Hood v. the United Kingdom [GC]

Information Note on the Court’s case-law No. 3

February 1999

Hood v. the United Kingdom [GC] - 27267/95

Judgment 18.2.1999

Article 6

Criminal proceedings

Article 6-1

Independent tribunal

Independence and impartiality of courts-martial: violation

Article 5

Article 5-3

Judge or other officer exercising judicial power

Impartiality of officer ordering detention of soldier: violation

Article 5-5

Compensation

Absence of enforceable right to compensation for unlawful detention: violation

Facts: The applicant, Mr David Hood, a British national, was born in 1970 and lives in the United Kingdom. In 1995 the applicant was tried and convicted under the Army Act 1955 by court-martial on a number of charges of a criminal nature. He had been detained prior to his court-martial following a decision by his Commanding Officer and the applicant unsuccessfully pursued domestic habeas corpus proceedings in that respect. Central to the court-martial system under the 1955 Act was the role of the “convening officer” who, inter alia, was responsible for convening the court-martial and appointing its members and the prosecuting officer. The convening officer had the final decision on the nature and detail of the charges to be brought, and a plea to a lesser charge could not be accepted from the accused without his or her consent. In certain circumstances, the convening officer could dissolve the court-martial either before or during the trial, and, since he or she usually also acted as confirming officer, the court-martial’s findings were not effective until confirmed by him or her. Under the 1955 Act (and the rules and regulations made thereunder), an accused’s Commanding Officer initially decided on the necessity for the pre-trial detention of an accused.

The applicant complained under Article 5 §§ 3 and 5 about his detention prior to his court-martial by a decision of his Commanding Officer and under Article 6 § 1 that the court-martial was not an independent or impartial tribunal.

Law: In regard to the applicant’s pre-trial detention, the Court recalled, inter alia, its previous judgment in the Huber case (Huber v. Switzerland judgment of 23 October 1990) where it found that, if the officer authorised by law to decide on the pre-trial detention of an accused is liable to intervene later in the proceedings as a representative of the prosecuting authority, then that officer could not be regarded as being independent of the parties at the time the decision on the accused’s pre-trial detention was taken. Having found that the Commanding Officer was liable to play a central role in the later prosecution of the case against the applicant, the Court concluded that the applicant’s misgivings about his Commanding Officer’s impartiality were objectively justified. It also considered that that officer’s responsibility for discipline and order in his command provided an additional reason to doubt his impartiality. Accordingly, the Court found a violation of Article 5 § 3 and, given the absence of a domestic enforceable right to compensation, it also concluded as to a violation of Article 5 § 5 of the Convention.

Conclusion: violation (unanimously) of Article 5 § 3 and 5 § 5.

As to the applicant’s court-martial, the Court recalled that in a previous judgment (Findlay v. the United Kingdom, 25 February 1997) it had found that a court-martial convened pursuant to the Army Act 1955 did not meet the requirements of independence and impartiality set by Article 6 § 1 of the Convention, in view in particular of the central part played in the prosecution by the convening officer, who was closely linked to the prosecuting authorities, was superior in rank to the members of the court-martial and had the power, albeit it in prescribed circumstances, to dissolve the court-martial and to refuse to confirm its decision. The Court could see no reason for distinguishing the present case from this earlier judgment, and therefore found a violation of Article 6 § 1.

Conclusion: violation (unanimously).

The Court awarded the applicant’s reasonable costs and expenses, Judge Zupančič dissenting on the question of an award of non-pecuniary damages to the applicant. His partly dissenting opinion is annexed to the judgment.

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This summary by the Registry does not bind the Court.

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