EUROPEAN COMMISSION OF HUMAN RIGHTS

Application Nos. 34822/97, 34957/97, 34988/97,

35575/97, 35576/97 and 35578/97

James McDAID, Shane WARD, Stephen GILES,

James LEECE, Tracey SHORTERS and Kevin THWAITES

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 31 May 1999)

I. INTRODUCTION

(paras. 1-15) ................................................. 1

A. The applications

(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. 16-24) ................................................ 4

A. The particular circumstances of the cases

(paras. 16 -17) ............................................ 4

B. Relevant domestic law

(paras. 18-24) ............................................ 4

III. OPINION OF THE COMMISSION

(paras. 25-45) ................................................ 6

A. Complaints declared admissible

(para. 25) ................................................ 6

B. Points at issue

(para. 26) ................................................ 6

C. As regards Article 6 para. 1 of the Convention

(paras. 27-43) ............................................ 6

(a) Applicability of Article 6 para. 1of the Convention

(para. 28) ................................................ 6

(b) Independence and impartiality of the applicants’ courts-martial

(paras. 29-35) ............................................ 7

CONCLUSION

(para. 36) ................................................. 8

(c) Remaining points at issue

(paras. 37-42) ............................................ 8

CONCLUSION

(para. 43) ................................................ 9

D. Recapitulation

(paras. 44-45) ............................................ 9

Page

APPENDIX I: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF APPLICATION No. 34822/97 ............ 10

APPENDIX II: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF APPLICATION No. 34957/97 ............ 18

APPENDIX III: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF APPLICATION No. 34988/97 ............ 26

ADMISSIBILITY OF APPLICATION No. 35575/97 ............ 34

APPENDIX V: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF APPLICATION No. 35576/97 ............ 42

APPENDIX VI: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF APPLICATION No. 35578/97 ............ 50

I. INTRODUCTION

1 . The following is an outline of the cases as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The applications

2 . The applicants are all British citizens. The first applicant was born in 1965 and he resides in Bedfordshire. The second applicant was born in 1962 and he resides in East Yorkshire. The third applicant was born in 1967 and he resides in Hampshire. The fourth applicant was born in 1970 and he resides in Liverpool. The fifth applicant was born in 1971 and she resides in South Wirral and the sixth applicant was born in 1955 and he resides in Essex. The applicants were represented before the Commission by Mr Gilbert Blades, a solicitor practising in Lincoln.

3 . The applications are directed against the United Kingdom. The respondent Government were represented by Mr Martin Eaton, Agent, Foreign and Commonwealth Office.

4 . The cases mainly concern the independence and impartiality of the applicants’ court-martial and the fairness of the proceedings before that court. The applicants invoke Article 6 para. 1 of the Convention.

B. The proceedings

5 . The first application was introduced on 5 February 1997 and registered on 11 February 1997; the second was introduced on 12 February 1997 and registered on 18 February 1997; the third was introduced on 6 February 1997 and registered on 19 February 1997; and the fourth, fifth and sixth applications were introduced 26 March 1997 and registered on 9 April 1997.

6 . On 3 December 1997 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the applications to the respondent Government and to invite the parties to submit written observations on the admissibility and merits of the applicants' complaints under Article 6 para. 1.

7 . The Government's observations were submitted on 1 May 1998 after one extension of the time-limit fixed for this purpose.  Only the sixth applicant submitted observations in reply and he did so on 7 June 1998.  On 27 May 1998 the Commission granted the first applicant legal aid for the representation of his case.

8 . On 22 October 1998 the Commission declared admissible the first and second applicants’ cases. It also declared admissible the third, fourth, fifth and sixth applicants’ complaints under Article 6 para. 1 of the Convention that they did not receive a fair and public hearing by an independent and impartial tribunal established by law. It declared inadmissible the remainder of the latter four applications.

9 . The texts of the Commission's decisions on admissibility were sent to the parties on 30 October 1998 and they were invited to submit such further information or observations on the merits as they wished. Pursuant to the entry into force of Protocol No. 11 to the Convention on 1 November 1998, the applications were transferred to the Commission sitting in plenary.

10 . After declaring the case admissible, the Commission, acting in accordance with former [1] 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 cases. In the light of the parties' reaction, the Commission now finds that there is no basis on which such settlements can be effected.

C. The present Report

11 . The present Report has been drawn up by the Commission in pursuance of former Article 31 of the Convention and after deliberations and votes, the following members being present:

MM S. TRECHSEL, President

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

J.-C. GEUS

B. MARXER

M.A. NOWICKI

B. CONFORTI

Sir Nicolas BRATZA

MM I. BÉKÉS

D. ŠVÁBY

G. RESS

A. PERENIĆ

C. BÃŽRSAN

K. HERNDL

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

12 . Having decided to join the cases on 31 May 1999, the Commission adopted, on the same day, the text of this Report and it is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with former Article 31 para. 2 of the Convention.

13 . The purpose of the Report, pursuant to former 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 decisions on the admissibility of the applications are 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.

A. The particular circumstances of the cases

16 . At the time of the events in question, all applicants, with the exception of Ms Shorters, were serving in the army and were tried by either district or general courts-martial convened pursuant to the Army Act 1955. Ms Shorters was serving in the Royal Air Force and she was tried by a district court-martial convened pursuant to the Air Force Act 1955.

17 . Mr McDaid, Mr Giles, Ms Shorters and Mr Thwaites were charged, tried and convicted by court-martial of civilian criminal offences. Mr Ward was charged with a civilian criminal offence and pleaded guilty during his court-martial. Mr Leece was charged, tried and convicted by his court-martial of an armed forces’ disciplinary offence for which he was sentenced to , inter alia , six months imprisonment.

B. Relevant domestic law

18 . The relevant provisions of the Army Act 1955 and the Air Force Act 1955 are set out respectively in the judgments of the European Court of Human Rights in the Findlay and Coyne cases (Findlay v. the United Kingdom judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I, pp. 272-75, paras. 32-51, and Coyne v. the United Kingdom judgment of 24 September 1997, Reports 1997-V, pp. 1848-52, paras. 20-44).

19 . Central to the system under the 1955 Acts was the role of the “convening officer”. This officer (who had to be of a specified rank and in command of a body of the regular forces or of the command within which the person to be tried was serving) assumed responsibility for every case to be tried by court-martial. He or she had the final decision on the nature and detail of the charges to be brought and the type of court-martial required, and was responsible for convening the court-martial.

20 . The convening officer 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. Failing the appointment of a judge advocate by the Judge Advocate General’s Office, the convening officer could appoint one. He also appointed, or directed a commanding officer to appoint, the prosecuting officer.

21 . 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 was responsible for ordering the attendance at the hearing of all witnesses “reasonably requested” by the defence.

22 . The convening officer could dissolve the court-martial either before or during the trial, when required in the interests of the administration of justice. In addition, he could comment on the proceedings of a court-martial. Those remarks would not form part of the record of the proceedings and would normally be communicated in a separate minute to the members of the court, although in an exceptional case, where a more public instruction was required in the interests of discipline, they could be made known in the orders of the command.

23 . The convening officer usually acted as confirming officer also. A court-martial’s findings were not effective until confirmed by the confirming officer, who was empowered to withhold confirmation or substitute, postpone or remit in whole or in part any sentence.

24 . Since the applicants’ trials, the law has been amended by the Armed Forces Act 1996 (see the above-mentioned Findlay v. the United Kingdom judgment, p. 276, paras. 52-57).

A. Complaints declared admissible

25 . The Commission has declared admissible the applicants’ complaints that, in respect of the court-martial proceedings against them, they did not have:

- a fair hearing by an independent and impartial tribunal; or

- a “public” hearing by a tribunal “established by law”.

B. Points at issue

26 . Accordingly, the points at issue in the present cases are:

- whether the applicants were each given a fair hearing before an independent and impartial tribunal within the meaning of Article 6 para. 1 of the Convention; and

- whether the applicants were 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 of the Convention.

C. As regards Article 6 para. 1 of the Convention

27 . Article 6 para. 1, 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 … by an independent and impartial tribunal established by law. …”

(a) Applicability of Article 6 para. 1 of the Convention

28 . The Commission notes that Mr McDaid, Mr Giles, Ms Shorters and Mr Thwaites were found guilty of civilian criminal offences and that Mr Leece was sentenced to, inter alia , six months’ imprisonment on conviction for an armed forces’ disciplinary offence. It also notes that Mr Ward pleaded guilty to the civilian criminal offences against him. The Commission therefore considers that the applicants’ court-martial proceedings involved the determination of charges of a criminal nature within the meaning of Article 6 para. 1 of the Convention, it being the case that the determination of Mr Ward’s sentence after his plea of guilty constitutes a part of the determination of the charges against him (see the above-cited Findlay v. the United Kingdom judgment at para. 69 and, for example, Garyfallou Aebe v. Greece judgment of 24 September 1997 , Reports 1977-V, no. 49, p. 1830, paras. 32-33, with further references).

(b) Independence and impartiality of the applicants’ courts-martial

29 . Referring to the Coyne application before the Commission (Coyne v. the United Kingdom judgment, loc. cit ., Comm. Report 26.6.96), the applicants mainly argue that their courts-martial lacked independence and impartiality and that the proceedings against them were consequently unfair. They refer, in particular, to the role of the convening officer and to that officer’s connection to the members of the relevant courts-martial and to the prosecution authorities.

30 . The Government accept that these cases raise issues similar to those in respect of which the Court found a violation of Article 6 para. 1 in the above-cited Findlay and Coyne cases. Accordingly, the Government made no observations on the admissibility of these aspects of the applications and, having reserved their position on the merits, did not submit any further observations on the merits of these issues.

31 . The Commission recalls that, in the above mentioned Findlay judgment, 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 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.

32 . The Court subsequently found a district court-martial convened pursuant to the Air Force Act 1955 to have similar deficiencies (see the above-cited Coyne v. the United Kingdom judgment). 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 of the Convention. In addition, the Court has recently found a violation of Article 6 para. 1 on the same basis in a series of cases involving complaints about the independence and impartiality of army and air force district and general courts-martial convened pursuant to the Army and Air Force Acts 1955 (Cable and Others v. the United Kingdom judgment of 18 February 1999, to be reported in the official Reports of selected judgments and decisions).

33 . The Commission recalls that in the present cases district and general army and air force courts-martial were convened pursuant to the Army and Air Force Acts 1955 to try the applicants. It can find no reason to distinguish the present cases from those of Mr Findlay, of Mr Coyne or of Mr Cable and Others as regards the part played by the convening officer in the organisation of the courts-martial. Accordingly, the Commission considers that the applicants’ courts-martial did not meet the independence and impartiality requirements of Article 6 para. 1 of the Convention. The Commission also considers that, since the applicants were faced with, inter alia , serious charges of a criminal nature and were therefore entitled to a first instance tribunal complying with the requirements of Article 6 para. 1, such organisational defects in their courts-martial could not be corrected by any subsequent review procedure.

34 . 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 courts-martial which dealt with the applicants’ cases were not independent and impartial within the meaning of Article 6 para. 1 of the Convention.

35 . The Commission is further of the opinion that since the applicants’ courts-martial have been found to lack independence and impartiality, they could not guarantee a fair trial to any of the applicants (Findlay v. the United Kingdom judgment, loc. cit ., Comm. Report, at para. 108).

36 . The Commission concludes, unanimously, that in each of the present cases there has been a violation of Article 6 para. 1 of the Convention in that the applicants were not given a fair hearing by an independent and impartial tribunal.

(c) Remaining points at issue

37 . The applicants further complain that the court-martial proceedings against them were not “public” and that their courts-martial were not “established by law” within the meaning of Article 6 para. 1 of the Convention.

38 . Three applicants also make specific complaints about the unfairness of the court-martial proceedings against them. Their submissions and the Government’s observations are as follows:

39 . Mr McDaid 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 Mr McDaid’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.

40 . Mr Ward submits that, although he was granted legal aid by the army, his legal representation was inadequate. In this respect, he alleges that his barrister was appointed 'at the last minute' and that the legal advice of his barrister was deficient (particularly as regards obtaining expert reports regarding his epilepsy for the trial). He further complains that he did not also have a solicitor to advise him. The Government submitted a letter dated 13 March 1998 from the Army Legal Aid Authority which records (based on that authority's file) that Mr Ward’s barrister was instructed on 5 January 1996 and advised in conference on 13 February 1996. The Government also submit that Mr Ward could have raised the adequacy of his legal assistance on appeal to the Courts-Martial Appeal Court but that he did not do so.

41 . Mr Thwaites points out that he was denied free legal advice from an English solicitor for his interview with the service police. He argues that the Police and Criminal Evidence Act 1984 applies in England and Wales and not in Scotland. Accordingly, he contests the admission into evidence during his court-martial of that interview. The Government submit, in this respect, that the Scottish solicitor who initially advised Mr Thwaites was qualified to represent him and they refer to the conclusion of the Courts-Martial Appeal Court in this respect.

42 . In view of its conclusion at paragraph 36 above, the Commission finds that it is unnecessary also to examine further these complaints of the applicants.

43 . The Commission concludes, unanimously, that in the present cases it is not necessary also to examine the applicants’ complaints that they were not afforded a “public” hearing by a tribunal “established by law” and that it is not necessary also to examine the complaints of Mr McDaid, Mr Ward and Mr Thwaites that in other specific respects the proceedings did not comply with the requirement of fairness in Article 6 para. 1 of the Convention.

D. Recapitulation

44 . The Commission concludes, unanimously, that in each of the present cases there has been a violation of Article 6 para. 1 of the Convention in that the applicants were not given a fair hearing by an independent and impartial tribunal (para. 36 above).

45 . The Commission concludes, unanimously, that in the present cases it is not necessary also to examine the applicants’ complaints that they were not afforded a “public” hearing by a tribunal “established by law” and that it is not necessary also to examine the complaints of Mr McDaid, Mr Ward and Mr Thwaites that in other specific respects the proceedings did not comply with the requirement of fairness in Article 6 para. 1 of the Convention (para. 43 above).

M.-T. SCHOEPFER S. TRECHSEL

Secretary President

to the Commission of the Commission

[1]  The term “former” refers to the text of the Convention before the entry into force of protocol No. 11 on 1 November 1998.