings and that Article confers no
additional right to challenge the lawfulness of the continuing
detention (see, for example, Eur. Court HR, Wynne v. the United Kingdom
judgment of 18 July 1994, Series A no. 294-A, p. 12 para. 36). Insofar
as the applicant submits that those original proceedings did not comply
with the Convention, this matter has been considered above in relation
to the complaint under 6 para. 1 of the Convention.
Accordingly, the Commission finds the complaint of the applicant
under Article 5 para. 4 (Art. 5-4) of the Convention to be inadmissible
as manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES ADMISSIBLE, without prejudging the merits, the
applicant's complaints in relation to the independence and
impartiality of the court-martial and in respect of the fairness
of the court-martial proceedings; and
DECLARES INADMISSIBLE the remainder of the application.
M.F. BUQUICCHIO M.P. PELLONPÄÄ
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy