EUROPEAN COMMISSION OF HUMAN RIGHTS

                   Application No. 22107/93

                       Alexander Findlay

                            against

                      the United Kingdom

                   REPORT OF THE COMMISSION

                 (adopted on 5 September 1995)

                       TABLE OF CONTENTS

                                                            Page

I.   INTRODUCTION

     (paras. 1-16). . . . . . . . . . . . . . . . . . . . . .1

     A.   The application

          (paras. 2-4). . . . . . . . . . . . . . . . . . . .1

     B.   The proceedings

          (paras. 5-12) . . . . . . . . . . . . . . . . . . .1

     C.   The present Report

          (paras. 13-16). . . . . . . . . . . . . . . . . . .2

II.  ESTABLISHMENT OF THE FACTS

     (paras. 17-74) . . . . . . . . . . . . . . . . . . . . .4

     A.   The particular circumstances of the case

          (paras. 17-48). . . . . . . . . . . . . . . . . . .4

     B.   Relevant domestic law and practice

          (paras. 49-74). . . . . . . . . . . . . . . . . . .9

III. OPINION OF THE COMMISSION

     (paras. 75-113). . . . . . . . . . . . . . . . . . . . 14

     A.   Complaints declared admissible

          (para. 75). . . . . . . . . . . . . . . . . . . . 14

     B.   Points at issue

          (para. 76). . . . . . . . . . . . . . . . . . . . 14

     C.   Article 6 para. 1 of the Convention

          (paras. 77-111) . . . . . . . . . . . . . . . . . 14

          1.   Applicability

               (paras. 78-79) . . . . . . . . . . . . . . . 14

          2.   Independence and impartiality

               (paras. 80-108). . . . . . . . . . . . . . . 15

               CONCLUSION

               (para. 109). . . . . . . . . . . . . . . . . 20

          3.   Remaining points at issue

               (para. 110). . . . . . . . . . . . . . . . . 20

               CONCLUSION

               (para. 111). . . . . . . . . . . . . . . . . 21

     D.   Recapitulation

          (paras. 112-113). . . . . . . . . . . . . . . . . 21

APPENDIX: DECISION OF THE COMMISSION AS TO THE

          ADMISSIBILITY OF THE APPLICATION. . . . . . . . . 22

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 1961 and resident in

Windsor. He was represented before the Commission by John Mackenzie,

a solicitor practising in Middlesex.

3.   The application is directed against the United Kingdom. The

respondent Government were represented by Mr. John Rankin, Agent,

Foreign and Commonwealth Office.

4.   The case mainly concerns the independence and impartiality of a

court-martial and of subsequent reviewing authorities and the fairness

of the proceedings before those bodies. The application also concerns

the reasonableness of the decisions reached and the sentencing options

available. The applicant invokes Article 6 para. 1 of the Convention.

B.   The proceedings

5.   The application was introduced on 28 May 1993 and registered on

22 June 1993.

6.   On 1 December 1993 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 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.

7.   The Government's observations were submitted on 19 April 1994

after two extensions of the time-limit fixed for this purpose.  The

applicant replied on 3 June 1994.

8.   Having transferred the matter to the Plenary Commission, on

7 December 1994 the Commission decided to hold an oral hearing. The

hearing was held on 23 February 1995. The Government were represented

by Mr. John Rankin, Agent, Foreign and Commonwealth Office,

Mr. P. Havers and Mr. N. May, both Counsel, and Ms. J. Murnane, Major-

General A. Rodgers and Air Vice Marshal G. Carlton, as advisers. The

applicant was represented by Mr. J. Mackenzie and Mr. G. Blade,

Solicitors.

9.   On 23 February 1995 the Commission declared the application

admissible.

10.   The text of the Commission's decision on admissibility was sent

to the parties on 8 March 1995 and they were invited to submit such

further information or observations on the merits as they wished. On

13 April 1995 the Commission granted the applicant legal aid for

representation in his case.

11.  On 13 March and 10 May 1995 the applicant submitted further

observations on the merits of the application. The Government submitted

observations on 24 April 1995 and some additional factual observations

by letter dated 26 May 1995.

12.  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

13.  The present Report has been drawn up by the Plenary Commission

in pursuance of Article 31 of the Convention and after deliberations

and votes, the following members being present: (present at the

hearing)

          MM.  S. TRECHSEL, President

               H. DANELIUS

               C.A. NØRGAARD

               G. JÖRUNDSSON

               A.S. GÖZÜBÜYÜK

               A. WEITZEL

               J.-C. SOYER

          Mrs. G.H. THUNE

          Mr.  F. MARTINEZ

          Mrs. J. LIDDY

          MM.  L. LOUCAIDES

               M.A. NOWICKI

               I. CABRAL BARRETO

               N. BRATZA

               J. MUCHA

               E. KONSTANTINOV

               D. SVÁBY

14.  The text of this Report was adopted on 5 September 1995 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.

15.  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.

     The Commission's decision on the admissibility of the application

is attached hereto as an Appendix.

16.  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

                       Background facts

17.  The applicant joined the British Army in 1980 when he became a

member of the Scots Guards. His service was due to terminate in or

around October or November 1992 when he would have received a

Resettlement Grant and, at the age of 60, an army pension.

18.  In 1982 the applicant took part in the Falklands campaign and he

was wounded. The applicant suffered extreme stress as a result of his

experiences.

19.  In 1987 the applicant sustained an injury during training for

service in Northern Ireland. He fell from a rope and broke his arm and

severely damaged his back. His back injury affected his performance

during training and he suffered from depression as a result.

20.  In or about 1990 the applicant, who had become a Lance Sergeant,

was serving with his regiment in Northern Ireland. On 29 July 1990,

after a heavy drinking session, he held members of his own unit at

pistol point and threatened to kill himself and certain of his

colleagues. He fired two shots which were not aimed at anyone and

subsequently surrendered the pistol. The applicant was then arrested.

                          Pre-hearing

21.  On 31 July 1990 an army psychiatrist ("Doctor A") examined the

applicant and stated that the applicant was responsible for his actions

at the time of the incident. However, it was a combination of a number

of stresses (including his back injury and posting in Northern Ireland)

together with the applicant's heavy drinking on the day that led to the

"almost inevitable" event. Doctor A recommended "awarding the minimum

appropriate punishment" to the applicant.

22.  The applicant was charged by the Convening Officer with eight

offences (six civilian and two military), pursuant to the Army Act

1955. The Convening Officer decided that the applicant should be tried

by general court-martial.

23.  In order to establish that the applicant was fit to stand trial,

he was examined, at the request of the army, by another army

psychiatrist ("Doctor B") who was a civilian consultant psychiatrist

with the Ministry of Defence since 1980. Her report, produced in

January 1991, confirmed that the applicant was fit to plead and knew

what he was doing at the time of the incident. However, his chronic

back problem (which meant he was frustrated and depressed by not being

fit for duty in his Northern Ireland posting) together with "his

previous combat stresses and a very high level of alcohol ... combined

to produce this dangerous behaviour."

24.  In March 1991 Doctor B produced another report, at the request

of the army, confirming that while it was clear what were the stresses

on the applicant, the nature of his reaction to them on the day in

question was to be explained by the applicant's experiences in the

Falklands war. She confirmed that similar incidents occurred in those

who had previously experienced Post Traumatic Stress Disorder ("PTSD")

and such incidents seemed to be a late feature of PTSD. Doctor B did

not clearly say that the applicant suffered from PTSD. She confirmed

that the consumption of alcohol on the relevant day was due to the

applicant's condition and not a cause of it.

25.  The Prosecuting Officer assigned to the case informed the

applicant's representative that Doctor B was unwilling to attend the

court-martial. That officer, by letter dated 24 June 1991, also

requested the applicant's representative to indicate which doctors he

might require to attend and noted, in particular, that Doctor B's

attendance might be required.

26.  In July 1991 the applicant brought a civil action against the

Secretary of State for Defence on the basis of the negligence of the

army medical authorities in failing to diagnose and treat his PTSD and

also (but forming a lesser part of this action) in respect of his back

injury received during training in 1987.

27.  In October 1991 a third psychiatrist ("Doctor C") produced a

report which clearly confirmed that the applicant was suffering from

PTSD as a result of the Falklands conflict and that the combination of

his frustration and depression due to his chronic back problem, his

posting in Northern Ireland and the consumption of alcohol triggered

the incident. In addition, Doctor C was of the opinion that the

applicant was psychotic, out of touch with reality and did not know

what he was doing at the time of the incident.

28.  By order dated 31 October 1991 the Convening Officer convened a

general court-martial. The Convening Officer was a Major General and

was General Officer Commanding, London District ("GOC").

29.  The court-martial comprised a President and four other members.

All were subordinate in rank to the Convening Officer. In addition, the

President was on the Convening Officer's staff in London District and

the remaining members served in units stationed within London District

which the Convening Officer commanded. None of the members was legally

trained:

     - The President was a Colonel in the Territorial Army ("TA") and

     part-time TA Adviser HQ, London District. He was appointed by

     name by the Convening Officer and was not a permanent president.

     - Member B was a Lieutenant Colonel (Royal Anglian) and his diary

     was administered by the London District. He was appointed by name

     by the Convening Officer and was a permanent president sitting

     in the capacity of ordinary member.

     - Member C was a Captain (2nd Battalion Coldstream Guards)

     stationed in the London District. His reporting chain was to his

     Officer Commanding, his Commanding Officer and the Brigade

     Commander, after which his report could, in exceptional

     circumstances, go to the GOC. He was a member of a footguard unit

     and the Convening Officer, as GOC, was responsible for all

     footguard units. He was appointed to the court-martial by his

     commanding officer.

     - Member D was a Major (2nd Battalion Grenadier Guards) stationed

     in London District. The Convening Officer, as GOC, was this

     member's second superior reporting officer. He too was a member

     of a footguard unit. He was appointed to the court-martial by his

     commanding officer.

     - Member E was a Captain (Postal and Courier Department, Royal

     Engineers (Women's Royal Army Corps)) appointed by her commanding

     officer. The Postal and Courier Depot is under the direct command

     of the Ministry of Defence and is administered by the London

     District.

30.  The assistant prosecuting and defending officers were both

officers from the 2nd Scots Guards stationed in the London District and

had the same reporting chain as Member C.

31.  The Judge Advocate ("J.A.") was a barrister and assistant Judge

Advocate with the Judge Advocate General's office.

32.  On 2 November 1991, though not fully cognisant of the opinion of

Doctor B at that time, the applicant's representatives made a written

request to the prosecuting authorities to ensure the appearance of

Doctor B at the court-martial. On 5 November 1991, the prosecutor

issued a witness summons requiring Doctor B's attendance.

                   The court-martial hearing

33.  On 11 November 1991 the applicant appeared before the general

court-martial. Doctor B did not appear in answer to the witness

summons. The applicant was told that Doctor B would not be available

and he claims that it was for this reason that he pleaded guilty to

seven of the charges on the charge sheet (2, 3, 4, 5, 6, 7 and 8).

Charges 2, 4 and 5 were charges of common assault (civilian offences),

charges 3 and 6 were charges of conduct to the prejudice of good order

and military discipline (a military offence) and charges 7 and 8 were

charges of threatening to kill (a civilian offence). The applicant's

representative did not request an adjournment (in light of Doctor B's

absence) nor object to any of the members of the court-martial hearing

the case.

34.  The applicant was also presented with a second charge sheet which

contained two charges of a disciplinary nature relating to the

consumption and storage of alcohol. He pleaded guilty to the former and

not guilty to the latter charge. The Prosecuting Officer did not offer

any evidence on the charges in respect of which the applicant pleaded

not guilty and, having indicated the Convening Officer's concurrence

before the court-martial, did not pursue these remaining charges.

35.  At the beginning of the hearing the applicant put before the

court-martial the above described reports prepared by Doctors A, B and

C. Doctor C was called by the applicant to give evidence in relation

to PTSD. He confirmed in direct evidence his view that the applicant

suffered from PTSD, that the effect on the applicant of the Falklands

war was the main reason for his behaviour, that the applicant was not

responsible for what he was doing at the time of the incident and that

the applicant was in need of counselling for what was a well recognised

disorder. During cross-examination Doctor C stated that this was the

first time he had dealt with battle-related PTSD.

36.  The applicant's representative urged the court-martial that, in

view of the fact that the applicant was suffering from PTSD at the time

of the incident and of the little likelihood of his re-offending, the

applicant should be allowed to complete the few remaining months of his

service and leave the army with his pension intact and a minimal

endorsement on his record.

37.  The applicant claims that during the trial the J.A. was hostile

to him. In the first place, the Prosecuting Officer introduced, under

rule 71(3)(a) of the Army Rules of Procedure (1972), mitigating

evidence as to the applicant's record since the incident. Evidence was

given to the effect that the applicant's conduct in the year since the

offence had been described by his company commander as impeccable and

that his commanding officer wished to retain the services of the

applicant in his battalion. The J.A. interrupted and commented as

follows:

     "That is the view of the Commanding Officer, who is aware, is he,

     that the accused has been found guilty by this court of two

     offences of making a threat to kill members of his unit, and the

     Commanding Officer wishes to retain him in the Battalion does

     he?".

38.  It is the applicant's recollection that the J.A. snapped a pencil

in irritation while speaking as above.

39.  Secondly, Doctor C gave evidence to the effect that the

applicant, while suffering from PTSD, was not suffering from any other

form of mental illness. The J.A. interrupted this evidence to ask for

a pause to make a note of this point.

40.  The applicant was sentenced to two years' imprisonment, to

reduction to the rank of guardsman and to dismissal from the army. No

reasons were given for the level of the sentence. The applicant thereby

suffered a reduction in his pension entitlements.

                         Post-hearing

41.  The applicant petitioned the Confirming Officer (who was the same

person as the Convening Officer) for a reduction in sentence. The

Confirming Officer received advice from the Judge Advocate General's

office and, on 16 December 1991, the applicant was informed that the

sentence had been upheld.

42.  The applicant, who had been under close arrest since the morning

before the court-martial hearing, was removed on 18 November 1991 to

a Military Correctional Training Centre (a military prison) and was

transferred from there to a civilian prison on 21 December 1991.

43.  The applicant petitioned the first Reviewing Authority (the

Deputy Director General of Personal Services as delegate of the Army

Board) concerning his sentence. That officer, who was not legally

qualified, also obtained advice from the Judge Advocate General's

office. By letter dated 22 January 1992, the applicant was informed

that this petition had been rejected.

44.  The applicant then petitioned the second Reviewing Authority, the

Director General of Personal Services (also not legally qualified) as

delegate of the Army Board, in relation to his sentence. This petition

was rejected on 10 March 1992.

45.  The applicant was not initially informed of the identity of the

Confirming Officer or of the Reviewing Authorities, though the

Government submit that he subsequently requested the identity of one

Reviewing Authority and was given this information. Neither was he

informed of the fact or nature of the advice obtained from the Judge

Advocate General's office nor was he given reasons for the decisions

confirming his sentence and rejecting his petitions.

46.  By application dated 10 March 1992, the applicant applied to the

Divisional Court of the High Court for leave to challenge, by judicial

review, the validity of the findings of the court-martial. In this

application, the applicant challenged his sentence as being excessive,

alleged that the proceedings were contrary to the rules of natural

justice and further alleged that the J.A. was hostile to him during the

court-martial. On 14 December 1992 the Divisional Court refused leave

on the basis that the conduct of the court-martial had been entirely

in accordance with the Army Act 1955 and rejected the applicant's

submissions as to the attitude of the J.A. In particular, the

Divisional Court found that the J.A.'s interventions were appropriate

and noted that the applicant's representative had accepted at the

court-martial hearing that the intervention by the J.A. during Doctor

C's evidence was correct and appropriate.

47.  A report dated 16 January 1994 was subsequently prepared by

Doctor B for the purposes of the civil action against the Secretary of

State confirming her previous opinion, though now clearly labelling the

effect of the Falklands conflict on the applicant as PTSD.

48.  In March 1994 the applicant's civil action was settled by the

Secretary of State for Defence who paid the applicant £100,000 together

with the applicant's costs without an admission of liability. The

settlement did not differentiate between the claim in respect of PTSD

and the back injury. The applicant claims that this was an effective

acknowledgement by the Secretary of State for Defence that the

applicant suffered from PTSD on the day of the incident because, prior

to the settlement, the applicant was examined by a psychiatrist acting

for the Secretary of State, who offered the applicant treatment for

PTSD.

B.   Relevant domestic law and practice

                            General

49.  The law and procedures in respect of courts-martial for army

personnel are contained mainly in the Army Act 1955 ("the 1955 Act"),

in the Rules of Procedure (Army) 1972 ("the 1972 Rules") and the

Queen's Regulations (1975).

50.  Under section 70(1) of the 1955 Act, "civilian" offences are also

offences under the 1955 Act. In such cases, where the charges are

triable by the civilian courts and by court-martial, it is a matter of

agreement that the final decision on jurisdiction lies with the

civilian authorities but that the military authorities are only

required to report certain cases which are likely to be retained by the

civilian authorities (for example, if the relevant incident had a

civilian involvement). Therefore, even if the charges involve civilian

and army offences, in many cases army personnel can be tried by the

army authorities on such charges under the 1955 Act.

51.  Depending on their gravity, charges against army law can be tried

by district, field or general court-martial. A general court-martial

must consist of a President (normally a brigadier or colonel in the

army) and at least four other officers in the army. A Judge Advocate

("the J.A.") must also be appointed to a general court-martial, though

not as a member. A general court-martial will be convened by a

Convening Officer who is normally a major-general in the army. The

President of the court-martial must be appointed by name by the

Convening Officer, and the remaining members may be appointed by name

or by the Convening Officer requiring a particular commanding officer

to nominate an officer of the required rank.

52.  Each member of the court-martial must 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."

                     The Convening Officer

53.  The Convening Officer must be a "Qualified Officer" (meaning he

must be at least a field officer or of a corresponding rank) who is in

command of a body of the regular forces or of the command within which

the person to be tried is serving. The Qualified Officer can delegate

this power to an officer under his command but not to an officer below

the rank of colonel.

54.  The Convening Officer is not responsible for the decision to

charge the accused nor for the investigation of those charges. However,

once an accused's commanding officer has decided that the accused

should be tried by court-martial, the Convening Officer assumes

responsibility for the case.

55.  He is empowered, inter alia, to direct upon what charges the

accused is to be tried and to decide the wording of those charges. The

Convening Officer decides on the type of court-martial required and

convenes a court-martial for each case. The convening order specifies,

inter alia, the date, place and time of the trial, the name of the

President and the details of the other members. The Convening Officer

ensures that a J.A. is appointed by the Judge Advocate General's

office, or failing such appointment, appoints the J.A. himself. He also

appoints, or directs a commanding officer to appoint, the Prosecuting

Officer from, in serious cases, Army Legal Services who is

professionally answerable to the Director of Army Legal Services.

56.  The Convening Officer sends an abstract of the evidence to the

Prosecuting Officer and to the J.A., and may indicate to the

Prosecuting Officer the passages of the evidence which may be

inadmissible. He procures the attendance at trial of all witnesses to

be called for the prosecution. When charges are withdrawn the Convening

Officer's consent is normally obtained though it is not necessary in

all cases and when a plea to a lesser charge is made by the accused it

cannot be accepted without the consent of the Convening Officer.

57.  The Convening Officer must also ensure that the accused has a

proper opportunity to prepare his defence and proper contact with,

inter alia, the defence witnesses. The Convening Officer must see that

the accused is informed that he may require the attendance of defence

witnesses and must order the attendance of witnesses "reasonably"

requested by the defence. No other authority has this power. Witnesses

not subject to military law may be summoned to attend the trial by

order of the Convening Officer. The accused must also be informed by

the Convening Officer if the prosecutor is legally qualified so that

the accused has the opportunity to obtain his own legal representation.

58.  The court-martial can be dissolved by the Convening Officer

either before or during the trial when required in the interests of the

administration of justice (section 95 of the 1955 Act). In addition

Queen's Regulations (para. 6.129) state that a Convening Officer can

also comment on the "proceedings of a court-martial which require

confirmation" and that those remarks will not form part of the record

of the proceedings, will normally be communicated in a separate minute

to the members of the court but in an exceptional case "where a more

public instruction is required in the interests of discipline", the

Convening Officer's comments may be made known in the orders of the

command.

59.  The Convening Officer also usually acts as Confirming Officer.

          Judge Advocate General and Judge Advocates

60.  The current Judge Advocate General was appointed to the office

by the Queen in February 1991 for five years. He is answerable to the

Queen and is removable from office by the Queen for inability or

misbehaviour.

61.  A number of assistant and deputy J.A.'s are appointed to the

Judge Advocate General's office by the Lord Chancellor and they must

have at least seven and five years experience respectively as an

advocate or barrister. The J.A. does not swear an oath upon appointment

and is normally exempted from doing so at an individual court-martial.

The J.A. is removable only by the Lord Chancellor for inability or

misbehaviour but is responsible for the proper discharge of his

functions to the Judge Advocate General. The Judge Advocate General and

the J.A.'s receive, out of money provided by parliament, such

remuneration as the Lord Chancellor may determine.

62.  The Judge Advocate General advises the Secretary of State for

Defence on all matters touching and concerning the office of Judge

Advocate General and this advice includes advice on military law and

the procedures and conduct of the court-martial system. He also advises

the confirming and reviewing authorities on post-trial matters and in

this respect he may, if necessary, give some general information as to

the purpose and function of the review, the lawfulness of a particular

finding or sentence, the range of sentences appropriate to a particular

offence based on precedent, as to how the Crown Court might consider

a similar offence and as to specific service aspects of the offence.

He is also responsible for superintending the administration of army

law and retaining the records of courts-martial. He is a legal adviser

to the Ministry of Defence and the Government state that it is not

inaccurate to describe the relationship as one of lawyer and client.

63.  A deputy or assistant J.A. is appointed to a court-martial by the

Judge Advocate General's office or by the Convening Officer  and, once

so assigned, the J.A. must provide on request an opinion on any point

of law or procedure to the prosecution and the accused either outside

of or during the court-martial. He advises on all questions of law and

procedure that arise during the hearing and the court-martial must

accept his advice unless it has weighty reasons for not doing so. On

a number of specified matters, on which he is consulted by the court-

martial, the opinion of the J.A. must be followed. The J.A. is also

responsible for advising the court-martial as to any defect in its

constitution or in the charge sheet.

64.  At the opening of the trial it is the practice for the J.A. to

satisfy himself that none of the members of the court-martial either

know the accused or have heard anything about the charges. At the close

of the trial, the J.A. sums up the relevant law and evidence. If during

the court-martial's deliberations on the charges (at which the J.A.

cannot be present) further advice is required, then the court-martial

must receive that advice in open court. The J.A. can, however, advise

the court-martial in private on the general principles governing the

approach to sentencing. The J.A. is not a member of the court-martial

and has no vote in the decision on the charges or on the sentence.

65.  Finally, the J.A. must ensure (in conjunction with the President)

that the accused does not suffer any disadvantage during the hearing.

Where an accused pleads guilty the J.A. should explain to the accused

the nature of the charges, the resulting difference in procedures and

the full import of his plea. If the accused or his representatives

subsequently make submissions that might imply that the accused is not

guilty of the charges, the J.A. has a duty to satisfy the court-martial

that the accused and his representative are not under any

misapprehension as to the plea of guilty, and that the accused's clear

admission has addressed all elements of all charges.

                   The court-martial hearing

66.  An objection may be made at the start of a hearing to a member

of the court-martial. Objections must be to individual members and not

to the court-martial as a whole. Such an objection is considered in

closed court (rule 27 of the 1972 Rules).

67.  When the applicant pleads guilty, the Prosecuting Officer

outlines the facts and must then, pursuant to Rule 71(3)(a) of the 1972

Rules, put in evidence any circumstance which may have made the accused

more susceptible to the commission of the offence by way of mitigation.

The defence then makes a plea in mitigation and can call witnesses in

mitigation of punishment pursuant to rule 71(5)(a) of the 1972 Rules.

The members of the court-martial retire (with the J.A.) to consider the

sentence, decide, return and announce the sentence. There is no

provision for the giving of reasons by the court-martial for its

decision.

                          Sentencing

68.  Certain types of sentences are not available to a court-martial

even if the charges relate to civilian offences. A court-martial

cannot, inter alia, suspend a prison sentence, issue a probation order

or sentence to community service.

69.  The level of sentencing power depends on the type of court-

martial that is convened. A district court-martial is more restricted

in terms of sentencing than a general court-martial. The maximum

sentence laid down by the 1955 Act and civilian law, for the charges

on the first charge sheet in respect of which the applicant pleaded

guilty, are as follows:

- Charges 2, 4 and 5: six months' imprisonment or a fine

- Charge 7: 10 years' imprisonment

- Charges 3 and 6: imprisonment not exceeding two years.

70.  The court-martial must award one global sentence in relation to

all the offences in respect of which the accused is found guilty. The

opinions of members on sentence are given orally in closed court and

these opinions shall be given in ascending order of seniority (rule 74

of the 1972 Rules). A decision can be reached by a majority.

            Confirmation and Post-hearing reviews

71.  The court-martial's findings are not treated as a finding of

guilt or on sentence until confirmed by the Confirming Officer. The

confirmation procedure is automatic but if a petition is presented

prior to the decision of the Confirming officer it will be considered.

Prior to confirmation the Confirming Officer must consult the Judge

Advocate General's office for advice. A different J.A. gives this

advice when the Confirming Officer is dealing with a sentence of a

general court-martial. The Confirming Officer can withhold

confirmation, substitute a sentence, remit in whole or in part any

punishment, commute a punishment for one or more lesser punishments and

postpone the carrying out of the sentence.

72.  Once the Confirming Officer has confirmed the sentence, the

defendant can petition the Reviewing Authorities. A petitioner can have

more than one review. The relevant Reviewing Authorities were the

Queen, the Army Board as delegate of the Defence Council, the Deputy

Director and the Director General of Personal Services (Army) at the

Ministry of Defence as delegate of the Army Board and any officer

superior in command to the Confirming Officer. The Reviewing

Authorities may consult the Judge Advocate General's office for advice;

they have 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.

73.  A petitioner is not informed, when making the relevant petition,

of the identity of the Confirming Officer or of the Reviewing

Authorities. No statutory or formalised procedures are laid down for

the conduct of the post-hearing reviews and no reasons are given for

decisions delivered subsequent to the post-hearing reviews. Neither the

fact that advice has been received nor the nature of the advice

received from the Judge Advocate General's office by these bodies is

disclosed to a petitioner.

74.  A Courts-Martial Appeal Court (which is made up of civilian

judges) can hear appeals from a court-martial but there is no provision

for such an appeal against sentence when the accused pleads guilty.

III. OPINION OF THE COMMISSION

A.   Complaints declared admissible

75.  The Commission has declared admissible the applicant's complaints

that the court-martial, the Confirming Officer and the Reviewing

Authorities lacked independence and impartiality, that the proceedings

before those bodies were unfair, that their decisions were unreasonable

and that the sentencing options available were limited.

B.   Points at issue

76.  Accordingly, the points at issue in the present case are whether

there has been a violation of Article 6 para. 1 (Art. 6-1) of the

Convention:

     - as regards the independence and impartiality of the court-

     martial, the Confirming Officer and the Reviewing Authorities;

     and

     - as regards the fairness of the proceedings before the above-

     mentioned bodies as well as the reasonableness of the decisions

     of and the sentencing options available to those bodies.

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

77.  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... ."

1.   Applicability

78.  The Government argue that Article 6 para. 1 (Art. 6-1) does not

apply to the post-hearing proceedings as these proceedings are best

understood as pleas in mitigation rather than appeals forming part of

the overall procedure which must satisfy Article 6 (Art. 6) of the

Convention.

79.  The Commission recalls that the determination of a criminal

charge within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention includes, not only the determination of the guilt or

innocence of the accused, but also the determination of his sentence

(cf. No. 8289/78, Dec. 5.3.80, D.R. 18 p. 166). The Commission also

notes that the Confirming Officer and the Reviewing Authorities had

submissions and advice to consider in relation to the appropriate

sentence to be awarded and had the power to significantly change that

sentence. Accordingly, the Commission is satisfied that these

proceedings involved the determination of the applicant's sentence and,

as such, the determination of a criminal charge against him.

2.   Independence and impartiality

80.  The applicant submits that the organisation and internal

structure of the court-martial and the post-hearing reviewing

authorities meant that they were not, or were not seen to be,

independent or impartial.

81.  In this respect, the applicant refers, inter alia, to the

extensive powers of the Convening Officer before, during and after a

court-martial hearing. He claims that there is a strong inference that

the Convening Officer is the prosecuting authority and submits that the

members of the court-martial were military personnel subordinate to and

otherwise closely related to the Convening Officer. He contends that

there are few guarantees against outside pressures because, inter alia,

the appointment of the members is for a specific court-martial only,

the members return to their military duties after the court-martial,

the Judge Advocate ("J.A.") is closely linked to the Ministry of

Defence and the J.A. has, in any event, no vote in decisions of the

court-martial. The Confirming Officer is normally the same person as

the Convening Officer and the Reviewing Authorities were members of the

armed forces with no legal training who were advised by the Judge

Advocate General's office.

82.  The applicant also submits that, in addition to the above

structural problems, his defence of Post Traumatic Stress Disorder

raised a military issue of some importance and sensitivity which the

military authorities were unwilling to accept.

83.  The applicant further submits that the J.A.'s hostility to him

during the court-martial hearing was indicative of his lack of

impartiality.

84.  The Government, in the first place, submit that it should be

borne in mind that the special disciplinary requirements flowing from

the vital duties of the armed forces require a separate code of

military law and, in turn, a separate military judicial system.

85.  Against this background, the Government refer to the many

guarantees in place to guard against outside pressures on the members

of the court-martial. The members must take an oath and none are

subject to instruction from, or accountable to, a higher authority as

regards their functions in the court-martial. None of the members can

be removed on an individual basis (except after a successful challenge

at the commencement of a hearing) and the entire court-martial can be

dissolved only in the interests of the administration of justice by the

Convening Officer, which is an enhancement of the protections

available. The decisions of the court-martial are by a majority and the

members do not disclose the nature of their votes to third parties. The

convening of the court-martial on an ad hoc basis is a guarantee

against outside influence because the members have no interest in

renewing a term of office.

86.  The Government also refer to many structural and procedural

elements which indicate the independent functioning of the court-

martial and of the post-hearing reviewing authorities. In this respect

the Government contend, inter alia, that the prosecuting authority was

Army Legal Services from where the Prosecuting Officer was appointed

and not the Convening Officer. The Convening Officer assumes

responsibility for the setting up of the court-martial and his work in

this respect is largely administrative in nature. As regards the make-

up of the court-martial, the Government point out that the members were

chosen from diverse regiments, only two were appointed by name by the

Convening Officer and none was immediately subordinate to or had a

direct prior personal relationship with the Convening Officer. The

applicant, though he could have, did not object to the constitution of

the court-martial.

87.  The Government also emphasise the crucial role played by the

J.A., a civilian judicial officer independent of the armed forces, in

ensuring a fair trial and the role of the Judge Advocate General's

office in advising at the confirming and reviewing stages.

88.  Furthermore, the Government do not accept that the applicant has

demonstrated any subjective bias on the part of the J.A. and point out

that the Divisional Court did not accept this either. Moreover, the

Government dispute that the applicant's defence of Post Traumatic

Stress Disorder raised an issue of army policy and reject any assertion

by the applicant that this matter affected the proceedings as

unfounded, untrue and an attack on the integrity of the members of the

court-martial.

89.  As regards the applicant's complaint as to the impartiality of

the  members of the court-martial, the J.A., the Confirming Officer and

the Reviewing Authorities, the Commission recalls that for the purposes

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

impartiality must be determined according to a subjective test, that

is on the basis of a personal conviction of a particular judge in a

given case, the personal impartiality of a judge being assumed until

there is proof to the contrary (Eur. Court H.R., Padovani judgment of

26 February 1993, Series A no. 257-B, p. 20, paras. 25-26).

90.  In addition, an objective test must also be applied, that is

ascertaining whether sufficient guarantees exist to exclude any

legitimate doubt in this respect. It must be determined whether there

were ascertainable facts, particularly of internal organisation, which

might raise doubts as to impartiality. In this respect, even

appearances may be important: what is at stake is the confidence which

the court must inspire in the accused in criminal proceedings and what

is decisive is whether the applicant's fear as to a lack of

impartiality can be regarded as objectively justifiable (Eur. Court

H.R., De Cubber judgment of 26 October 1984, Series A no. 86, p. 14,

para. 26 and Padovani judgment, loc. cit., p. 20, paras. 25 and 27).

91.  In the present case the Commission does not consider that the

applicant has demonstrated that the members of the court-martial, the

J.A., the Confirming Officer or the Reviewing Authorities were

personally or subjectively biased against him. In this respect, the

Commission notes that the Divisional Court rejected the allegations

made by the applicant about the conduct of the J.A. during the court-

martial hearing.

92.  As to whether these bodies satisfy the objective test of

impartiality, the Commission recalls that this concept and that of

independence are frequently difficult to dissociate (Eur. Court H.R,

Holm judgment of 25 November 1993, Series A. no. 279-A, p. 14,

para. 30).

93.  Furthermore, the Commission also recalls that in certain cases

the link between the concepts of independence and objective

impartiality are such that if a tribunal fails to offer the requisite

guarantees of independence it will not satisfy the test for objective

impartiality (Demicoli v. Malta, Comm. Rep. 15.3.90, para. 42, Eur.

Court H.R., Series A no. 210, p. 27). The Commission finds that such

a link exists in the present case, concerned as it is with the issue

of the structure and internal organisation of the court-martial system.

94.  The Commission recalls the established criteria to which the Court

has regard in assessing the independence of tribunals, in particular

from the parties. These include, the manner of appointment of members,

the duration of their terms of office, the guarantees afforded by the

procedure against outside pressures and whether the body presents an

appearance of independence (see, for example, Eur. Court H.R. Le

Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A

no. 43, p. 24, para. 55 and Campbell and Fell judgment of 28 June 1984,

Series A no. 80, para. 78, p. 39-40).

95.   Applying the above principles of assessment of independence to

the court-martial, the Commission has considered the questions of what

person or body constitutes the prosecuting authority and the

independence of the members of the court-martial from that authority.

This examination necessarily involves a consideration of the manner of

appointment of the members and the composition of the court-martial.

96.   The applicant contends that there is a strong presumption that

the Convening Officer was the prosecuting authority. The Government

contend that since the Prosecuting Officer is appointed from Army Legal

Services and the Convening Officer's work is administrative in nature,

the prosecuting authority is Army Legal Services and not the Convening

Officer.

97.   The Commission recalls that the Convening Officer is empowered

to direct upon what charges the accused is to be tried, to decide the

wording of those charges, to decide on the type of court-martial

required and to convene the court-martial. He appoints the members of

the court-martial and appoints, or directs a commanding officer to

appoint, the Prosecuting Officer. In the absence of the appointment of

a J.A. by the Judge Advocate General's office, the J.A. is appointed

by the Convening Officer. When sending an abstract of the evidence to

the Prosecuting Officer, the Convening Officer may indicate to the

Prosecuting Officer the passages of the evidence which may be

inadmissible. He procures the attendance at trial of all witnesses to

be called for the prosecution and those witnesses "reasonably"

requested by the defence.

98.  Moreover, during the trial, when charges are not to be pursued,

the Convening Officer's consent is normally obtained (as it was in the

present case) though it is not necessary in all cases. However, when

a plea to a lesser charge is made by the accused, it cannot be accepted

without the consent of the Convening Officer. Furthermore, the

Convening Officer can also comment on the "proceedings of a court-

martial which require confirmation" and those remarks will not normally

form part of the record of the proceedings and will usually be

communicated in a separate minute to the members of the court (Queen's

Regulations (para. 6.129)).

99.  The Commission therefore considers that, whether or not the

Convening Officer is as a matter of fact the prosecuting authority, he

is seen to be central to the prosecution of a case by court-martial.

100.  As to the independence of the members of the court-martial from

the Convening Officer, the Commission notes that there is some dispute

between the parties as to the relationship between those members and

the Convening Officer. However, the following is undisputed. All

members were serving army officers, subordinate in rank to the

Convening Officer. In addition, as members of units in London District,

all members were under the overall command of the Convening Officer in

his capacity as the General Officer Commanding, London District. Two

members were similarly under the overall command of the Convening

Officer by virtue of their membership of footguard units. Moreover, one

of the members had the Convening Officer as his second superior

reporting officer. Furthermore, the President was personally selected

by the Convening Officer and was on the Convening Officer's staff in

London.

101.  Furthermore and as noted above, not only does the Convening

Officer also normally act as Confirming Officer, but the court-

martial's findings do not have any effect until confirmed by the

Confirming Officer (see para. 71 above). Even assuming that in these

circumstances the court-martial, rather than the Confirming Officer,

is to be properly regarded as the decision making body, this dual role

of the Convening Officer gives further cause to doubt the independence

of the court-martial from the prosecuting authority.

102.  In this respect, the safeguard most strongly relied upon by the

Government is the presence during the court-martial of the J.A. whose

principal duty is to ensure that the accused has a fair trial and whose

role is described as being "crucial in the conduct of a court martial".

The applicant impugns the independence of both the Judge Advocate

General's office and the J.A. submitting that the Judge Advocate

General is a legal adviser to the Ministry of Defence and that, since

the J.A. is answerable to the Judge Advocate General, the J.A. is also

closely linked to the Ministry of Defence. The Government counter this

by arguing that the Judge Advocate General's office fulfils two

separate roles - a judicial role through the deputy and assistant

J.A.'s who assist the court-martial and an advisory role (creating a

lawyer/client relationship) with, inter alia, the Ministry of Defence.

103.  However, the Commission considers that, even assuming that this

connection between the Judge Advocate General's office and the Ministry

of Defence does not raise a reasonable doubt as to the independence of

that office, and consequently, of the J.A., the involvement of the J.A.

in the court-martial is not sufficient to dispel any doubt as to the

court-martial's independence. In the first place, the J.A. is not a

member of the court-martial. Secondly, he does not take part in the

deliberations on the charges and any advice requested, as to the

general principles governing the approach to sentencing, is given in

private.

104.  The Government argue that the absence of a civilian judicial

member does not of itself cast doubt on the independence of the court-

martial and refer to the Engel judgement (Eur. Court H.R., Engel

judgment of 6 June 1976, Series A no. 22) where the Netherlands Supreme

Military Court was considered by the Court to constitute an independent

tribunal. However, the Commission recalls that in the Engel case, the

tribunal in question had to include as members two civilian jurists who

were justices of the Supreme Court or the Court of Appeal and who were

appointed by the Crown (Engel judgment loc. cit., p. 13, para. 30). By

contrast the court-martial in the present case contained no judicial

members, no legally qualified members and no civilian members.

105.  As to the guarantees against outside influence to which the

Government refer, the Commission is not satisfied that the requirement

to take the oath, important though it may be, could of itself dispel

doubts as to a lack of independence of the court-martial. While the

Government contend that the members are free from outside instruction,

the Commission notes the power of the Convening Officer, referred to

above, to comment on the proceedings of a court-martial and to

communicate such remarks to the members of the court-martial. The power

of the Convening Officer to dissolve the court-martial either before

or during the trial pursuant to section 95 of the Army Act 1955 is also

noted in this context. Furthermore, the submission by the Government

that the convening of courts-martial on an ad hoc basis enhances their

independence is inconsistent with the constant view of the Court that

an established term of office is an important guarantee of a tribunal's

independence (see, for example, Le Compte, Van Leuven and De Meyere,

loc. cit., p. 24-25, para . 57). In the present case, while one of the

members was a permanent president, the remaining members went back to

their ordinary military duties at the end of the applicant's court-

martial.

106.  Accordingly, the Commission considers that the applicant's fears

that the court-martial lacked independence from the prosecuting

authority in the case could be regarded as objectively justified

particularly in view of the nature and extent of the Convening

Officer's roles, the composition of the court-martial and its ad hoc

convening. The Commission therefore finds that the court-martial did

not constitute an independent tribunal, or consequently an impartial

tribunal, within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention.

107.  The question remains as to whether the defect in the court-

martial was remedied by a form of subsequent review by a judicial body

that afforded all the guarantees required by Article 6 para. 1 (Art. 6-

1) of the Convention. The Commission finds that, where (as in the

present case) the accused pleads guilty and cannot appeal to the

Courts-Martial Appeal Court, there is clearly no such remedy and the

Government do not suggest that there is (see paragraph 78 above). In

this context the Commission notes that the Confirming Officer was the

same person as the Convening Officer and that the Reviewing Authorities

were army officers (the second of whom was the superior of the first)

fulfilling their duties as delegates of the Army Board. The lack of

effectiveness of the post-hearing reviews is further emphasised by the

secrecy surrounding those reviews (including the fact and nature of the

advice given by the Judge Advocates General's office) and the

applicant's inability to participate in those reviews in any meaningful

manner.

108.  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 (cf. Mitap and Müftüoglu

v. Turkey, Comm. Report 8.12.94, para. 109).

     CONCLUSION

109.  The Commission concludes, unanimously, that 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.

3.   Remaining points at issue

110.  The Commission notes the applicant's further specific complaints

as to the fairness of the court-martial proceedings and subsequent

reviews together with his additional complaints in relation to the

reasonableness of the decisions taken against him and in relation to

the sentencing options available. In view of the above conclusion, the

Commission finds that it is unnecessary to examine these complaints

save that the Commission observes that it is, in any event, outside its

competence to examine the reasonableness of the decisions taken against

the applicant.

     CONCLUSION

111.  The Commission concludes, unanimously, that it is unnecessary

to examine the further specific complaints made by the applicant as to

the fairness of the court-martial proceedings and subsequent reviews

or his additional complaints in relation to the reasonableness of the

decisions taken against him and in relation to the sentencing options

available.

D.   Recapitulation

112.  The Commission concludes, unanimously, that 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. 109).

113.  The Commission concludes, unanimously, that it is unnecessary to

examine the further specific complaints made by the applicant as to the

fairness of the court-martial proceedings and subsequent reviews or his

additional complaints in relation to the reasonableness of the

decisions taken against him and in relation to the sentencing options

available (para. 111).

Secretary to the Commission          President of the Commission

       (H.C. KRÜGER)                       (S. TRECHSEL)