Information Note on the Court’s case-law 39
February 2002
Morris v. the United Kingdom - 38784/97
Judgment 26.2.2002 [Section III]
Article 6
Criminal proceedings
Article 6-1
Impartial tribunal
Independent tribunal
Independence and impartiality of court martial: violation
Article 6-3-c
Defence through legal assistance
Adequacy of representation by army officer at court martial: no violation
Facts: The applicant, a soldier, was arrested in 1996 after going absent without leave. He was remanded for trial and his Commanding Officer appointed an army captain with no legal training as the “defending officer”. The applicant applied for legal aid to enable him to be represented by a solicitor and was offered legal aid subject to a down-payment of £240. His solicitor requested that this condition be reconsidered but before a reply had been received the applicant declined the offer of legal aid and signed a document in which he stated that he wished to be represented only by the defending officer. The court martial took place in May 1997. The court was composed of a President (a Permanent President of Courts Martial, appointed in January 1997 and due to remain until his retirement in September 2001), two army captains and a legally qualified civilian judge advocate. The applicant pleaded guilty and was sentenced to nine months’ detention and dismissal from the army. He then instructed a solicitor, who lodged a petition with the “reviewing authority”. The petition was refused and a single judge of the Court Martial Appeal Court refused leave to appeal.
Law: Article 6 § 1 – This provision was clearly applicable, since the proceedings involved a determination of sentence following a plea of guilty; although the applicant was not charged with an ordinary criminal offence, in the light of the custodial sentence he received there was clearly a determination of a criminal charge. The concepts of independence and impartiality being closely linked, it was appropriate to consider them together. A military court can, in principle, constitute an independent and impartial tribunal, but only as long as sufficient safeguards are in place. In previous cases concerning courts martial in the United Kingdom concerns had centred around the multiple roles played by the “convening officer” and the changes introduced by the Armed Forces Act 1996 had gone a long way to meeting those concerns, the roles played by the “convening officer” and the “confirming officer” having been split, so that a separation now existed between prosecution and adjudication functions at a court martial. Moreover, advisory functions had also been reallocated and there were sufficient guarantees of independence in that respect. Consequently, the applicant’s general complaint about the relationship between senior army command and those involved in the court martial proceedings did not in itself give rise to a violation of Article 6. However, the question remained whether the members of the court martial collectively constituted an independent and impartial tribunal. As to the manner of their appointment, the fact that the head of the office responsible for the selection of the officers who sat on the court martial was appointed by the Defence Council did not in itself give rise to doubt as to the independence of the court, because he was in any event adequately separated from those fulfilling prosecution and adjudication roles. While he appeared to have had no fixed term of appointment and there were no clear guarantees against interference by senior army command, there was no evidence of such interference in the present case. Consequently, the manner in which the court martial was appointed did not give rise to any lack of independence. With regard to the terms of office of the members and the existence of safeguards against outside pressures, it was necessary to examine the positions of the President and the two army officers. As far as the President was concerned, the absence of a formal recognition of the irremovability of a judge does not in itself imply a lack of independence, provided it is recognised in fact and other guarantees are present. In the present case, the de facto security of tenure, together with the fact that the President had no apparent concerns as to future prospects in the army and was no longer subject to army reports, as well as his relative separation from the command structure, meant that he was in fact a significant guarantee of independence in an otherwise ad hoc tribunal. In contrast, the two army officers were not appointed for a fixed period but rather on an ad hoc basis, which made the need for safeguards against outside pressure all the more important. The presence of a legally qualified civilian judge advocate and of the Permanent President provided such guarantees, as did the rules on eligibility and the oath taken by members, but they were insufficient to exclude the risk of pressure being brought to bear on the two relatively junior officers, who had no legal training and remained subject to army discipline and reports. This was of particular importance in a case directly involving a breach of military discipline. Finally, the fact that the review was conducted by the “reviewing authority” was contrary to the principle that the binding decision of a “tribunal” should not be open to review by a non-judicial body. These fundamental flaws were not corrected by the appeal to the Court Martial Appeal Court, which refused leave to appeal without a hearing. In conclusion, the applicant’s misgivings about the independence of the court martial and its status as a “tribunal” were objectively justified.
Conclusion: violation (unanimously).
Article 6 § 1 and § 3 (c) – The terms of the legal aid offer were not arbitrary or unreasonable, bearing in mind the applicant’s income, but he refused the offer before receiving a reply to the request for reconsideration of the condition imposed and indeed stated that he wished to be represented only by the defending officer. In these circumstances, there was no merit in his complaints about the independence of the defending officer or his handling of the case.
Conclusion: no violation (unanimously).
Article 41 – The Court considered that the finding of a violation constituted sufficient just satisfation in respect of non-pecuniary damage. It made an award in respect of costs and expenses.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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