FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 40894/98 by Phillip DAVIES against the United Kingdom

The European Court of Human Rights (Fourth Section) , sitting on 14 May 2002 as a Chamber composed of

Mr M. Pellonpää , President , Sir Nicolas Bratza , Mr A. Pastor Ridruejo , Mr J. Makarczyk , Mrs V. Strážnická , Mr R. Maruste , Mr S. Pavlovschi , judges ,

and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 22 March 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Phillip Davies, is a British national, born in 1975 and living in Hartlepool. He is represented before the Court by Silver Savory Smith, a firm of solicitors practising in Cambridge.  The respondent Government are represented by their Agent, Mr. C. Whomersley of the Foreign and Commonwealth Office.

A. The circumstances of the case

The facts of the case, as submitted by the applicant and agreed by the Government, may be summarised as follows.

At the time of the events in question the applicant was a soldier in the British Army, holding the rank of Craftsman in the 39 th Engineer Regiment of the Royal Electrical and Mechanical Engineers. In September 1997 the applicant’s regiment were on a tour of duty in Northern Ireland. On the evening of 11 September 1997 an altercation took place in a transit accommodation block between the applicant and another soldier, witnessed by three others. Statements were taken from the witnesses, but these were subsequently destroyed in view of the fact that the regiment was shortly to return to England where the incident would be investigated by the military police.

Following the investigation, the applicant was charged with assault occasioning actual bodily harm, contrary to section 70 of the Army Act 1955 (see below). He pleaded not guilty on grounds of self-defence. His case was heard before a district court martial held at Colchester between 29 September and 3 October 1997. The applicant was legally represented at, and subsequent to, the hearing. The court martial consisted of three military officers and an Assistant Judge Advocate General. The applicant was found guilty and, on 3 October 1997, he was sentenced to eleven months’ detention and ordered to undergo stoppages of pay until he had made good the sum of GBP 600 by way of compensation to the victim of the assault. A petition for review of the finding and sentence of 22 October 1997 was refused by the Defence Council on 4 December 1997.

The applicant applied for leave to appeal against conviction to the Courts-Martial Appeal Court on 23 December 1997, on the grounds that the trial judge had been wrong to allow the trial to continue given the destruction of the witness statements, and that the conviction was therefore unsafe and unsatisfactory. Leave to appeal against conviction was granted by a single judge on 10 February 1998. The appeal was dismissed on 11 May 1998.

Between his conviction and the hearing of his appeal, the applicant was detained in Colchester Military Corrective Training Centre. Under the Army Act 1955 as amended by the Armed Forces Act 1996 (which came into force on 1 April 1997), neither the district court martial nor the Defence Council nor the Courts-Martial Appeal Court had any power to grant the applicant bail pending the determination of his appeal.

B. Relevant domestic law

Section 70 of the Army Act 1955 (“the 1955 Act”) renders offences under ordinary criminal law committed by members of the armed services offences against military law. Offences against military law are tried by way of court martial.

Section 113 of the 1955 Act (as amended by the armed Forces Act 1996) provides (as relevant):

“113.(1) Where a court-martial has found the accused guilty of any offence, the accused may ... present a petition to the Defence Council against finding or sentence or both.

(2) The reviewing authority shall ... review any finding of guilt made, and sentence passed, by a court martial. ...

(5) For the purposes of this Act the reviewing authority is -

(a) the Defence Council; or

(b) any officer to whom all or any of the powers of the Defence Council                           as reviewing authority may be delegated by the Defence Council.”

Under section 120 of the 1955 Act, a court martial on passing sentence, or the reviewing authority acting under section 113 above, may order that a sentence be suspended. Under section 118(2) of the Act, where a sentence has been suspended before committal to detention it shall not begin to run until the suspension is determined.

Under section 120A of the 1955 Act, a court martial on passing sentence, or the reviewing authority acting under section 113 above, may alternatively order that a sentence be postponed until the end of a period specified in the order. In the event of such an order, the sentence continues to run from the date on which it was pronounced, but does not have effect throughout the period of postponement.

Section 19 of the Criminal Appeals Act 1968 provides the Court of Appeal with a power to grant bail to a civilian appellant in a criminal case pending the hearing of his appeal.

COMPLAINT

The applicant complains that the absence of any legal discretion to grant him bail pending the outcome of his appeal amounts to a violation of his right to liberty under Article 5 § 1(a) of the Convention. He complains that the absence of such a discretion is discriminatory contrary to Article 14 of the Convention, given the Court of Appeal’s discretion to grant bail pending criminal appeals in the civilian context. He also complains under Article 13 of the Convention.

THE LAW

1. Victim status

The Government submit that the applicant cannot be regarded as a “victim” of any violation of the Convention for the purposes of Article 34, which provides (as relevant):

“The Court may receive applications from any person ... claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. ...”

They point to the fact that the applicant’s appeal was dismissed by the Courts-Martial Appeal Court and argue that, as a result, it is immaterial to him whether or not bail could have been granted pending the outcome of that appeal. Since the appeal was dismissed, the applicant would in any event have served the same sentence.

The Court notes that the applicant’s complaints centre around the fact that, in contrast to civilian cases, no authority had power to grant him bail before his appeal had been determined by the Courts-Martial Appeal Court. It considers that the eventual decision at appeal cannot affect the applicant’s status as a “victim” during the period in question since he can claim to have been directly affected by the absence of any power to grant bail throughout that period.

The Court therefore rejects the Government’s submissions as to “victim” status under Article 34 of the Convention.

2. Exhaustion of domestic remedies

The Government submits also that the failure by the applicant to seek suspension or postponement of his sentence under sections 120 and 120A respectively of the 1955 Act constitutes a failure to exhaust domestic remedies for the purposes of Article 35 § 1 of the Convention, which provides (as relevant):

“1. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, ... .”

They highlight the fact that one ground upon which the court martial or the reviewing authority could have exercised its powers of suspension or postponement in the applicant’s case was the existence of a pending appeal to the Courts-Martial Appeal Court. They observe that the applicant, who was represented by a lawyer both at and following his court martial, did not apply to the court martial or the Defence Council in its role as reviewing authority for suspension or postponement of sentence pending consideration of his appeal. The Government comment that any refusal of such an application would have been susceptible to judicial review.

The Court notes that neither suspension nor postponement of sentence under the 1955 Act would have been strictly identical to a grant of bail. However, it considers that either measure offered the applicant a potential remedy against his essential complaint, which is to the effect that no authority had power to release him from detention while his appeal was pending. In particular, it notes that the suspensory effect of an order under section 120 of the 1955 Act is analogous to that which would result from a grant of bail in the civilian context under section 19 of the Criminal Appeals Act 1968. The Court notes also that the applicant has not made any submissions questioning the potential effectiveness or adequacy of the power to suspend or postpone sentence under the 1955 Act.

The Court concludes that the applicant has not complied with the requirement under Article 35 § 1 of the Convention that all domestic remedies are exhausted and that the application must therefore be rejected under Article 35 § 4 of the Convention.

For these reasons, the Court unanimously,

Declares the application inadmissible.

Michael O’Boyle Matti Pellonpää Registrar President