EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 22107/93
Alexander Findlay
against
the United Kingdom
REPORT OF THE COMMISSION
(adopted on 5 September 1995)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-16). . . . . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5-12) . . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 13-16). . . . . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 17-74) . . . . . . . . . . . . . . . . . . . . .4
A. The particular circumstances of the case
(paras. 17-48). . . . . . . . . . . . . . . . . . .4
B. Relevant domestic law and practice
(paras. 49-74). . . . . . . . . . . . . . . . . . .9
III. OPINION OF THE COMMISSION
(paras. 75-113). . . . . . . . . . . . . . . . . . . . 14
A. Complaints declared admissible
(para. 75). . . . . . . . . . . . . . . . . . . . 14
B. Points at issue
(para. 76). . . . . . . . . . . . . . . . . . . . 14
C. Article 6 para. 1 of the Convention
(paras. 77-111) . . . . . . . . . . . . . . . . . 14
1. Applicability
(paras. 78-79) . . . . . . . . . . . . . . . 14
2. Independence and impartiality
(paras. 80-108). . . . . . . . . . . . . . . 15
CONCLUSION
(para. 109). . . . . . . . . . . . . . . . . 20
3. Remaining points at issue
(para. 110). . . . . . . . . . . . . . . . . 20
CONCLUSION
(para. 111). . . . . . . . . . . . . . . . . 21
D. Recapitulation
(paras. 112-113). . . . . . . . . . . . . . . . . 21
APPENDIX: DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION. . . . . . . . . 22
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is a British citizen, born in 1961 and resident in
Windsor. He was represented before the Commission by John Mackenzie,
a solicitor practising in Middlesex.
3. The application is directed against the United Kingdom. The
respondent Government were represented by Mr. John Rankin, Agent,
Foreign and Commonwealth Office.
4. The case mainly concerns the independence and impartiality of a
court-martial and of subsequent reviewing authorities and the fairness
of the proceedings before those bodies. The application also concerns
the reasonableness of the decisions reached and the sentencing options
available. The applicant invokes Article 6 para. 1 of the Convention.
B. The proceedings
5. The application was introduced on 28 May 1993 and registered on
22 June 1993.
6. On 1 December 1993 the Commission (First Chamber) decided,
pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give
notice of the application to the respondent Government and to invite
the parties to submit written observations on the admissibility and
merits of the applicant's complaints under Article 6 para. 1 of the
Convention.
7. The Government's observations were submitted on 19 April 1994
after two extensions of the time-limit fixed for this purpose. The
applicant replied on 3 June 1994.
8. Having transferred the matter to the Plenary Commission, on
7 December 1994 the Commission decided to hold an oral hearing. The
hearing was held on 23 February 1995. The Government were represented
by Mr. John Rankin, Agent, Foreign and Commonwealth Office,
Mr. P. Havers and Mr. N. May, both Counsel, and Ms. J. Murnane, Major-
General A. Rodgers and Air Vice Marshal G. Carlton, as advisers. The
applicant was represented by Mr. J. Mackenzie and Mr. G. Blade,
Solicitors.
9. On 23 February 1995 the Commission declared the application
admissible.
10. The text of the Commission's decision on admissibility was sent
to the parties on 8 March 1995 and they were invited to submit such
further information or observations on the merits as they wished. On
13 April 1995 the Commission granted the applicant legal aid for
representation in his case.
11. On 13 March and 10 May 1995 the applicant submitted further
observations on the merits of the application. The Government submitted
observations on 24 April 1995 and some additional factual observations
by letter dated 26 May 1995.
12. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
13. The present Report has been drawn up by the Plenary Commission
in pursuance of Article 31 of the Convention and after deliberations
and votes, the following members being present: (present at the
hearing)
MM. S. TRECHSEL, President
H. DANELIUS
C.A. NØRGAARD
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
M.A. NOWICKI
I. CABRAL BARRETO
N. BRATZA
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
14. The text of this Report was adopted on 5 September 1995 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
15. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
The Commission's decision on the admissibility of the application
is attached hereto as an Appendix.
16. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
Background facts
17. The applicant joined the British Army in 1980 when he became a
member of the Scots Guards. His service was due to terminate in or
around October or November 1992 when he would have received a
Resettlement Grant and, at the age of 60, an army pension.
18. In 1982 the applicant took part in the Falklands campaign and he
was wounded. The applicant suffered extreme stress as a result of his
experiences.
19. In 1987 the applicant sustained an injury during training for
service in Northern Ireland. He fell from a rope and broke his arm and
severely damaged his back. His back injury affected his performance
during training and he suffered from depression as a result.
20. In or about 1990 the applicant, who had become a Lance Sergeant,
was serving with his regiment in Northern Ireland. On 29 July 1990,
after a heavy drinking session, he held members of his own unit at
pistol point and threatened to kill himself and certain of his
colleagues. He fired two shots which were not aimed at anyone and
subsequently surrendered the pistol. The applicant was then arrested.
Pre-hearing
21. On 31 July 1990 an army psychiatrist ("Doctor A") examined the
applicant and stated that the applicant was responsible for his actions
at the time of the incident. However, it was a combination of a number
of stresses (including his back injury and posting in Northern Ireland)
together with the applicant's heavy drinking on the day that led to the
"almost inevitable" event. Doctor A recommended "awarding the minimum
appropriate punishment" to the applicant.
22. The applicant was charged by the Convening Officer with eight
offences (six civilian and two military), pursuant to the Army Act
1955. The Convening Officer decided that the applicant should be tried
by general court-martial.
23. In order to establish that the applicant was fit to stand trial,
he was examined, at the request of the army, by another army
psychiatrist ("Doctor B") who was a civilian consultant psychiatrist
with the Ministry of Defence since 1980. Her report, produced in
January 1991, confirmed that the applicant was fit to plead and knew
what he was doing at the time of the incident. However, his chronic
back problem (which meant he was frustrated and depressed by not being
fit for duty in his Northern Ireland posting) together with "his
previous combat stresses and a very high level of alcohol ... combined
to produce this dangerous behaviour."
24. In March 1991 Doctor B produced another report, at the request
of the army, confirming that while it was clear what were the stresses
on the applicant, the nature of his reaction to them on the day in
question was to be explained by the applicant's experiences in the
Falklands war. She confirmed that similar incidents occurred in those
who had previously experienced Post Traumatic Stress Disorder ("PTSD")
and such incidents seemed to be a late feature of PTSD. Doctor B did
not clearly say that the applicant suffered from PTSD. She confirmed
that the consumption of alcohol on the relevant day was due to the
applicant's condition and not a cause of it.
25. The Prosecuting Officer assigned to the case informed the
applicant's representative that Doctor B was unwilling to attend the
court-martial. That officer, by letter dated 24 June 1991, also
requested the applicant's representative to indicate which doctors he
might require to attend and noted, in particular, that Doctor B's
attendance might be required.
26. In July 1991 the applicant brought a civil action against the
Secretary of State for Defence on the basis of the negligence of the
army medical authorities in failing to diagnose and treat his PTSD and
also (but forming a lesser part of this action) in respect of his back
injury received during training in 1987.
27. In October 1991 a third psychiatrist ("Doctor C") produced a
report which clearly confirmed that the applicant was suffering from
PTSD as a result of the Falklands conflict and that the combination of
his frustration and depression due to his chronic back problem, his
posting in Northern Ireland and the consumption of alcohol triggered
the incident. In addition, Doctor C was of the opinion that the
applicant was psychotic, out of touch with reality and did not know
what he was doing at the time of the incident.
28. By order dated 31 October 1991 the Convening Officer convened a
general court-martial. The Convening Officer was a Major General and
was General Officer Commanding, London District ("GOC").
29. The court-martial comprised a President and four other members.
All were subordinate in rank to the Convening Officer. In addition, the
President was on the Convening Officer's staff in London District and
the remaining members served in units stationed within London District
which the Convening Officer commanded. None of the members was legally
trained:
- The President was a Colonel in the Territorial Army ("TA") and
part-time TA Adviser HQ, London District. He was appointed by
name by the Convening Officer and was not a permanent president.
- Member B was a Lieutenant Colonel (Royal Anglian) and his diary
was administered by the London District. He was appointed by name
by the Convening Officer and was a permanent president sitting
in the capacity of ordinary member.
- Member C was a Captain (2nd Battalion Coldstream Guards)
stationed in the London District. His reporting chain was to his
Officer Commanding, his Commanding Officer and the Brigade
Commander, after which his report could, in exceptional
circumstances, go to the GOC. He was a member of a footguard unit
and the Convening Officer, as GOC, was responsible for all
footguard units. He was appointed to the court-martial by his
commanding officer.
- Member D was a Major (2nd Battalion Grenadier Guards) stationed
in London District. The Convening Officer, as GOC, was this
member's second superior reporting officer. He too was a member
of a footguard unit. He was appointed to the court-martial by his
commanding officer.
- Member E was a Captain (Postal and Courier Department, Royal
Engineers (Women's Royal Army Corps)) appointed by her commanding
officer. The Postal and Courier Depot is under the direct command
of the Ministry of Defence and is administered by the London
District.
30. The assistant prosecuting and defending officers were both
officers from the 2nd Scots Guards stationed in the London District and
had the same reporting chain as Member C.
31. The Judge Advocate ("J.A.") was a barrister and assistant Judge
Advocate with the Judge Advocate General's office.
32. On 2 November 1991, though not fully cognisant of the opinion of
Doctor B at that time, the applicant's representatives made a written
request to the prosecuting authorities to ensure the appearance of
Doctor B at the court-martial. On 5 November 1991, the prosecutor
issued a witness summons requiring Doctor B's attendance.
The court-martial hearing
33. On 11 November 1991 the applicant appeared before the general
court-martial. Doctor B did not appear in answer to the witness
summons. The applicant was told that Doctor B would not be available
and he claims that it was for this reason that he pleaded guilty to
seven of the charges on the charge sheet (2, 3, 4, 5, 6, 7 and 8).
Charges 2, 4 and 5 were charges of common assault (civilian offences),
charges 3 and 6 were charges of conduct to the prejudice of good order
and military discipline (a military offence) and charges 7 and 8 were
charges of threatening to kill (a civilian offence). The applicant's
representative did not request an adjournment (in light of Doctor B's
absence) nor object to any of the members of the court-martial hearing
the case.
34. The applicant was also presented with a second charge sheet which
contained two charges of a disciplinary nature relating to the
consumption and storage of alcohol. He pleaded guilty to the former and
not guilty to the latter charge. The Prosecuting Officer did not offer
any evidence on the charges in respect of which the applicant pleaded
not guilty and, having indicated the Convening Officer's concurrence
before the court-martial, did not pursue these remaining charges.
35. At the beginning of the hearing the applicant put before the
court-martial the above described reports prepared by Doctors A, B and
C. Doctor C was called by the applicant to give evidence in relation
to PTSD. He confirmed in direct evidence his view that the applicant
suffered from PTSD, that the effect on the applicant of the Falklands
war was the main reason for his behaviour, that the applicant was not
responsible for what he was doing at the time of the incident and that
the applicant was in need of counselling for what was a well recognised
disorder. During cross-examination Doctor C stated that this was the
first time he had dealt with battle-related PTSD.
36. The applicant's representative urged the court-martial that, in
view of the fact that the applicant was suffering from PTSD at the time
of the incident and of the little likelihood of his re-offending, the
applicant should be allowed to complete the few remaining months of his
service and leave the army with his pension intact and a minimal
endorsement on his record.
37. The applicant claims that during the trial the J.A. was hostile
to him. In the first place, the Prosecuting Officer introduced, under
rule 71(3)(a) of the Army Rules of Procedure (1972), mitigating
evidence as to the applicant's record since the incident. Evidence was
given to the effect that the applicant's conduct in the year since the
offence had been described by his company commander as impeccable and
that his commanding officer wished to retain the services of the
applicant in his battalion. The J.A. interrupted and commented as
follows:
"That is the view of the Commanding Officer, who is aware, is he,
that the accused has been found guilty by this court of two
offences of making a threat to kill members of his unit, and the
Commanding Officer wishes to retain him in the Battalion does
he?".
38. It is the applicant's recollection that the J.A. snapped a pencil
in irritation while speaking as above.
39. Secondly, Doctor C gave evidence to the effect that the
applicant, while suffering from PTSD, was not suffering from any other
form of mental illness. The J.A. interrupted this evidence to ask for
a pause to make a note of this point.
40. The applicant was sentenced to two years' imprisonment, to
reduction to the rank of guardsman and to dismissal from the army. No
reasons were given for the level of the sentence. The applicant thereby
suffered a reduction in his pension entitlements.
Post-hearing
41. The applicant petitioned the Confirming Officer (who was the same
person as the Convening Officer) for a reduction in sentence. The
Confirming Officer received advice from the Judge Advocate General's
office and, on 16 December 1991, the applicant was informed that the
sentence had been upheld.
42. The applicant, who had been under close arrest since the morning
before the court-martial hearing, was removed on 18 November 1991 to
a Military Correctional Training Centre (a military prison) and was
transferred from there to a civilian prison on 21 December 1991.
43. The applicant petitioned the first Reviewing Authority (the
Deputy Director General of Personal Services as delegate of the Army
Board) concerning his sentence. That officer, who was not legally
qualified, also obtained advice from the Judge Advocate General's
office. By letter dated 22 January 1992, the applicant was informed
that this petition had been rejected.
44. The applicant then petitioned the second Reviewing Authority, the
Director General of Personal Services (also not legally qualified) as
delegate of the Army Board, in relation to his sentence. This petition
was rejected on 10 March 1992.
45. The applicant was not initially informed of the identity of the
Confirming Officer or of the Reviewing Authorities, though the
Government submit that he subsequently requested the identity of one
Reviewing Authority and was given this information. Neither was he
informed of the fact or nature of the advice obtained from the Judge
Advocate General's office nor was he given reasons for the decisions
confirming his sentence and rejecting his petitions.
46. By application dated 10 March 1992, the applicant applied to the
Divisional Court of the High Court for leave to challenge, by judicial
review, the validity of the findings of the court-martial. In this
application, the applicant challenged his sentence as being excessive,
alleged that the proceedings were contrary to the rules of natural
justice and further alleged that the J.A. was hostile to him during the
court-martial. On 14 December 1992 the Divisional Court refused leave
on the basis that the conduct of the court-martial had been entirely
in accordance with the Army Act 1955 and rejected the applicant's
submissions as to the attitude of the J.A. In particular, the
Divisional Court found that the J.A.'s interventions were appropriate
and noted that the applicant's representative had accepted at the
court-martial hearing that the intervention by the J.A. during Doctor
C's evidence was correct and appropriate.
47. A report dated 16 January 1994 was subsequently prepared by
Doctor B for the purposes of the civil action against the Secretary of
State confirming her previous opinion, though now clearly labelling the
effect of the Falklands conflict on the applicant as PTSD.
48. In March 1994 the applicant's civil action was settled by the
Secretary of State for Defence who paid the applicant £100,000 together
with the applicant's costs without an admission of liability. The
settlement did not differentiate between the claim in respect of PTSD
and the back injury. The applicant claims that this was an effective
acknowledgement by the Secretary of State for Defence that the
applicant suffered from PTSD on the day of the incident because, prior
to the settlement, the applicant was examined by a psychiatrist acting
for the Secretary of State, who offered the applicant treatment for
PTSD.
B. Relevant domestic law and practice
General
49. The law and procedures in respect of courts-martial for army
personnel are contained mainly in the Army Act 1955 ("the 1955 Act"),
in the Rules of Procedure (Army) 1972 ("the 1972 Rules") and the
Queen's Regulations (1975).
50. Under section 70(1) of the 1955 Act, "civilian" offences are also
offences under the 1955 Act. In such cases, where the charges are
triable by the civilian courts and by court-martial, it is a matter of
agreement that the final decision on jurisdiction lies with the
civilian authorities but that the military authorities are only
required to report certain cases which are likely to be retained by the
civilian authorities (for example, if the relevant incident had a
civilian involvement). Therefore, even if the charges involve civilian
and army offences, in many cases army personnel can be tried by the
army authorities on such charges under the 1955 Act.
51. Depending on their gravity, charges against army law can be tried
by district, field or general court-martial. A general court-martial
must consist of a President (normally a brigadier or colonel in the
army) and at least four other officers in the army. A Judge Advocate
("the J.A.") must also be appointed to a general court-martial, though
not as a member. A general court-martial will be convened by a
Convening Officer who is normally a major-general in the army. The
President of the court-martial must be appointed by name by the
Convening Officer, and the remaining members may be appointed by name
or by the Convening Officer requiring a particular commanding officer
to nominate an officer of the required rank.
52. Each member of the court-martial must 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."
The Convening Officer
53. The Convening Officer must be a "Qualified Officer" (meaning he
must be at least a field officer or of a corresponding rank) who is in
command of a body of the regular forces or of the command within which
the person to be tried is serving. The Qualified Officer can delegate
this power to an officer under his command but not to an officer below
the rank of colonel.
54. The Convening Officer is not responsible for the decision to
charge the accused nor for the investigation of those charges. However,
once an accused's commanding officer has decided that the accused
should be tried by court-martial, the Convening Officer assumes
responsibility for the case.
55. He is empowered, inter alia, to direct upon what charges the
accused is to be tried and to decide the wording of those charges. The
Convening Officer decides on the type of court-martial required and
convenes a court-martial for each case. The convening order specifies,
inter alia, the date, place and time of the trial, the name of the
President and the details of the other members. The Convening Officer
ensures that a J.A. is appointed by the Judge Advocate General's
office, or failing such appointment, appoints the J.A. himself. He also
appoints, or directs a commanding officer to appoint, the Prosecuting
Officer from, in serious cases, Army Legal Services who is
professionally answerable to the Director of Army Legal Services.
56. The Convening Officer sends an abstract of the evidence to the
Prosecuting Officer and to the J.A., and may indicate to the
Prosecuting Officer the passages of the evidence which may be
inadmissible. He procures the attendance at trial of all witnesses to
be called for the prosecution. When charges are withdrawn the Convening
Officer's consent is normally obtained though it is not necessary in
all cases and when a plea to a lesser charge is made by the accused it
cannot be accepted without the consent of the Convening Officer.
57. The Convening Officer must also ensure that the accused has a
proper opportunity to prepare his defence and proper contact with,
inter alia, the defence witnesses. The Convening Officer must see that
the accused is informed that he may require the attendance of defence
witnesses and must order the attendance of witnesses "reasonably"
requested by the defence. No other authority has this power. Witnesses
not subject to military law may be summoned to attend the trial by
order of the Convening Officer. The accused must also be informed by
the Convening Officer if the prosecutor is legally qualified so that
the accused has the opportunity to obtain his own legal representation.
58. The court-martial can be dissolved by the Convening Officer
either before or during the trial when required in the interests of the
administration of justice (section 95 of the 1955 Act). In addition
Queen's Regulations (para. 6.129) state that a Convening Officer can
also comment on the "proceedings of a court-martial which require
confirmation" and that those remarks will not form part of the record
of the proceedings, will normally be communicated in a separate minute
to the members of the court but in an exceptional case "where a more
public instruction is required in the interests of discipline", the
Convening Officer's comments may be made known in the orders of the
command.
59. The Convening Officer also usually acts as Confirming Officer.
Judge Advocate General and Judge Advocates
60. The current Judge Advocate General was appointed to the office
by the Queen in February 1991 for five years. He is answerable to the
Queen and is removable from office by the Queen for inability or
misbehaviour.
61. A number of assistant and deputy J.A.'s are appointed to the
Judge Advocate General's office by the Lord Chancellor and they must
have at least seven and five years experience respectively as an
advocate or barrister. The J.A. does not swear an oath upon appointment
and is normally exempted from doing so at an individual court-martial.
The J.A. is removable only by the Lord Chancellor for inability or
misbehaviour but is responsible for the proper discharge of his
functions to the Judge Advocate General. The Judge Advocate General and
the J.A.'s receive, out of money provided by parliament, such
remuneration as the Lord Chancellor may determine.
62. The Judge Advocate General advises the Secretary of State for
Defence on all matters touching and concerning the office of Judge
Advocate General and this advice includes advice on military law and
the procedures and conduct of the court-martial system. He also advises
the confirming and reviewing authorities on post-trial matters and in
this respect he may, if necessary, give some general information as to
the purpose and function of the review, the lawfulness of a particular
finding or sentence, the range of sentences appropriate to a particular
offence based on precedent, as to how the Crown Court might consider
a similar offence and as to specific service aspects of the offence.
He is also responsible for superintending the administration of army
law and retaining the records of courts-martial. He is a legal adviser
to the Ministry of Defence and the Government state that it is not
inaccurate to describe the relationship as one of lawyer and client.
63. A deputy or assistant J.A. is appointed to a court-martial by the
Judge Advocate General's office or by the Convening Officer and, once
so assigned, the J.A. must provide on request an opinion on any point
of law or procedure to the prosecution and the accused either outside
of or during the court-martial. He advises on all questions of law and
procedure that arise during the hearing and the court-martial must
accept his advice unless it has weighty reasons for not doing so. On
a number of specified matters, on which he is consulted by the court-
martial, the opinion of the J.A. must be followed. The J.A. is also
responsible for advising the court-martial as to any defect in its
constitution or in the charge sheet.
64. At the opening of the trial it is the practice for the J.A. to
satisfy himself that none of the members of the court-martial either
know the accused or have heard anything about the charges. At the close
of the trial, the J.A. sums up the relevant law and evidence. If during
the court-martial's deliberations on the charges (at which the J.A.
cannot be present) further advice is required, then the court-martial
must receive that advice in open court. The J.A. can, however, advise
the court-martial in private on the general principles governing the
approach to sentencing. The J.A. is not a member of the court-martial
and has no vote in the decision on the charges or on the sentence.
65. Finally, the J.A. must ensure (in conjunction with the President)
that the accused does not suffer any disadvantage during the hearing.
Where an accused pleads guilty the J.A. should explain to the accused
the nature of the charges, the resulting difference in procedures and
the full import of his plea. If the accused or his representatives
subsequently make submissions that might imply that the accused is not
guilty of the charges, the J.A. has a duty to satisfy the court-martial
that the accused and his representative are not under any
misapprehension as to the plea of guilty, and that the accused's clear
admission has addressed all elements of all charges.
The court-martial hearing
66. An objection may be made at the start of a hearing to a member
of the court-martial. Objections must be to individual members and not
to the court-martial as a whole. Such an objection is considered in
closed court (rule 27 of the 1972 Rules).
67. When the applicant pleads guilty, the Prosecuting Officer
outlines the facts and must then, pursuant to Rule 71(3)(a) of the 1972
Rules, put in evidence any circumstance which may have made the accused
more susceptible to the commission of the offence by way of mitigation.
The defence then makes a plea in mitigation and can call witnesses in
mitigation of punishment pursuant to rule 71(5)(a) of the 1972 Rules.
The members of the court-martial retire (with the J.A.) to consider the
sentence, decide, return and announce the sentence. There is no
provision for the giving of reasons by the court-martial for its
decision.
Sentencing
68. Certain types of sentences are not available to a court-martial
even if the charges relate to civilian offences. A court-martial
cannot, inter alia, suspend a prison sentence, issue a probation order
or sentence to community service.
69. The level of sentencing power depends on the type of court-
martial that is convened. A district court-martial is more restricted
in terms of sentencing than a general court-martial. The maximum
sentence laid down by the 1955 Act and civilian law, for the charges
on the first charge sheet in respect of which the applicant pleaded
guilty, are as follows:
- Charges 2, 4 and 5: six months' imprisonment or a fine
- Charge 7: 10 years' imprisonment
- Charges 3 and 6: imprisonment not exceeding two years.
70. The court-martial must award one global sentence in relation to
all the offences in respect of which the accused is found guilty. The
opinions of members on sentence are given orally in closed court and
these opinions shall be given in ascending order of seniority (rule 74
of the 1972 Rules). A decision can be reached by a majority.
Confirmation and Post-hearing reviews
71. The court-martial's findings are not treated as a finding of
guilt or on sentence until confirmed by the Confirming Officer. The
confirmation procedure is automatic but if a petition is presented
prior to the decision of the Confirming officer it will be considered.
Prior to confirmation the Confirming Officer must consult the Judge
Advocate General's office for advice. A different J.A. gives this
advice when the Confirming Officer is dealing with a sentence of a
general court-martial. The Confirming Officer can withhold
confirmation, substitute a sentence, remit in whole or in part any
punishment, commute a punishment for one or more lesser punishments and
postpone the carrying out of the sentence.
72. Once the Confirming Officer has confirmed the sentence, the
defendant can petition the Reviewing Authorities. A petitioner can have
more than one review. The relevant Reviewing Authorities were the
Queen, the Army Board as delegate of the Defence Council, the Deputy
Director and the Director General of Personal Services (Army) at the
Ministry of Defence as delegate of the Army Board and any officer
superior in command to the Confirming Officer. The Reviewing
Authorities may consult the Judge Advocate General's office for advice;
they have 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.
73. A petitioner is not informed, when making the relevant petition,
of the identity of the Confirming Officer or of the Reviewing
Authorities. No statutory or formalised procedures are laid down for
the conduct of the post-hearing reviews and no reasons are given for
decisions delivered subsequent to the post-hearing reviews. Neither the
fact that advice has been received nor the nature of the advice
received from the Judge Advocate General's office by these bodies is
disclosed to a petitioner.
74. A Courts-Martial Appeal Court (which is made up of civilian
judges) can hear appeals from a court-martial but there is no provision
for such an appeal against sentence when the accused pleads guilty.
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
75. The Commission has declared admissible the applicant's complaints
that the court-martial, the Confirming Officer and the Reviewing
Authorities lacked independence and impartiality, that the proceedings
before those bodies were unfair, that their decisions were unreasonable
and that the sentencing options available were limited.
B. Points at issue
76. Accordingly, the points at issue in the present case are whether
there has been a violation of Article 6 para. 1 (Art. 6-1) of the
Convention:
- as regards the independence and impartiality of the court-
martial, the Confirming Officer and the Reviewing Authorities;
and
- as regards the fairness of the proceedings before the above-
mentioned bodies as well as the reasonableness of the decisions
of and the sentencing options available to those bodies.
C. Article 6 para. 1 (Art. 6-1) of the Convention
77. Article 6 para. 1 (Art. 6-1) 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
established by law... ."
1. Applicability
78. The Government argue that Article 6 para. 1 (Art. 6-1) does not
apply to the post-hearing proceedings as these proceedings are best
understood as pleas in mitigation rather than appeals forming part of
the overall procedure which must satisfy Article 6 (Art. 6) of the
Convention.
79. The Commission recalls that the determination of a criminal
charge within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention includes, not only the determination of the guilt or
innocence of the accused, but also the determination of his sentence
(cf. No. 8289/78, Dec. 5.3.80, D.R. 18 p. 166). The Commission also
notes that the Confirming Officer and the Reviewing Authorities had
submissions and advice to consider in relation to the appropriate
sentence to be awarded and had the power to significantly change that
sentence. Accordingly, the Commission is satisfied that these
proceedings involved the determination of the applicant's sentence and,
as such, the determination of a criminal charge against him.
2. Independence and impartiality
80. The applicant submits that the organisation and internal
structure of the court-martial and the post-hearing reviewing
authorities meant that they were not, or were not seen to be,
independent or impartial.
81. In this respect, the applicant refers, inter alia, to the
extensive powers of the Convening Officer before, during and after a
court-martial hearing. He claims that there is a strong inference that
the Convening Officer is the prosecuting authority and submits that the
members of the court-martial were military personnel subordinate to and
otherwise closely related to the Convening Officer. He contends that
there are few guarantees against outside pressures because, inter alia,
the appointment of the members is for a specific court-martial only,
the members return to their military duties after the court-martial,
the Judge Advocate ("J.A.") is closely linked to the Ministry of
Defence and the J.A. has, in any event, no vote in decisions of the
court-martial. The Confirming Officer is normally the same person as
the Convening Officer and the Reviewing Authorities were members of the
armed forces with no legal training who were advised by the Judge
Advocate General's office.
82. The applicant also submits that, in addition to the above
structural problems, his defence of Post Traumatic Stress Disorder
raised a military issue of some importance and sensitivity which the
military authorities were unwilling to accept.
83. The applicant further submits that the J.A.'s hostility to him
during the court-martial hearing was indicative of his lack of
impartiality.
84. The Government, in the first place, submit that it should be
borne in mind that the special disciplinary requirements flowing from
the vital duties of the armed forces require a separate code of
military law and, in turn, a separate military judicial system.
85. Against this background, the Government refer to the many
guarantees in place to guard against outside pressures on the members
of the court-martial. The members must take an oath and none are
subject to instruction from, or accountable to, a higher authority as
regards their functions in the court-martial. None of the members can
be removed on an individual basis (except after a successful challenge
at the commencement of a hearing) and the entire court-martial can be
dissolved only in the interests of the administration of justice by the
Convening Officer, which is an enhancement of the protections
available. The decisions of the court-martial are by a majority and the
members do not disclose the nature of their votes to third parties. The
convening of the court-martial on an ad hoc basis is a guarantee
against outside influence because the members have no interest in
renewing a term of office.
86. The Government also refer to many structural and procedural
elements which indicate the independent functioning of the court-
martial and of the post-hearing reviewing authorities. In this respect
the Government contend, inter alia, that the prosecuting authority was
Army Legal Services from where the Prosecuting Officer was appointed
and not the Convening Officer. The Convening Officer assumes
responsibility for the setting up of the court-martial and his work in
this respect is largely administrative in nature. As regards the make-
up of the court-martial, the Government point out that the members were
chosen from diverse regiments, only two were appointed by name by the
Convening Officer and none was immediately subordinate to or had a
direct prior personal relationship with the Convening Officer. The
applicant, though he could have, did not object to the constitution of
the court-martial.
87. The Government also emphasise the crucial role played by the
J.A., a civilian judicial officer independent of the armed forces, in
ensuring a fair trial and the role of the Judge Advocate General's
office in advising at the confirming and reviewing stages.
88. Furthermore, the Government do not accept that the applicant has
demonstrated any subjective bias on the part of the J.A. and point out
that the Divisional Court did not accept this either. Moreover, the
Government dispute that the applicant's defence of Post Traumatic
Stress Disorder raised an issue of army policy and reject any assertion
by the applicant that this matter affected the proceedings as
unfounded, untrue and an attack on the integrity of the members of the
court-martial.
89. As regards the applicant's complaint as to the impartiality of
the members of the court-martial, the J.A., the Confirming Officer and
the Reviewing Authorities, the Commission recalls that for the purposes
of Article 6 para. 1 (Art. 6-1) of the Convention the existence of
impartiality must be determined according to a subjective test, that
is on the basis of a personal conviction of a particular judge in a
given case, the personal impartiality of a judge being assumed until
there is proof to the contrary (Eur. Court H.R., Padovani judgment of
26 February 1993, Series A no. 257-B, p. 20, paras. 25-26).
90. In addition, an objective test must also be applied, that is
ascertaining whether sufficient guarantees exist to exclude any
legitimate doubt in this respect. It must be determined whether there
were ascertainable facts, particularly of internal organisation, which
might raise doubts as to impartiality. In this respect, even
appearances may be important: what is at stake is the confidence which
the court must inspire in the accused in criminal proceedings and what
is decisive is whether the applicant's fear as to a lack of
impartiality can be regarded as objectively justifiable (Eur. Court
H.R., De Cubber judgment of 26 October 1984, Series A no. 86, p. 14,
para. 26 and Padovani judgment, loc. cit., p. 20, paras. 25 and 27).
91. In the present case the Commission does not consider that the
applicant has demonstrated that the members of the court-martial, the
J.A., the Confirming Officer or the Reviewing Authorities were
personally or subjectively biased against him. In this respect, the
Commission notes that the Divisional Court rejected the allegations
made by the applicant about the conduct of the J.A. during the court-
martial hearing.
92. As to whether these bodies satisfy the objective test of
impartiality, the Commission recalls that this concept and that of
independence are frequently difficult to dissociate (Eur. Court H.R,
Holm judgment of 25 November 1993, Series A. no. 279-A, p. 14,
para. 30).
93. Furthermore, the Commission also recalls that in certain cases
the link between the concepts of independence and objective
impartiality are such that if a tribunal fails to offer the requisite
guarantees of independence it will not satisfy the test for objective
impartiality (Demicoli v. Malta, Comm. Rep. 15.3.90, para. 42, Eur.
Court H.R., Series A no. 210, p. 27). The Commission finds that such
a link exists in the present case, concerned as it is with the issue
of the structure and internal organisation of the court-martial system.
94. The Commission recalls the established criteria to which the Court
has regard in assessing the independence of tribunals, in particular
from the parties. These include, the manner of appointment of members,
the duration of their terms of office, the guarantees afforded by the
procedure against outside pressures and whether the body presents an
appearance of independence (see, for example, Eur. Court H.R. Le
Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A
no. 43, p. 24, para. 55 and Campbell and Fell judgment of 28 June 1984,
Series A no. 80, para. 78, p. 39-40).
95. Applying the above principles of assessment of independence to
the court-martial, the Commission has considered the questions of what
person or body constitutes the prosecuting authority and the
independence of the members of the court-martial from that authority.
This examination necessarily involves a consideration of the manner of
appointment of the members and the composition of the court-martial.
96. The applicant contends that there is a strong presumption that
the Convening Officer was the prosecuting authority. The Government
contend that since the Prosecuting Officer is appointed from Army Legal
Services and the Convening Officer's work is administrative in nature,
the prosecuting authority is Army Legal Services and not the Convening
Officer.
97. The Commission recalls that the Convening Officer is empowered
to direct upon what charges the accused is to be tried, to decide the
wording of those charges, to decide on the type of court-martial
required and to convene the court-martial. He appoints the members of
the court-martial and appoints, or directs a commanding officer to
appoint, the Prosecuting Officer. In the absence of the appointment of
a J.A. by the Judge Advocate General's office, the J.A. is appointed
by the Convening Officer. When sending an abstract of the evidence to
the Prosecuting Officer, the Convening Officer may indicate to the
Prosecuting Officer the passages of the evidence which may be
inadmissible. He procures the attendance at trial of all witnesses to
be called for the prosecution and those witnesses "reasonably"
requested by the defence.
98. Moreover, during the trial, when charges are not to be pursued,
the Convening Officer's consent is normally obtained (as it was in the
present case) though it is not necessary in all cases. However, when
a plea to a lesser charge is made by the accused, it cannot be accepted
without the consent of the Convening Officer. Furthermore, the
Convening Officer can also comment on the "proceedings of a court-
martial which require confirmation" and those remarks will not normally
form part of the record of the proceedings and will usually be
communicated in a separate minute to the members of the court (Queen's
Regulations (para. 6.129)).
99. The Commission therefore considers that, whether or not the
Convening Officer is as a matter of fact the prosecuting authority, he
is seen to be central to the prosecution of a case by court-martial.
100. As to the independence of the members of the court-martial from
the Convening Officer, the Commission notes that there is some dispute
between the parties as to the relationship between those members and
the Convening Officer. However, the following is undisputed. All
members were serving army officers, subordinate in rank to the
Convening Officer. In addition, as members of units in London District,
all members were under the overall command of the Convening Officer in
his capacity as the General Officer Commanding, London District. Two
members were similarly under the overall command of the Convening
Officer by virtue of their membership of footguard units. Moreover, one
of the members had the Convening Officer as his second superior
reporting officer. Furthermore, the President was personally selected
by the Convening Officer and was on the Convening Officer's staff in
London.
101. Furthermore and as noted above, not only does the Convening
Officer also normally act as Confirming Officer, but the court-
martial's findings do not have any effect until confirmed by the
Confirming Officer (see para. 71 above). Even assuming that in these
circumstances the court-martial, rather than the Confirming Officer,
is to be properly regarded as the decision making body, this dual role
of the Convening Officer gives further cause to doubt the independence
of the court-martial from the prosecuting authority.
102. In this respect, the safeguard most strongly relied upon by the
Government is the presence during the court-martial of the J.A. whose
principal duty is to ensure that the accused has a fair trial and whose
role is described as being "crucial in the conduct of a court martial".
The applicant impugns the independence of both the Judge Advocate
General's office and the J.A. submitting that the Judge Advocate
General is a legal adviser to the Ministry of Defence and that, since
the J.A. is answerable to the Judge Advocate General, the J.A. is also
closely linked to the Ministry of Defence. The Government counter this
by arguing that the Judge Advocate General's office fulfils two
separate roles - a judicial role through the deputy and assistant
J.A.'s who assist the court-martial and an advisory role (creating a
lawyer/client relationship) with, inter alia, the Ministry of Defence.
103. However, the Commission considers that, even assuming that this
connection between the Judge Advocate General's office and the Ministry
of Defence does not raise a reasonable doubt as to the independence of
that office, and consequently, of the J.A., the involvement of the J.A.
in the court-martial is not sufficient to dispel any doubt as to the
court-martial's independence. In the first place, the J.A. is not a
member of the court-martial. Secondly, he does not take part in the
deliberations on the charges and any advice requested, as to the
general principles governing the approach to sentencing, is given in
private.
104. The Government argue that the absence of a civilian judicial
member does not of itself cast doubt on the independence of the court-
martial and refer to the Engel judgement (Eur. Court H.R., Engel
judgment of 6 June 1976, Series A no. 22) where the Netherlands Supreme
Military Court was considered by the Court to constitute an independent
tribunal. However, the Commission recalls that in the Engel case, the
tribunal in question had to include as members two civilian jurists who
were justices of the Supreme Court or the Court of Appeal and who were
appointed by the Crown (Engel judgment loc. cit., p. 13, para. 30). By
contrast the court-martial in the present case contained no judicial
members, no legally qualified members and no civilian members.
105. As to the guarantees against outside influence to which the
Government refer, the Commission is not satisfied that the requirement
to take the oath, important though it may be, could of itself dispel
doubts as to a lack of independence of the court-martial. While the
Government contend that the members are free from outside instruction,
the Commission notes the power of the Convening Officer, referred to
above, to comment on the proceedings of a court-martial and to
communicate such remarks to the members of the court-martial. The power
of the Convening Officer to dissolve the court-martial either before
or during the trial pursuant to section 95 of the Army Act 1955 is also
noted in this context. Furthermore, the submission by the Government
that the convening of courts-martial on an ad hoc basis enhances their
independence is inconsistent with the constant view of the Court that
an established term of office is an important guarantee of a tribunal's
independence (see, for example, Le Compte, Van Leuven and De Meyere,
loc. cit., p. 24-25, para . 57). In the present case, while one of the
members was a permanent president, the remaining members went back to
their ordinary military duties at the end of the applicant's court-
martial.
106. Accordingly, the Commission considers that the applicant's fears
that the court-martial lacked independence from the prosecuting
authority in the case could be regarded as objectively justified
particularly in view of the nature and extent of the Convening
Officer's roles, the composition of the court-martial and its ad hoc
convening. The Commission therefore finds that the court-martial did
not constitute an independent tribunal, or consequently an impartial
tribunal, within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention.
107. The question remains as to whether the defect in the court-
martial was remedied by a form of subsequent review by a judicial body
that afforded all the guarantees required by Article 6 para. 1 (Art. 6-
1) of the Convention. The Commission finds that, where (as in the
present case) the accused pleads guilty and cannot appeal to the
Courts-Martial Appeal Court, there is clearly no such remedy and the
Government do not suggest that there is (see paragraph 78 above). In
this context the Commission notes that the Confirming Officer was the
same person as the Convening Officer and that the Reviewing Authorities
were army officers (the second of whom was the superior of the first)
fulfilling their duties as delegates of the Army Board. The lack of
effectiveness of the post-hearing reviews is further emphasised by the
secrecy surrounding those reviews (including the fact and nature of the
advice given by the Judge Advocates General's office) and the
applicant's inability to participate in those reviews in any meaningful
manner.
108. The Commission is further of the opinion that since the court-
martial has been found to lack independence and impartiality, it could
not guarantee a fair trial to the applicant (cf. Mitap and Müftüoglu
v. Turkey, Comm. Report 8.12.94, para. 109).
CONCLUSION
109. The Commission concludes, unanimously, that there has been a
violation of Article 6 para. 1 (Art. 6-1) of the Convention in that the
applicant was not given a fair hearing by an independent and impartial
tribunal.
3. Remaining points at issue
110. The Commission notes the applicant's further specific complaints
as to the fairness of the court-martial proceedings and subsequent
reviews together with his additional complaints in relation to the
reasonableness of the decisions taken against him and in relation to
the sentencing options available. In view of the above conclusion, the
Commission finds that it is unnecessary to examine these complaints
save that the Commission observes that it is, in any event, outside its
competence to examine the reasonableness of the decisions taken against
the applicant.
CONCLUSION
111. The Commission concludes, unanimously, that it is unnecessary
to examine the further specific complaints made by the applicant as to
the fairness of the court-martial proceedings and subsequent reviews
or his additional complaints in relation to the reasonableness of the
decisions taken against him and in relation to the sentencing options
available.
D. Recapitulation
112. The Commission concludes, unanimously, that there has been a
violation of Article 6 para. 1 (Art. 6-1) of the Convention in that the
applicant was not given a fair hearing by an independent and impartial
tribunal (para. 109).
113. The Commission concludes, unanimously, that it is unnecessary to
examine the further specific complaints made by the applicant as to the
fairness of the court-martial proceedings and subsequent reviews or his
additional complaints in relation to the reasonableness of the
decisions taken against him and in relation to the sentencing options
available (para. 111).
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)
Full & Egal Universal Law Academy