EUROPEAN COMMISSION OF HUMAN RIGHTS
FIRST CHAMBER
Application No. 28009/95
Marcus Paul Smart
against
the United Kingdom
REPORT OF THE COMMISSION
(adopted on 4 March 1998)
28009/95 - i -
TABLE OF CONTENTS
Page
I.INTRODUCTION
(paras. 1-15)1
A.The application
(paras. 2-4)1
B.The proceedings
(paras. 5-10)1
C.The present Report
(paras. 11-15)2
II.ESTABLISHMENT OF THE FACTS
(paras. 16-51)3
A.The particular circumstances of the case
(paras. 16-19)3
B.Relevant domestic law and practice
(paras. 20-51)3
III.OPINION OF THE COMMISSION
(paras. 52-68)9
A.Complaints declared admissible
(para. 52)9
B.Points at issue
(para. 53)9
C.As regards Article 6 para. 1 of the Convention
(paras. 54-66)9
(a)Applicability of Article 6 para. 1
of the Convention
(para. 56)9
(b)The independence and impartiality
of the court-martial
(paras. 57-62)9
CONCLUSION
(para. 63)11
(c)Remaining points at issue
(paras. 64-65)11
CONCLUSION
(para. 66)11
D.Recapitulation
(paras. 67-68)11
APPENDIX:DECISION OF THE COMMISSION AS TO
THE ADMISSIBILITY OF THE APPLICATION12
I.INTRODUCTION
1.The following is an outline of the case as submitted to the European
Commission of Human Rights, and of the procedure before the Commission.
A.The application
2.The applicant is a British citizen, born in 1968 and resident in
Northampton. He was represented before the Commission by Mr Gilbert Blades, a
solicitor practising in Lincoln.
3.The application is directed against the United Kingdom. The respondent
Government were represented by Mr Eaton, Agent, Foreign and Commonwealth Office.
4.The case raises issues under Article 6 para. 1 of the Convention and
mainly concerns the independence and impartiality of the court-martial convened
to try charges against the applicant. The applicant also argues that the court-
martial proceedings were unfair and not public and that the court-martial was
not "established by law" within the meaning of Article 6 para. 1 of the
Convention.
B.The proceedings
5.The application was introduced on 3 July 1995 and registered on 25 July
1995.
6.On 28 February 1996 the Commission (First Chamber) decided, pursuant to
Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application
to the respondent Government and to adjourn the application pending the outcome
of two similar cases before the Commission. The Commission had adopted its
Report in the first case in September 1995 and it adopted its Report in the
second case in June 1996 (Eur. Court HR, Findlay v. the United Kingdom judgment
of 25 February 1997, Reports of Judgments and Decisions 1997-I, Comm. Report
dated 5 September 1995 and Coyne v. the United Kingdom judgment of 24 September
1997, to be published in Reports of Judgments and Decision 1997, Comm. Report
dated 25 June 1996). Accordingly, on 2 July 1996 the Commission decided to
invite the parties to submit written observations on the admissibility and
merits of the applicant's complaints under Article 6 para. 1 of the Convention
and those observations were requested by letter dated 12 July 1996.
7.By letter dated 31 October 1996 the Government stated that they did not
wish to submit observations on the admissibility of the application and that,
should the application be admissible, they would wish to have the opportunity to
submit any observations on the merits they considered necessary. On 4 March 1997
the Commission decided to grant legal aid to applicant.
8.Further to the judgment of the Court in the Findlay case (Eur. Court HR,
Findlay v. the United Kingdom judgment, loc. cit.), the Commission declared the
application admissible on 9 April 1997.
9.The text of the Commission's decision on admissibility was sent to the
parties on 24 April 1997 and they were invited to submit such further
information or observations on the merits as they wished. No such further
submissions were made by either party.
10.After declaring the case admissible, the Commission, acting in accordance
with Article 28 para. 1 (b) of the Convention, also placed itself at the
disposal of the parties with a view to securing a friendly settlement. In the
light of the parties' reaction, the Commission now finds that there is no basis
on which such a settlement can be effected.
C.The present Report
11.The present Report has been drawn up by the Commission (First Chamber) in
pursuance of Article 31 of the Convention and after deliberations and votes, the
following members being present:
MMM.P. PELLONPÄÄ, President
N. BRATZA
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
MrsJ. LIDDY
MML. LOUCAIDES
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENI?
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
MrsM. HION
MrR. NICOLINI
12.The text of this Report was adopted on 4 March 1998 by the Commission and
is now transmitted to the Committee of Ministers of the Council of Europe, in
accordance with Article 31 para. 2 of the Convention.
13.The purpose of the Report, pursuant to Article 31 of the Convention, is:
(i)to establish the facts, and
(ii)to state an opinion as to whether the facts found disclose a breach
by the State concerned of its obligations under the Convention.
14.The Commission's decision on the admissibility of the application is
annexed hereto.
15.The full text of the parties' submissions, together with the documents
lodged as exhibits, are held in the archives of the Commission.
II.ESTABLISHMENT OF THE FACTS
A.The particular circumstances of the case
16.In May 1994 the applicant, who was a non-commissioned officer in the army
stationed in Turkey, was charged (pursuant to section 70 of the Army Act 1955)
with indecent assault and common assault contrary to the Sexual Offences Act
1956 and the Criminal Justice Act 1988, respectively. He was also charged with
disgraceful conduct of an indecent kind contrary to section 66 of the Army Act
1955.
17.The Convening Officer, by order dated 15 August 1994, convened a district
court-martial to try the applicant on the charges. On 14 September 1994 the
court-martial found the applicant guilty of disgraceful conduct and he was
dismissed from the army with disgrace and reduced to the ranks.
18.The Confirming Officer subsequently confirmed the conviction and sentence.
On 11 February 1995 the applicant petitioned the Defence Council against
conviction. The applicant submitted that his conviction was unsafe and
unsatisfactory because the Judge Advocate had erred and misdirected the court-
martial that certain listed matters of evidence would amount to corroboration of
the third charge against the applicant. By letter dated 24 March 1995 the
applicant's representative was informed of the decision, taken by the Army
Board, not to vary the conviction.
19.On 29 March 1995 the applicant applied to a single judge of the Courts-
Martial Appeal Court for leave to appeal to that court against conviction. The
applicant raised the same matters before the single judge as had been raised by
him before the Defence Council. On 24 May 1995 this application was rejected.
The single judge found that, even assuming the relevant offence required
corroboration, there was no misdirection in the Judge Advocate's instructions to
the court-martial. Each of the listed matters of evidence was capable of
corroborating an important aspect (albeit not the whole) of the victim's
evidence - such matters are to be regarded as to their cumulative effect and not
as separate items. The single judge also found that the fingerprint evidence was
of exceptional force.
B.Relevant domestic law and practice
20.The maximum penalty for disgraceful conduct of an indecent kind is two
years imprisonment (section 66 of the Army Act 1955).
21.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
22.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.
23.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.
24.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.
25.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
26.Before the coming into force of the 1996 Act, the Convening Officer of a
district court-martial had to be a ?qualified officer? or an officer not below
the rank of Colonel to whom the qualified officer had delegated his or her
powers. To be a ?qualified 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.
27.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.
28.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.
29.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.
30.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
31.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.
32.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.
33.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.
34.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
35.At the commencement of the trial, the accused could object to individual
members of the court-martial, such objection being considered in closed court.
36.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.
37.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.
38.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
39.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.
40.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.
41.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
42.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.
43.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.
44.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.
45.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.
46.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.
47.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
48.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).
49.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).
50.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).
51.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).
III.OPINION OF THE COMMISSION
A.Complaints declared admissible
52.The Commission has declared admissible the applicant's complaints that, in
respect of the court-martial proceedings against him, he did not have a fair and
public hearing by an independent and impartial tribunal established by law.
B.Points at issue
53.Accordingly, the points at issue in the present case are:
-whether the applicant was given a fair hearing before an independent and
impartial tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of the
Convention; and
-whether the applicant was afforded a "public" hearing by a tribunal
"established by law" and whether the proceedings in other specific respects
complied with the requirement of fairness in Article 6 para. 1 (Art. 6-1) of the
Convention.
C.As regards Article 6 para. 1 (Art. 6-1) of the Convention
54.Article 6 para. 1 (Art. 6-1) 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. ..."
55.The Government made no observations on the applicant's complaints.
(a)Applicability of Article 6 para. 1 (Art. 6-1) of the Convention
56.The Commission notes the nature of the charge of which the applicant was
found guilty (disgraceful conduct of an indecent kind) and the potential penalty
of two years imprisonment. Accordingly, the Commission considers that the
proceedings involved the determination of a charge of a criminal nature within
the meaning of Article 6 para. 1 of the Convention (Eur. Court HR, Garyfallou
AEBE v. Greece judgment of 24 September 1997, to be published in Reports of
Judgments and Decisions 1997, paras. 32-33, with further references).
(b)The independence and impartiality of the court-martial
57.The main complaint of the applicant is that the court-martial was neither
independent nor impartial within the meaning of Article 6 para. 1 (Art. 6-1) of
the Convention mainly because of the role of the Convening Officer. In
particular, the applicant points to, inter alia, that officer's connection with
the members of the court-martial and with the prosecution of the case.
58.The Commission recalls that, in the Findlay judgment (Eur. Court HR,
Findlay v. the United Kingdom judgment of 25 February 1997, Reports of Judgments
and Decisions 1997-I), the Court found that a general court-martial convened
pursuant to the Army Act 1955 did not meet the requirements of independence and
impartiality set down by Article 6 para. 1 (Art. 6-1) of the Convention in view,
in particular, of the central part played in its organisation by the Convening
Officer. In this latter respect, the Court considered that the Convening Officer
was central to the applicant's prosecution and was closely linked to the
prosecution authorities; the Court expressed some concern that the members of
the court-martial were subordinate (either directly or indirectly) to the
Convening Officer; and the Court found it significant that the Convening Officer
also acted as Confirming officer.
59.The Court has also found a district court-martial convened pursuant to the
Air Force Act 1955 to have similar deficiencies (Eur. Court HR, Coyne v. the
United Kingdom judgment of 24 September 1997, to be published in Reports of
Judgments and Decisions 1997). In particular, it considered that there were no
significant differences between the part played by the Convening Officer in Mr
Coyne's court-martial, under the Air Force Act 1955, and in that of Mr Findlay,
under the Army Act 1955. While an appeal to the Courts-Martial Appeal Court was
open to Mr Coyne, the Court concluded that the organisational defects in the
court-martial could not be corrected by any subsequent review procedure because
an accused faced with a serious criminal charge is entitled to a first instance
tribunal which meets the requirements of Article 6 para. 1 (Art. 6-1) of the
Convention.
60.The Commission recalls that in the present case a district army court-
martial was convened pursuant to the Army Act 1955 to try the applicant on the
charges. The Commission is of the view that there were no significant
differences between the part played by the Convening Officer in the organisation
of the applicant's court-martial and Mr Coyne's or Mr Findlay's courts-martial.
Accordingly, the Commission considers that the applicant's court-martial did not
meet the independence and impartiality requirements of Article 6 para. 1
(Art. 6-1) of the Convention. The Commission also considers that, since the
applicant was faced with, inter alia, a serious charge of a criminal nature and
was therefore entitled to a first instance tribunal complying with the
requirements of Article 6 para. 1 (Art. 6-1), such organisational defects in his
court-martial could not be corrected by any subsequent review procedure
including an appeal to the Courts-Martial Appeal Court.
61.Accordingly, and for the reasons expressed in detail in the above-cited
judgment of the Court in Mr Findlay's case, the Commission concludes that the
court-martial which dealt with the applicant's case was not independent and
impartial within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
62.The Commission is further of the opinion that since the court-martial has
been found to lack independence and impartiality, it could not guarantee a fair
trial to the applicant (Eur. Court HR, Findlay v. the United Kingdom judgment,
loc. cit., Comm. Report, para. 108).
CONCLUSION
63.The Commission concludes, unanimously, that in the present case there has
been a violation of Article 6 para. 1 (Art. 6-1) of the Convention in that the
applicant was not given a fair hearing by an independent and impartial tribunal.
(c)Remaining points at issue
64.The applicant also makes specific complaints of the unfairness of the
court-martial proceedings on the grounds, inter alia, that he was denied a trial
by jury and that he had no right to an appeal against sentence only to the
Courts-Martial Appeal Court. In addition, he complains that the court-martial
gave no reasons for its decision against him and that the advice of the judge
advocate to the court-martial members on sentencing and of the Judge Advocate
General's office to the reviewing authority was given in private. The applicant
further complains that the court-martial proceedings were not "public" and that
the court-martial was not "established by law" within the meaning of Article 6
para. 1 (Art. 6-1) of the Convention.
65.In view of its conclusion above, the Commission finds that it is
unnecessary to examine further these complaints of the applicant.
CONCLUSION
66.The Commission concludes, unanimously, that in the present case it is not
necessary to examine the applicant's complaints that he was not afforded a
"public" hearing by a tribunal "established by law" and that in other specific
respects the proceedings did not comply with the requirement of fairness in
Article 6 para. 1 (Art. 6-1) of the Convention.
D.Recapitulation
67.The Commission concludes, unanimously, that in the present case there has
been a violation of Article 6 para. 1 (Art. 6-1) of the Convention in that the
applicant was not given a fair hearing by an independent and impartial tribunal
(para. 63).
68.The Commission concludes, unanimously, that in the present case it is not
necessary to examine the applicant's complaints that he was not afforded a
"public" hearing by a tribunal "established by law" and that in other specific
respects the proceedings did not comply with the requirement of fairness in
Article 6 para. 1 (Art. 6-1) of the Convention (para. 66).
M.F. BUQUICCHIO M.P. PELLONPÄÄ
Secretary President
to the First Chamberof the First Chamber
Full & Egal Universal Law Academy