AS TO THE ADMISSIBILITY OF
Application No. 34822/97
by James John McDAID
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting in private on 22 October, the following members being present:
MMM.P. PELLONPÄÄ, President
N. BRATZA
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
MrsJ. LIDDY
MML. LOUCAIDES
B. MARXER
I. BÉKÉS
G. RESS
A. PERENIČ
C. BÎRSAN
M. VILA AMIGÓ
MrsM. HION
MrR. NICOLINI,
MrsM.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 5 February 1997 by James John McDAID against the United Kingdom, and registered on 11 February 1997 under file No. 34822/97;
Having regard to:
-the reports provided for in Rule 47 of the Rules of Procedure of the Commission;
- the observations submitted by the respondent Government on 1 May 1998;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen, born in 1965 and resident in Bedfordshire. He is represented before the Commission by Mr Gilbert Blades, a solicitor practising in Lincoln. The facts as submitted by the parties may be summarised as follows.
A.Particular circumstances of the case
On 18 September 1995 the applicant, who was a soldier in the British army serving in Germany, was charged (pursuant to section 70 of the Army Act 1955) with burglary contrary to the Theft Act 1968.
The Convening Officer, by order dated 29 April 1996, convened a district court-martial at Celle and on 7 May 1996 the court-martial found the applicant guilty. He was sentenced to dismissal from the army and to imprisonment for one year. The Judge Advocate then expressed concern to the court-martial about an incident involving the convening authority (putting pressure on the President of the court-martial to reverse a decision relating to the adjournment of the case) and he hoped that there would be no such interference in the future by that authority. The applicant's representative agreed that the ability of the court-martial to carry out its duties had not been affected.
On 14 June 1996 the applicant petitioned the Defence Council against conviction claiming that the evidence against him (including the identification, forensic and fingerprint evidence) was unreliable, unsatisfactory and inconclusive. By letter dated 9 August 1996 the applicant's representatives were informed of the decision (taken by the Army Board) to reject this petition.
The subsequent application to the single judge of the Courts-Martial Appeal Court for leave to appeal to that court against conviction (based on the same submissions as put to the Defence Council) was rejected on 11 November 1996, the single judge finding that the grounds of appeal were wholly unsatisfactory since they were unreasoned and undeveloped and noting that no jurisprudence had been opened to him upon which to base the grounds of appeal.
B.Relevant domestic law and practice
The principal law and procedures applicable are contained in the Army Act 1955 ("the 1955 Act") prior to its amendment by the Armed Forces Act 1996 ("the 1996 Act"), which latter Act came into force on 1 April 1997. Accordingly, and apart from section (g) below, the following is an outline of the pre-1996 Act law and practice.
(a)General
Many civilian offences were also offences under the 1955 Act (section 70(1)). Although the final decision on jurisdiction lay with the civilian authorities, army personnel who were accused of such offences were usually tried by the army authorities unless, for example, civilians had been in some way involved.
Depending on their gravity, charges under the 1955 Act could be tried by district, field or general court-martial. These were not standing courts: they came into existence in order to try a single offence or group of offences.
At the time of the events in question, a district court-martial consisted of a President, who could not be under the rank of Field Officer and was appointed by name by the Convening Officer, and at least two other officers, appointed either by name by the Convening Officer or, at the latter's request, by their commanding officer.
Each member of the court-martial had 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 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."
(b)The Convening Officer
Before the coming into force of the 1996 Act, the Convening Officer of a district court-martial had to be a Aqualified officer@ or an officer not below the rank of Colonel to whom the qualified officer had delegated his or her powers. To be a Aqualified officer@, an officer had to be not below the rank of Field Officer or corresponding rank and in command of a body of the regular forces or of the command within which the person to be tried was serving.
The Convening Officer assumed responsibility for every case to be tried by court-martial. He would decide upon the nature and detail of the charges to be brought and was responsible for convening the court-martial.
He would draw up a convening order, which would specify, inter alia, the date, place and time of the trial, the name of the President and the details of the other members, all of whom he could appoint. He ensured that a judge advocate was appointed by the Judge Advocate General's Office and, failing such appointment, could appoint one. He also appointed, or directed a commanding officer to appoint, the prosecuting officer.
Prior to the hearing, the Convening Officer was responsible for sending an abstract of the evidence to the prosecuting officer and to the judge advocate, and could indicate the passages which might be inadmissible. He procured the attendance at trial of all witnesses to be called for the prosecution. When charges were withdrawn, the Convening Officer's consent was normally obtained, although it was not necessary in all cases, and a plea to a lesser charge could not be accepted from the accused without it. He had also to ensure that the accused had a proper opportunity to prepare his defence, legal representation if required and the opportunity to contact the defence witnesses, and he was responsible for ordering the attendance at the hearing of all witnesses "reasonably requested" by the defence.
The Convening Officer could dissolve the court-martial either before or during the trial, when required in the interests of the administration of justice (section 95 of the 1955 Act). The Convening Officer usually also acted as Confirming Officer.
(c)The Judge Advocate General and judge advocates
The Judge Advocate General at the time of the events in question was appointed by the Queen in February 1991 for five years. He was answerable to the Queen and removable from office by her for inability or misbehaviour. He had the role of adviser to the Secretary of State for Defence on all matters touching and concerning the office of Judge Advocate General, including advice on army law and the procedures and conduct of the court-martial system. He was also responsible for advising the confirming and reviewing authorities following a court-martial.
Judge advocates are appointed to the Judge Advocate General's Office by the Lord Chancellor. They must have at least seven and five years experience respectively as an advocate or barrister.
At the time of the events in question, a judge advocate was appointed to each court-martial, either by the Judge Advocate General's Office or by the Convening Officer. He was responsible for advising the court-martial on all questions of law and procedure arising during the hearing and the court had to accept this advice unless there were weighty reasons for not doing so. In addition, in conjunction with the President, he was under a duty to ensure that the accused did not suffer any disadvantage during the hearing. At the close of the hearing, the judge advocate would sum up the relevant law and evidence.
Prior to the coming into force of the 1996 Act, the judge advocate did not take part in the court-martial's deliberations on conviction or acquittal, although he could advise it in private on general principles in relation to sentencing. He was not a member of the court-martial and had no vote in the decision on conviction or sentence.
(d)The court-martial hearing
At the commencement of the trial, the accused could object to individual members of the court-martial, such objection being considered in closed court.
The accused was then asked to plead in respect of the charge. If a plea of not guilty was entered the procedure was similar to that followed in the (civilian) Crown Court. After the prosecution had made its case, the defence could enter a submission of no case to answer. If this submission was not accepted, the judge advocate would advise the accused on the alternatives open to him and the defence would proceed with its case. Witnesses could be called for the prosecution and the defence and both sides could make a closing submission, the defence submission being the last. During the trial the court-martial could adjourn to consult the Convening Officer on points of law; the latter then had to take legal advice from the Judge Advocate General. The members of the court-martial retired (without the judge advocate) to deliberate on their findings, returned and pronounced those findings. Their votes and opinions were private and it was not disclosed whether the decision had been by a majority.
In the event of a conviction or a plea of guilty, the prosecuting officer put in evidence the defendant's service record and other evidence having a bearing on the sentence to be imposed. The defence made a plea in mitigation and could call witnesses in support. The members of the court-martial then retired (this time with the judge advocate) to consider the sentence.
The sentence was announced in open court. There was no provision for the giving of reasons by the court-martial for its decision on guilt or sentence.
(e)Confirmation and post-hearing reviews
Until the amendments introduced by the 1996 Act, the findings of a court-martial were not effective until confirmed by a "Confirming Officer". Prior to confirmation, the Confirming Officer used to seek the advice of the Judge Advocate General's Office, where a judge advocate different from the one who acted at the hearing would be appointed. The Confirming Officer could withhold confirmation or substitute, postpone or remit in whole or in part any sentence.
Once the sentence had been confirmed, the defendant could present a petition of appeal against conviction and/or sentence to the "reviewing authority", which was usually the Army Board in cases involving army personnel. It had 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.
A petitioner was not informed of the identity of the Confirming Officer or of the reviewing authority. No statutory or formalised procedures were laid down for the conduct of the post-hearing reviews and no reasons were given for decisions delivered subsequent to them. Neither the fact that advice had been received from the Judge Advocate General's Office nor the nature of that advice was disclosed.
(f)Courts-Martial Appeal Court
The Courts-Martial Appeal Court ("CMAC") was established by the Courts-Martial (Appeals) Act 1951 and was confirmed by the Courts-Martial (Appeals) Act 1968. The CMAC had the same status and, in essence, the same procedure as the (civilian) Court of Appeal, Criminal Division. Its judges included ordinary and ex officio judges of the Court of Appeal and judges of the High Court nominated by the Lord Chief Justice.
If an appeal petition was rejected by the Army Board an appellant could apply to a single judge of the CMAC (and, if necessary, also to the full court) for leave to appeal against conviction. There was no provision for an appeal against sentence only, although certain powers of revising sentences, pursuant to an appeal against conviction, were available to the CMAC.
The hearing of the substantive appeal did not constitute a full rehearing on all points of fact and law. However, the CMAC was empowered to consider any question required for the doing of justice and could order a retrial. It also had power, inter alia, to order the production of documents or exhibits connected with the proceedings, order the attendance of witnesses, receive evidence, obtain reports from members of the court-martial or from the judge advocate and order a reference of any question to a special commissioner for inquiry.
The CMAC had to allow an appeal against conviction if it considered that the finding of the court-martial was, in all the circumstances, unsafe or unsatisfactory or involved a wrong decision on a question of law. The appeal had also to be allowed if there was a material irregularity in the course of the trial. In any other case, the appeal had to be dismissed.
An appellant required the leave of the CMAC to attend any hearing in relation to the appeal. Leave would only be granted where the CMAC considered that his presence would serve some useful purpose or was necessary in the interests of justice. Legal aid for an appeal to the CMAC was available under certain conditions and the appellant could obtain an order for costs in his favour if his appeal was allowed.
A further appeal, on a point of law of general public importance, could be made to the House of Lords with the leave of the CMAC or of the House of Lords itself.
(g)The Armed Forces Act 1996
Under the 1996 Act, the role of the Convening Officer ceases to exist and its functions are split among three different bodies: the higher authority, the prosecuting authority and court administration officers (Schedule I to the 1996 Act).
The higher authority, a senior officer, decides whether any case referred to him by the accused's commanding officer should be dealt with summarily, referred to the new prosecuting authority, or dropped. Once the higher authority has taken this decision, he has no further involvement in the case. The prosecuting authority is the legal branch of the relevant Service. Following the higher authority's decision to refer a case to it, the prosecuting authority has an absolute discretion, applying similar criteria to those applied in civilian cases by the Crown Prosecution Service, to decide whether or not to prosecute, what type of court-martial would be appropriate and what charges should be brought. It also conducts the prosecution (the 1996 Act, Schedule I, Part II). Under the new legislation, court administration officers have been appointed in each Service. They are independent of both the higher and the prosecuting authorities and are responsible for making the arrangements for courts-martial, including arranging venue and timing, ensuring that a judge advocate and any court officials required are available, securing the attendance of witnesses and selection of members. Officers under the command of the higher authority will not be selected as members of the court-martial (the 1996 Act, Schedule I, Part III).
Each court-martial now includes a judge advocate as a member. His advice on points of law is binding on the court and he has a vote on sentence (but not on conviction). The casting vote, if needed, rests with the president of the court-martial, who gives reasons for the sentence in open court. The Judge Advocate General no longer provides general legal advice to the Secretary of State for Defence (the 1996 Act, Schedule I, Part III, sections 35, 41 and 43).
Findings by a court-martial are no longer subject to confirmation or revision by a Confirming Officer (whose role is abolished). A reviewing authority has been established in each Service to conduct a single review of each case. Reasons are now given for the decision of the reviewing authority. As part of this process, post-trial advice received by the reviewing authority from a judge advocate (different from the one who officiated at the court-martial) is disclosed to the accused. A right of appeal against sentence to the CMAC has been added to the existing right of appeal against conviction (the 1996 Act, section 17 and Schedule V).
COMPLAINTS
The applicant complains under Article 6 para. 1 of the Convention that he was denied a fair and public hearing by an independent and impartial tribunal established by law. He mainly contests the independence and impartiality of the court-martial and the fairness of the proceedings against him.
He also complains under Article 6 para. 1 about a specific interference by the Convening Officer in his proceedings and argues that the evidence against him was unreliable.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 5 February 1997 and registered on 11 February 1997.
On 3 December 1997 the Commission decided to communicate the application and to request the Government's observations on the admissibility and merits.
The Government's observations were submitted on 1s May 1998 after one extension of the time-limit fixed for that purpose and the applicant did not submit observations in reply. On 27 May 1998 the Commission decided to grant legal aid to the applicant.
THE LAW
The applicant complains under Article 6 para. 1 of the Convention that he was denied a fair and public hearing by an independent and impartial tribunal established by law.
Article 6 para. 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. ..."
Referring to the Coyne application before the Commission (Eur. Court HR, Coyne v. the United Kingdom judgment of 24 September 1997, Reports of Judgments and Decisions 1997-V, Comm. Report, 26.6.96), he mainly argues that the court-martial lacked independence and impartiality and that the proceedings against him were consequently unfair. The Government accept that this case raises issues similar to those in respect of which the Court found a violation of Article 6 para. 1 in the Findlay and Coyne judgments (Eur. Court HR, Findlay v. the United Kingdom judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I and Coyne v. the United Kingdom judgment, loc. cit.). Accordingly, the Government have no observations on the admissibility of these aspects of the application, although they reserve their position on the merits.
The applicant also complains about an interference by the Convening Officer in his proceedings and about the unreliability of the evidence against him. The Government accept that such an interference did take place but submit that the Judge Advocate and the President of the court-martial were satisfied that this did not affect the court-martial's ability to carry out its duties and that their view was accepted by the applicant's representative during the court-martial. The Government also argue that the assessment of evidence by a national court does not, of itself, raise a Convention issue.
The Commission recalls that the Court found, in the above-cited Findlay and Coyne cases, that an army general court-martial and an air force district court-martial, respectively did not constitute independent or impartial tribunals. The Commission also concluded in its Reports in those cases that a court-martial found to lack independence and impartiality could not, consequently, guarantee a fair trial (Eur. Court HR, Findlay v. the United Kingdom judgment, loc. cit., Comm. Report 5.9.95, para. 108 and Coyne v. the United ingdom judgment, loc. cit., Comm. Report 26.6.96, para. 80).
The Commission notes that, in the present case, an army district court-martial was convened pursuant to the Army Act 1955 to try the applicant. He was found guilty of theft contrary to the Theft Act 1968 and his sentence included imprisonment for one year.
Accordingly, the Commission considers that the applicant's complaints raise complex and serious issues under Article 6 para. 1 of the Convention which require determination on the merits. It follows that these complaints of the applicant cannot be dismissed as manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention. No other ground for declaring the complaints inadmissible has been established.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case.
M.F. BUQUICCHIO M.P. PELLONPÄÄ
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy