THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 49771/99
by Stephen Mark JORDAN
against the United Kingdom
The European Court of Human Rights, sitting on 25 September 2001 as a Chamber composed of
MrJ.-P. Costa, President,
MrW. Fuhrmann,
MrP. Kūris,
MrsF. Tulkens,
MrK. Jungwiert,
SirNicolas Bratza,
MrK. Traja, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application introduced on 8 June 1999 and registered on 22 July 1999,
Having deliberated, decides as follows:
THE FACTS
The applicant, Stephen Mark Jordan, is a United Kingdom national, born in 1971 and living in Wolverhampton. He is represented before the Court by Mr J. Mackenzie, a lawyer practising in London. The facts of the case, as submitted by the parties, may be summarised as follows.
A. The court-martial proceedings
On 3 March 1995 the Special Investigations Branch of the military police (“SIB”) began investigating charges against the applicant, a soldier in the British Army, in relation to the misuse of travel warrants. He was due to be interviewed on 28 March 1995 but went missing from his unit. On 20 April 1995 he was arrested by the civilian police and returned to his unit. His commanding officer dealt with the charge of absence without leave summarily and sentenced him to, inter alia, 28 days’ imprisonment. The applicant served 23 days.
On 27 May 1995 the applicant was due for release, but his detention was continued because of the SIB investigation. On 1 and 2 June 1995 he was interviewed by the SIB. On 15 June 1995 he instructed his current legal representative.
On 16 June 1995 he was brought before his commanding officer and a charge sheet recording one charge under the Theft Act 1968 (fraudulently claiming motor mileage allowance – “MMA”) was read out to him. On 29 August 1995 a further charge sheet was read to him which included eight additional and similar charges (obtaining property by deception contrary to the Theft Act 1968). He was remanded in custody for trial by court-martial.
On 15 September 1995 he applied for legal aid under the army legal aid scheme. The legal aid certificate was sent by the Director of Army Legal Services to the applicant’s unit on 6 October 1995 and the legal aid certificate was received by the applicant on 6 November 1995.
On 16 October 1995 the applicant requested his military medical records. The records were delivered in four batches between mid-November and 1 December 1995. The court-martial hearing had been fixed for 20 November 1995 but the date was vacated given the delay in receiving the medical records. The court-martial hearing was then fixed for 5 February 1996 as the applicant indicated that he would not be ready before that date. In the meantime, on 11 December 1995, the applicant was released to open arrest. On 5 February the hearing was adjourned at his request to allow him to undergo a brain scan. Hearing dates of 18 and 25 March 1996 were then proposed but neither the applicant nor the prosecution could make the first date and the applicant could not make the second date. The applicant referred on both occasions to his continuing medical tests for epilepsy.
Given the applicant’s allegations of epilepsy, the prosecution also wished him to attend its own medical experts. The applicant does not dispute that he was uncooperative in arranging appointments and that he left certain appointments prior to the examination being completed, even when he had been escorted by colleagues to the consulting rooms. He explains that he was not told that the prosecution had wished to enquire about the existence of his epilepsy. He had also been advised by his legal representative not to attend appointments that had not first been negotiated and certain initial appointments had not been notified to that representative. His appointment of 2 September was postponed by him to 30 September 1996 and that of 25 November was postponed by him to 11 December 1996.
In December 1996 the prosecution received its medical report. It found that there was sufficient doubt about the applicant’s epilepsy to allow it to proceed with charges of fraudulent misuse of railway warrants (“RW”). On 27 March 1997 the applicant was so charged. However, since the new court-martial system was coming into force on 1 April 1997 (pursuant to the Armed Forces Act 1996), it was decided to proceed against the applicant afresh under that new system. On 30 July 1997 the applicant’s representative was notified that the new Army Prosecuting Authority (“APA”) was ready for trial. By 31 July 1997 the APA had referred all the charges for trial by court-martial. On 27 November 1997 the applicant was formally referred for trial by general court-martial. The hearing had been already fixed for 1 December 1997, a date found to be suitable for the parties, including the 56 witnesses the applicant envisaged calling.
On 19 August 1997 the Army Criminal Legal Aid Authority (“ACLAA”) wrote to the applicant’s representative referring to his letter of April 1996, confirming that legal aid on the MMA charges - which had been initially granted to the applicant’s first representatives – had been transferred to the applicant’s present representatives and apologising for the delay in that respect. That letter also referred to the additional RW charges and indicated that the ACLAA was currently organising legal aid for those matters also. On 12 September 1997 the applicant’s unit completed the legal aid form for the RW charges, the form was signed by the applicant (by which he certified that all the information was true) and his unit submitted the form to the ACLAA.
On 6 October 1997 the ACLAA requested him to submit certain information omitted from the legal aid form including his capital, his savings, details of the award of damages in his favour in October 1996 (see below) and copies of his bank statements for the last 12 months. He was asked to respond quickly in order to allow the processing of the legal aid application with the minimum of delay. The applicant maintains that he replied by letter dated 8 October 1997. The copy of that letter submitted states that his application was correct, that he had not kept his bank statements and that if they were required it would take a week or so to obtain duplicates from the bank. The ACLAA claims to have no record of having received that letter and that it became aware, on 21 November 1997, that the applicant claimed to have sent a letter.
On 24 November 1997 the applicant wrote to the ACLAA repeating what he had said in his letter of 8 October 1997, still not enclosing his bank statements. On 26 November 1997 the applicant’s commanding officer wrote to ACLAA enclosing the applicant’s letters of 8 October and 24 November 1997 and copies of his bank statements which the applicant had collected from his bank under military escort. It was also noted that the applicant had declined to give details of the damages awarded to him in October 1996 but that he had confirmed that he had bought a house for 50,000 pounds sterling (“GBP”) in January 1997.
On 1 December 1997 the applicant obtained an adjournment of the hearing because legal aid for the RW charges had been granted on that day.
On 12 January 1998 the applicant wrote to the APA arguing that that his referral for court-martial was, inter alia, an abuse of process given the delay to date. A preparatory hearing fixed for 27 March 1998 was adjourned because the applicant did not appear and because the Court-Martial Administration Officer (“CMAO”) had not summoned the military witnesses. These matters were heard on 22-26 June 1998. In finding that the delay did not amount to an abuse of process, the Judge Advocate stated that:
“... there has been ... considerable delay in this matter. This has been delay which is just not acceptable. ... In my view much of this delay was caused by an unsuitable bureaucratic pre-trial process. With the benefit of hindsight, some of those responsible for working that process could have made things better by applying a greater degree of urgency whilst operating those procedures; ... One has in this situation a great deal of sympathy with the defence, although I am bound to say that the fault lies principally with the system rather than with the individuals responsible for working that slow bureaucratic process. ... there has been no significant contribution by the defence to this long and unjustifiable delay.”
The CMAO then offered a court-martial hearing date in September 1998 but the applicant applied on 14 July 1998 for leave to apply for judicial review of the decision of the Judge Advocate. On 4 November 1998 the High Court directed that the judicial review application be made on notice to the respondent party and it was listed for hearing (for a maximum of two hours) on 26 March 1999. On that date the applicant’s solicitor indicated for the first time that the judicial review hearing would probably take two days and the hearing was adjourned. It was re-fixed for 27 July 1999 when it was dismissed.
The court-martial hearing was then re-fixed for 15 November 1999 but the applicant did not appear. It was then rescheduled for 22 November 1999. At his court-martial on 22 November 1999, the applicant pleaded guilty to obtaining property by deception to the value of GBP 15,000 and he was sentenced to 14 months’ imprisonment, of which he was to serve a further 7 months. The Judge Advocate commented that the delay in the case had been inordinate. He noted that, while the early delays had been avoidable, the delays since 1998 were attributable to the acts of the defence which had used every delaying tactic.
By letter dated 17 December 1999, the applicant was informed of the reviewing authority’s decision to reduce his sentence to three months’ imprisonment. On 15 January 2000 a single judge of the Courts-Martial Appeal Court rejected his application for leave to appeal to that court.
B. Other proceedings
In November 1995 the applicant commenced habeas corpus proceedings in the High Court requesting his release on the grounds, inter alia, that he had not been given a formal hearing at which he was informed of the case against him and afforded an opportunity to present his own case for release. In their pleadings, the army authorities admitted that due to an “administrative oversight” the applicant had not been charged until 16 June 1995. Although the army authorities initially accepted that his detention between 27 May and 16 June 1995 was therefore unlawful, they argued later in the pleadings that that detention was, despite the oversight, lawful. On 11 December 1995, further to the army authorities’ undertaking to the High Court, the applicant was released to open arrest. In mid-1996 he was released from open arrest and sent on leave.
On 12 February 1996 the applicant instituted further proceedings in the High Court for compensation for, inter alia, unlawful detention between 27 May and 11 December 1995. The Ministry of Defence accepted his detention between 27 May and 16 June 1995 had been unlawful. Various other admissions were made by the army authorities as regards the failure properly to complete certain reports regarding his ongoing detention but it was denied that such omissions rendered his detention unlawful. The case was settled on 21 October 1996 when the applicant was paid a sum of money and his costs.
THE LAW
The applicant’s complaint relates to the length of the court-martial proceedings against him, which began on 1 June 1995 and ended on 15 January 2000 with the decision of the single judge of the Courts-Martial Appeal Court. They therefore lasted 4 years, 7 months and 15 days.
According to the applicant, the length of the proceedings is in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention. The Government reject the allegation.
The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant’s conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.
For these reasons, the Court unanimously
Declares the application admissible, without prejudging the merits of the case.
S. DolléJ.-P.Costa
RegistrarPresident
Full & Egal Universal Law Academy