Grieves v. the United Kingdom [GC]

Information Note on the Court’s case-law 59

December 2003

Grieves v. the United Kingdom [GC] - 57067/00

Judgment 16.12.2003 [GC]

Article 6

Criminal proceedings

Article 6-1

Impartial tribunal

Independent tribunal

Independence and impartiality of Navy court martial: violation

(Extracts from press release)

Facts: At the relevant time, the applicant, Mark Anthony Grieves, was a serving member of the Royal Navy. On 18 June 1998 Mr Grieves was convicted by a Royal Navy Court Martial of unlawfully and maliciously wounding with intent to do grievous bodily harm, contrary to the Offences Against the Person Act 1861. He was sentenced to three years’ imprisonment, reduced in rank, dismissed from the service and ordered to pay 700 pounds sterling in compensation. The court martial comprised a president (a Royal Navy captain), four naval officers and a judge advocate, who was a serving naval officer and barrister working as the naval legal advisor to FLEET (the command responsible for the organisation and deployment of all ships at sea). On 29 September 1998 the Admiralty Board, having received advice from the Judge Advocate of the Fleet (JAF), upheld the court martial’s finding and sentence. The applicant appealed unsuccessfully to the CMAC.

Law: Article 6 § 1

(a) Admissibility: The Court considered that, given the nature of the charges against the applicant, together with the nature and severity of the penalty imposed (three years’ imprisonment), the court martial proceedings constituted the determination of a criminal charge against the applicant. Finding that the applicant’ complaint raised questions of law which were sufficiently serious that their determination should depend on an examination of the merits, the Court declared the complaint admissible.

(b) Merits: The Court noted that Royal Navy courts martial differed in certain important respects from the Air Force system. In contrast to the other services, the naval prosecuting authority could appoint a prosecutor for a court martial from a list of uniformed naval barristers outside his own staff. However, the prosecutor in the applicant’s case came from the staff of the prosecuting authority, as in the Cooper case. The Naval Court Administration Officer was a civilian, not a serving officer as the Air Force Court Administration Officer. The involvement of a civilian in a service court martial process plainly contributed to its independence and impartiality. It was significant that the post of PPCM did not exist in the naval system; the president of a Royal Navy court martial being appointed for each court martial as it was convened. The Court considered that the absence of a full-time PPCM, with no hope of promotion and no effective fear of removal and who was not subject to report on his judicial decision-making, deprived Royal Navy courts martial of an important contribution to the independence of an otherwise ad hoc tribunal. Most importantly, the Court noted that, although Royal Navy judge advocates fulfilled the same pivotal role in courts martial as their Air Force equivalents, they were serving naval officers, who, when not sitting in a court martial, carried out regular naval duties. The Air Force judge advocate was a civilian working full-time for the Judge Advocate General, himself a civilian.  In addition, Royal Navy judge advocates were appointed by a naval officer, the Chief Naval Judge Advocate (CNJA). The Court noted with some concern certain reporting practices regarding Royal Navy judge advocates which applied at the relevant time. For example, the JAF’s report on a judge advocate’s judicial performance could be forwarded to the judge advocate’s service reporting officer. The Court considered that, even if the judge advocate appointed to the applicant’s court martial could be seen as independent despite these reporting practices, the position of naval judge advocates could not be considered a strong guarantee of the independence of a Royal Navy court martial. Accordingly, the lack of a civilian in the pivotal role of judge advocate deprived a Royal Navy court martial of one of the most significant guarantees of independence enjoyed by other services’ courts martial. The Court further considered the briefing notes sent to members of Royal Navy courts martial to be substantially less detailed and significantly less clear than the RAF briefing notes. They were consequently less effective in safeguarding the independence of the ordinary members of courts martial from inappropriate outside influence. The Court accordingly found that the distinctions between the Air Force court martial system assessed in the Cooper case and the Royal Navy court martial system at issue in the Grieves case were such that Mr Grieves’s misgivings about the independence and impartiality of his court martial, convened under the 1996 Act, could be considered to be objectively justified.

Conclusion: violation (unanimously).

Article 41 – The Court made an award in respect of costs and expenses.

(See also Cooper v. the United Kingdom [GC], no. 48843/99, 16 December 2003, Information Note 59)

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This summary by the Registry does not bind the Court.

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