FOURTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 57067/00
by Mark Andrew GRIEVES
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 4 June 2002 as a Chamber composed of
MrM. Pellonpää, President,
SirNicolas Bratza,
MrA. Pastor Ridruejo,
MrJ. Makarczyk,
MrsV. Strážnická,
MrR. Maruste,
MrS. Pavlovschi, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application registered on 9 May 2000,
Having deliberated, decides as follows:
THE FACTS
The applicant is a British citizen born in 1968 and living in Plymouth, Devon. He is represented before the Court by Mr. Gilbert Blades, a solicitor practising in Lincoln.
A. The circumstances of the case
The applicant was, at the material time, a serving member of the Royal Navy.
On 18 June 1998, the applicant was convicted by a Royal Navy court martial, consisting of five naval officers and a judge advocate, of unlawfully and maliciously wounding with intent to do grievous bodily harm. He was represented before the court by a Royal Navy barrister, Lieutenant Commander Gray. He was sentenced to three years’ imprisonment, dismissed from the service, reduced in rank and ordered to pay GBP 700 compensation. On 29 September 1998, the Admiralty Board confirmed the court martial’s finding and sentence. In his advice to the Admiralty Board, the Judge Advocate of the Fleet commented that the trial was “well conducted by all concerned” and that the main directions of law in the judge advocate’s summing up were “impeccable” and that any errors were, in any event, favourable to the applicant.
In dismissing the applicant’s application for leave to appeal against conviction and sentence on 30 June 1999, Mrs Justice Hallett commented that:
“ ... as far as your proposed appeal against conviction is concerned, I note that it is based on [Lieutenant Commander Gray’s] “flagrantly incompetent advocacy”. I find it astonishing that such an assertion can be made in the light of such little evidence and your letter dated 12 July 1998 [to a commanding officer] in which you praised all the efforts made on your behalf by Lt Cdr Gray.
You were plainly consulted on each tactical decision that was taken and there were good reasons for them. Your advocate’s task was not made any easier by your changing your account at various stages.
There is nothing on the material before me to indicate you received anything other than a fair trial, properly conducted by all concerned.”
The applicant’s renewed application for leave to appeal to the full Courts-Martial Appeal Court was dismissed on 20 January 2000.
B. Relevant domestic law and practice
The Armed Forces Act 1996 (the “1996 Act”) came into effect on 1 April 1997, amending inter alia the Naval Discipline Act 1957 (the “1957 Act”).
Under the 1996 Act, the initial decision whether or not to bring a prosecution is taken by the Higher Authority, who is a senior officer who must decide whether any case referred to him by the accused’s commanding officer should be dealt with summarily, referred to the prosecuting authority, or dropped. Once the Higher Authority has taken this decision, he has no further involvement in the case.
The role of prosecutor is performed by the Royal Navy Prosecuting Authority (the “Prosecuting Authority”). Following the Higher Authority’s decision to refer a case to it the Prosecuting Authority has absolute discretion, applying similar criteria as those applied in civilian cases by the Crown Prosecution Service, to decide whether or not to prosecute and to determine precisely what charges should be brought. The Prosecuting Authority conducts the prosecution (1996 Act, Schedule I, Part II), which is brought on behalf of the Attorney General.
Court administration officers, who are independent of both the Higher Authority and the Prosecuting Authority, are responsible for making the arrangements for courts martial, including arranging venue and timing, ensuring that a judge advocate and any court officials required will be available, securing the attendance of witnesses and selecting members of the court. Its officers are appointed by the Defence Council. Before commencement of the court martial hearing, the power to dissolve it is vested in the responsible court administration officer.
All Royal Navy courts martial consist of a Permanent President of Courts Martial, not less than four nor more than eight serving military officers of at least three years’ military experience and a judge advocate. The officers appointed must not belong to the same ship or naval establishment as the accused (section 54 of the 1957 Act as amended by the 1996 Act).
The post of Permanent President of Courts Martial (“Permanent President”) was first created in 1941. The post was suspended in 2000, around the time of a ruling by Assistant Judge Advocate Pearson in an army court martial case called McKendry that the appointment of Permanent Presidents meant that courts martial did not have the necessary impartiality and independence for the purposes of Article 6 of the Convention. Permanent Presidents were selected from the ranks of serving officers of suitable age and rank. Legal qualifications or experience were not required for selection. Appointment was usually expected to be for a period in excess of three years and was almost without exception the officer’s last posting before his retirement. Senior Royal Navy command had power to terminate the appointment of a Permanent President, but this never happened in practice.
Judge advocates are appointed by the Lord Chancellor and are civilians who must have at least five years’ experience as an advocate or barrister. A judge advocate’s rulings on points of law are binding on the court and he or she delivers a summing up in open court before the court martial retires to consider its verdict. Once the court martial hearing has commenced, the power to dissolve it is vested in the judge advocate. The judge advocate has a vote on sentence, but not on verdict. Under the 1996 Act, the Judge Advocate General lost his previous role of providing general legal advice to the Secretary of State for Defence.
Each member of a court martial has 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 Naval Discipline Act 1957 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.”
Decisions on verdict and sentence are reached by majority vote (section 62 of the 1957 Act). The casting vote on sentence, if needed, rests with the President of the court martial, who also gives reasons for the sentence in open court. The members of the court are required to speak, and at the close of deliberations to vote on verdict and sentence, in ascending order of seniority.
All guilty verdicts reached, and sentences imposed by, a court martial must be reviewed by the “reviewing authority” within prescribed time limits. The “reviewing authority” for the purposes of Royal Navy courts martial is the Admiralty Board (sections 70 and 71 of the 1957 Act). Post-trial advice received by the reviewing authority from a judge advocate (different from the one who sat at the court-martial) is disclosed to the accused, who has the right to present a petition to the authority. The reviewing authority may quash any guilty verdict and associated sentence or make any finding of guilt which could have been made by the court martial, and may substitute any sentence (not being, in the authority’s opinion, more severe than that originally passed) which was open to the court martial. The reviewing authority gives a reasoned decision and its verdict and sentence are treated for all purposes as if they were reached or imposed by the court martial.
There is a right of appeal against both conviction and sentence to the Courts-Martial Appeal Court (a civilian court of appeal) (section 8 of the Courts-Martial (Appeals) Act 1968). An appeal will be allowed where the court finds that the conviction is unsafe, but dismissed in all other cases. The court has power, inter alia, to call for the production of evidence and witnesses whether or not produced at the court martial (section 28 of the Courts-Martial (Appeals) Act 1968).
COMPLAINTS
The applicant complains that he has been denied a fair and public hearing by an independent and impartial tribunal established by law, contrary to Article 6 § 1 of the Convention.
The applicant complains also about the conduct of the officer appointed to represent him at the court martial and about the judge advocate’s decision not to exclude certain evidence from the proceedings.
THE LAW
1. Specific complaint
The applicant invokes Article 6 § 1 of the Convention, which provides (as relevant):
“In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law.”
The applicant complains about the conduct of the officer appointed to represent him before the court martial alleging, inter alia, that the officer concerned failed properly to present his case and failed to challenge inadmissible evidence lodged before the court by the prosecution. He also complains about the judge advocate’s failure to exclude the evidence concerned.
The Court notes that both the reviewing authority, following advice received from the Judge Advocate of the Fleet, and more particularly the Courts-Martial Appeal Court considered the applicants’ specific complaints and dismissed them on the basis that the proceedings had been properly conducted by all concerned. The Court sees no reason to disagree with those findings and considers that the applicant’s specific complaints are unsubstantiated.
It follows that the specific complaints made by the applicant are manifestly ill-founded and must be rejected in accordance with Article 35 § 4 of the Convention.
2. General complaints
The applicant complains that he has been denied a fair and public hearing by an independent and impartial tribunal established by law, contrary to Article 6 § 1 of the Convention.
The Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3(b) of the Rules of Court, to give notice of it to the respondent Government.
For these reasons, the Court unanimously
Decides to adjourn the examination of the the applicant’s general complaint that he has been denied a fair and public hearing by an independent and impartial tribunal established by law;
Declares inadmissible the remainder of the application.
Michael O’BoyleMatti Pellonpää
RegistrarPresident
Full & Egal Universal Law Academy