FOURTH SECTION
FINAL DECISION
AS TO THE ADMISSIBILITY OF
Applications Nos.
45689/99, 47416/99, 48709/99, 54614/0, 56307/00,
56845/00, 57275/00, 57430/00, 59242/00, 67045/01, 74311/01
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 25 May 2004 as a Chamber composed of:
MrM. Pellonpää, President,
SirNicolas Bratza,
MrsV. Strážnická,
MrR. Maruste,
MrS. Pavlovschi,
MrL. Garlicki,
MrJ. Borrego Borrego, judges,
and Mr M. O'Boyle, Section Registrar,
Having regard to the applications lodged on various dates between 1997 and 2001 as set out in the appendix to this decision,
Having regard to the partial decision of 4 June 2002 when the cases were also joined,
Having regard to the decision to apply Article 29 § 3 of the Convention in order to examine together the admissibility and merits of the remaining complaints in the cases,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by certain applicants,
Having deliberated, decides as follows:
THE FACTS
The applicants are all nationals of the United Kingdom (see the attached appendix). All but three applicants (Mr Pattinson, Mr Paul Wright and Mr McKendry) were represented before the Court by Mr G. Blades, a lawyer practising in Lincoln. Messrs Pattinson and McKendry were represented by Mr J. Mackenzie, a lawyer practising in London and Mr Paul Wright was represented by Mr N. O'Brien, a lawyer practising in Bristol.
A. The circumstances of the case
The facts of the cases, as submitted by the parties, may be summarised as follows. Each applicant was convicted and sentenced by an army or air-force court-martial convened following the entry into force of the Armed Forces Act 1996.
In July 1997 Mr Vaughan was convicted by court-martial of drunkenness and common assault (the latter contrary to section 39 of the Criminal Justice Act 1988). He was fined £500 pounds sterling (“GBP”) and ordered to pay GBP 100 in compensation. The reviewing authority confirmed the verdict and sentence. His application for leave to appeal to the Courts-Martial Appeal Court (“CMAC”) was dismissed on 4 November 1997.
In September 1998 Mr Pattinson was convicted by court-martial of desertion from the army and was sentenced to ten months' detention and to dismissal. The reviewing authority confirmed his sentence. His appeal against sentence to the CMAC was dismissed on 25 January 1999.
In September 1998 Mr Alistair Wright was convicted by court-martial of assault occasioning actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861 (“the 1861 Act”). He was sentenced to be reduced in rank and ordered to pay GBP 1000 in compensation. The reviewing authority confirmed the verdict and sentence. In December 1998 his application for leave to appeal against conviction and sentence to the CMAC was rejected and his renewed application for leave was also dismissed by the CMAC on 22 March 1999.
In February 1998 Mr Paul Wright was convicted by a court-martial of theft contrary to section 1(1) of the Theft Act 1968 (“the 1968 Act”). He was sentenced to fifty-six days' detention, to be dismissed from the service and to be reduced to the ranks. The reviewing authority confirmed the verdict and sentence. His appeal to the CMAC against conviction and sentence was dismissed on 5 February 1999.
In March 1999 Mr Barker was convicted by a court-martial of indecent assault on a man contrary to section 15(1) of the Sexual Offences Act 1956 (“the 1956 Act”). He was sentenced to one year and ten months' detention and dismissed from the service. The reviewing authority confirmed those findings except it reduced his sentence of detention to one year. In June 1999 his application for leave to appeal against conviction and sentence to the CMAC was rejected and his renewed application for leave was also dismissed by the CMAC on 28 October 1999.
In February 1999 Mr Mason was convicted by a court-martial of three offences of theft contrary to section 1(1) of the 1968 Act and he was fined GBP 75. The reviewing authority confirmed the verdict and sentence. In July 1999 the CMAC rejected his application for leave to appeal against conviction and sentence and his renewed application for leave was dismissed by the CMAC on 4 November 1999.
In August 1999 Mr Hathaway was convicted by a court-martial of indecent assault contrary to section 14(1) the 1956 Act. He was sentenced to dismissal from the service. The reviewing authority confirmed the verdict and sentence. In December 1999 the CMAC rejected his application for leave to appeal against conviction and sentence and his renewed leave application was dismissed by the CMAC on 11 April 2000.
In March 1999 Mr Holbrook was convicted by a court-martial of two offences of making a threat to kill (contrary to section 16 of the 1861 Act), one offence of disgraceful conduct and one offence of criminal damage (contrary to section 1(1) of the Criminal Damage Act 1971). He was sentenced to nine months' imprisonment and to dismissal from the service. The reviewing authority confirmed the verdict and sentence. In July 1999 his application for leave to appeal against conviction and sentence to the CMAC was rejected and his renewed leave application was dismissed by the CMAC on 10 April 2000.
In January 2000 Mr Garmson was convicted by a court-martial of five offences of indecent assault (contrary to section 14(1) of the 1956 Act). He was sentenced to ten months' detention and to dismissal from the service. The reviewing authority did not consider his petition within the statutory time-limit. In April 2000 his application for leave to appeal against conviction to the CMAC was rejected and his renewed leave application was dismissed by the CMAC on 23 June 2000.
In September 2000 Mr Cook was convicted by a court-martial of assault occasioning actual bodily harm (contrary to section 47 of the 1861 Act). He was sentenced to one year and fifty days' detention and to dismissal from the service. The reviewing authority confirmed the sentence. In December 2000 the CMAC refused his application for leave to appeal against sentence and his renewed leave application was dismissed by the CMAC on 20 February 2001.
In March 2000 Mr McKendry's court-martial found him not guilty of three offences of theft and he pleaded guilty to a charge of absence without leave. He was sentenced to nine months' detention and to a reduction in rank. The Reviewing Authority confirmed the verdict and sentence. His appeal to the CMAC was dismissed on 20 February 2001.
B. Relevant domestic law and practice
The provisions of the Army Act 1955 and the Air Force Act 1955, which regulated army and air-force courts-martial prior to 1 April 1997, are set out in Findlay v. the United Kingdom (judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I, §§ 32-51) and Coyne v. the United Kingdom (judgment of 24 September 1997, Reports 1997‑V, §§ 20-44).
Following the adoption of the Commission's report in the Findlay case (no. 22107/93, Commission's report of 5 September 1995), the Armed Forces Act 1996 came into force on 1 April 1997 and significantly amended both 1955 Acts. The relevant domestic law and practice applicable to air-force courts-martial following the entry into force of the 1996 Act is set out in the case of Cooper v. the United Kingdom ([GC], no. 48843/99, §§ 15-77, ECHR 2003‑XII). The relevant regulatory framework governing post-1996 Act army courts-martial is the same in all material respects (the Cooper judgment, at § 107).
COMPLAINTS
The applicants complain under Article 6 § 1 of the Convention that they did not have a fair and public hearing by an independent and impartial tribunal established by law.
THE LAW
The applicants maintain that their courts-martial did not amount to fair and public hearings by independent and impartial tribunals established by law. In particular, they argue that the post-1996 Act court-martial system has similar structural independence and impartiality and, consequently, fairness problems as were found to violate Article 6 § 1 of the Convention in the above-cited Findlay case. Article 6 § 1 of the Convention reads, in so far as relevant, as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair and public ... hearing ... by an independent and impartial tribunal established by law.”
The Court recalls that, in the case of Morris v. the United Kingdom, the Court found the army court-martial system, put in place by the 1996 Act, to violate, inter alia, the independence and impartiality requirements of Article 6 § 1 of the Convention (no. 38784/97, ECHR 2002-I). The present cases were then communicated to the respondent Government raising the applicability of Article 6 together with the complaint outlined above.
Subsequently, the House of Lords opined that post-1996 Act air-force and army court-martial systems were compliant with the independence and impartiality requirements of Article 6 (R. v. Boyd and Others, judgment of 18 July 2002), noting, inter alia, that all relevant information had not been put before this Court in the Morris case. The present cases were consequently adjourned. Subsequently, the Grand Chamber found, in concluding that there had been no violation of Article 6 § 1 of the Convention in the above-cited Cooper case, that the applicant's misgivings about the independence and impartiality of his air-force court-martial convened under the 1996 Act were not objectively justified and that those court-martial proceedings could not consequently be said to have been unfair.
Following the adoption of the above-cited Cooper judgment, the parties' observations were requested in the present cases. The Government submit that the cases are inadmissible given the Court's findings in the above-cited Cooper judgment and the applicants did not submit observations in response.
The Court considers that Article 6 § 1 applies to the applicants' proceedings since they involved the determination of criminal charges against them or of their sentence following a plea of guilty to criminal charges: it is noted that all were charged with civilian criminal offences except Messrs Pattison and McKendry who were sentenced to 10 months and 9 months' detention, respectively (Engel and Others v. the Netherlands judgment of 8 June 1976, Series A no. 22, §§ 82-83, the above-cited Findlay judgment, § 69, Ezeh and Connors v. the United Kingdom [GC], Nos. 39665/98 and 40086/98, §§ 69-130, ECHR 2003-X and Cooper v. the United Kingdom [GC], no. 48843/99, § 80, ECHR 2003‑XII).
Furthermore, the Court finds no reason in the present cases to depart from its finding in the above-cited Cooper judgment, a finding which applies equally to air-force (Messrs Vaughan, Alistair Wright, Paul Wright, Mason and Hathaway) and army (the remaining applicants) courts-martial (the Cooper judgment, at § 107).
Accordingly, the Court concludes, for the reasons set out in detail in the above-cited Cooper judgment, that the applicants' complaint under Article 6 § 1 of the Convention is manifestly ill-founded and should be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to discontinue the application of Article 29 § 3 of the Convention; and
Declares the applications inadmissible.
Michael O'BoyleMatti Pellonpää
RegistrarPresident
11 Applications against the United Kingdom
(appendix to the admissibility decision of 25 May 2004)
No.
Applicant's Name
Year of Birth
Address
Application No.
Date of Introduction
1
Mark Vaughan
1969
Lincolnshire
45689/99
11/12/1997
2
Mark Pattinson
1974
Berks
47416/99
06/04/1999
3
Alistair Hamilton Wright
1960
Bucks
48709/99
24/05/1999
4
Paul Wright
1968
Shrewsbury
54614/00
29/07/1999
5
Alan David Barker
1978
Essex
56307/00
07/02/2000
6
Stephen Terence Mason
1959
Lincoln
56845/00
14/02/2000
7
James Stuart Hathaway
1965
Lincolnshire
57275/00
05/05/2000
8
George Anthony Holbrook
1965
Kent
57430/00
02/05/2000
9
Neil Garmson
1970
Shropshire
59242/00
10/07/2000
10
Philip David Cook
1979
Middlesborough
67045/01
26/02/2001
11
Mark McKendry
1972
1st (UK) ASDR, Herford, Germany
74311/01
03/04/2000
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