EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 24895/94

Scott Birnie

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 4 March 1998)

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. 16-50) 3

A. The particular circumstances of the case

(paras. 16-19) 3

B. Relevant domestic law and practice

(paras. 20-50) 3

III. OPINION OF THE COMMISSION

(paras. 51-67) 9

A. Complaints declared admissible

(para. 51) 9

B. Points at issue

(para. 52) 9

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

(paras. 53-65) 9

(a) Applicability of Article 6 para. 1

of the Convention

(para. 55) 9

(b) The independence and impartiality of

the court-martial

(paras. 56-61) 9

CONCLUSION

(para. 62) 11

(c) Remaining points at issue

(paras. 63-64) 11

CONCLUSION

(para. 65) 11

D. Recapitulation

(paras. 66-67) 11

APPENDIX: DECISION OF THE COMMISSION AS TO

THE ADMISSIBILITY OF THE APPLICATION 12

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 1951 and resident in Oxon. 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 a charge 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 23 June 1994 and registered on 12 August

1994.6. On 7 December 1994 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 similar cases before the Commission. The Commission adopted its Reports in

those cases in September 1995 and June 1996, respectively (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.

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. 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. a) On 28 May 1997 the

Commission decided not to grant legal aid to the applicant.

9. 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

10. 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:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENI?

C. BÃŽRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

11. 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.

12. 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.

13. The Commission's decision on the admissibility of the application is

annexed hereto.

14. 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

15. In or about March 1992 the applicant, then a squadron leader in the Royal

Air Force of the United Kingdom, was suspected of the theft of goods on 8 March

1992 from an air force base in the United States. In June 1992 the United States

Department of Justice waived jurisdiction and deferred prosecution of the matter

to the United Kingdom's air force authorities.

16. In February 1993 the applicant was formally charged (pursuant to section

70(1) of the Air Force Act 1955), by the air force authorities of the United

Kingdom, with the civilian criminal offence of theft contrary to the Theft Act

1968. The Convening Officer, by order dated 19 February 1993, convened a general

court-martial in the United Kingdom to try the applicant on the charge. On 3

March 1993 the court-martial found the applicant guilty of theft of three sports

vests and two sports pants. He was sentenced to dismissal from the air force.

17. The applicant petitioned the Confirming Officer against conviction and

sentence. However, on 28 April 1993 his conviction and sentence were confirmed

by the Confirming Officer. On 10 May 1993 the applicant petitioned the Defence

Council against his conviction. By letter dated 2 August 1993 the applicant's

representative was informed of the decision, taken by the Air Force Board, to

reject this petition.

18. The applicant subsequently applied to a single judge of the Courts-Martial

Appeal Court for leave to appeal against conviction to that court. This

application was rejected on 2 December 1993. On 21 February 1994 the applicant

renewed his application before the full Courts-Martial Appeal Court and this

application was rejected on 14 July 1994.

B. Relevant domestic law and practice

19. A person guilty of theft is liable on conviction on indictment to

imprisonment for a term not exceeding ten years or, on summary conviction, to

imprisonment for a term not exceeding six months or a fine or to both (section 7

of the Theft Act 1968).

20. The principal law and procedures applicable are contained in the Air Force

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

21. Many civilian offences are also offences under the 1955 Act (section

70(1)).  Although the final decision on jurisdiction lay with the civilian

authorities, air force personnel who were accused of such offences were usually

tried by the air force authorities unless, for example, civilians had been in

some way involved.

22. 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.

23. At the time of the events in question, a general court-martial consisted

of a President (not under the rank of Flight Lieutenant) appointed by name by

the Convening Officer, and at least four other officers, either appointed by

name by the Convening Officer or, at the latter's request, by their commanding

officer.

24. 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 Air Force 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

25. Before the coming into force of the 1996 Act, a Convening Officer of a

general court-martial had to be a "qualified officer" or an officer not below

the rank of Group Captain 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

Squadron Leader or corresponding rank who was in command of a body of the

regular air force or of the command within which a body of the regular air force

was serving.

26. The Convening Officer assumed responsibility for every case to be tried by

court-martial. He or she would decide upon the nature and detail of the charges

to be brought and was responsible for convening the court-martial.

27. 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.

28. 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. a) 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

29. The Judge Advocate General was appointed by the Queen in February 1991 for

five years. He was answerable to the Queen and was 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 air force 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.

30. 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.

31. 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 or she 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.

32. 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

33. At the commencement of the trial, the accused could object to individual

members of the court-martial, such objection being considered in closed court.

34. 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.

35. 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

(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

36. 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.

37. 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 Air Force Board in cases involving air force

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.

38. 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

39. 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.

40. If an appeal petition was rejected by the Air Force 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.

41. 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.

42. 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.

43. 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.

44. 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

45. 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).

46. 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).

47. 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).

48. 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

49. 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

50. 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

51. 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. ..."

52. The Government made no observations on the applicant's complaints.

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

53. The Commission notes the nature of the charge of which the applicant was

convicted (theft contrary to the Theft Act 1968) and, even assuming his

conviction constituted the equivalent of a summary conviction within the meaning

of section 7 of the 1968 Act, the potential penalty of six months detention is

also noted. Accordingly, the Commission considers that the proceedings involved

the determination of a "criminal charge" within the meaning of Article 6 para. 1

(Art. 6-1) 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

54. 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.

55. 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.

56. 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.

57. The Commission recalls that in the present case a general air force court-

martial was convened pursuant to the Air Force Act 1955 to try the applicant on

the charge. 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 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.

58. 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.

59. 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

60. 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

61. 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.

62. In view of its conclusion above, the Commission finds that it is

unnecessary to examine further these complaints of the applicant.

CONCLUSION

63. 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

64. 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. 62).

65. 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. 65).

M.F. BUQUICCHIO    M.P. PELLONPÄÄ

   Secretary President

   to the First Chamber of the First Chamber