THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 34155/96 G.W. against the United Kingdom

The European Court of Human Rights ( Third Section) , sitting on 5 December 2000 as a Chamber composed of

Mr J.-P. Costa , President , Mr W. Fuhrmann ,

Mr L. Loucaides, Mr P. Kūris , Mr K. Jungwiert , Sir Nicolas Bratza , Mr K. Traja , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 17 October 1996 and registered on 12 December 1996,

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 is a British national, born in 1957 and living in Portsmouth. He is represented before the Court by Mr Albuery , a solicitor practising in Hampshire. The respondent Government are represented by Mr Eaton, Agent, Foreign and Commonwealth Office.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant joined the Royal Navy as a Lieutenant in September 1980 and was promoted to Commander in 1993. In or around early 1996, the applicant was charged, pursuant to section 42 of the Naval Discipline Act 1957 (“the 1957 Act”), with three civilian offences (one under the Theft Act 1968 and two under the Forgery and Counterfeiting Act 1981). He was also charged, inter alia , on four counts of misapplication of public property contrary to section 30 of the 1957 Act. The charge sheet was signed by, inter alia , the convening authority, Rear Admiral N.E. Rankin (Flag Officer Portsmouth – “FOP”).

By convening order dated 1 February 1996, the convening authority acknowledged receipt of the “circumstantial letter” from Lieutenant Commander Flanagan and ordered the convening of a court-martial for 26 February 1996. By that order also, the convening authority appointed the Prosecutor by name (Lieutenant Commander Flanagan , barrister, Royal Navy of the Staff of the Flag Officer Portsmouth). The convening authority also appointed by name the President of the court-martial (Captain Goodall , Royal Navy, Second Sea Lord/Commander-in-Chief Naval Home Command). He also appointed the members of the court-martial by name as follows:

– Commander Mundy , Royal Navy, Communication Requirement Trials and Publications Section LEYDENE;

– Commander Stanford, Royal Navy, Directorate of Naval Staff Duties;

– Lieutenant Commander Oakey , Royal Navy, HMS DRYAD; and

– Lieutenant Commander Pearce , Royal Navy, HMS COLLINGWOOD.

The convening authority also appointed the Judge Advocate by name (Commander Williams, Barrister, Royal Navy, Staff of Second Sea Lord/Commander-in-Chief Naval Home Command). Finally, he appointed the Clerk of the court-martial by name (Chief Writer Wallace, of the FOP Staff). All members of the court-martial were subordinate in rank to the convening authority. The Prosecutor and the Clerk of the court-martial were also in the convening authority’s chain of command.

The applicant was advised by letters dated 18 December 1995 and 2 February 1996 that he could be represented by a civilian lawyer or by a naval barrister. The applicant instructed a civilian lawyer (“the accused’s friend”), his current representative.

The court-martial took place on board HMS NELSON on 18 March 1996 and the applicant pleaded guilty to all charges. Having presented evidence in mitigation of sentence, the applicant was sentenced, inter alia , to four months’ imprisonment, to be discharged from the navy and to stoppages of pay in the sum of GBP 2,655. On 27 March 1996 the applicant petitioned the Defence Council against sentence. By letter dated 19 April 1996, the applicant was informed that his petition, which had been reviewed on behalf of the Admiralty Board by the Naval Secretary/Director General Naval Manning, had been rejected. The letter added that the applicant could request that the petition be further considered by the Admiralty Board. He subsequently renewed his petition against sentence to the Admiralty Board. On 17 May 1996 he was released from prison and by letter dated 7 June 1996 he was notified that his petition had been rejected.

B. Relevant domestic law and practice

1. General

The law and procedures in respect of naval courts-martial were contained in the Naval Discipline Act 1957 (“the 1957 Act”) and in certain statutory instruments made under the 1957 Act including the Naval Courts-Martial General Orders (Royal Navy) 1991 (“the 1991 Orders”). Following the Court’s judgment in the Findlay case (Findlay v. the United Kingdom judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I), certain provisions of the 1957 Act have been amended by the Armed Forces Act 1996 (“the 1996 Act”), which Act came into force on 1 April 1997. Apart from section 8 below, the following is an outline of the applicable law and practice prior to the entry into force of the 1996 Act.

Under section 42 of the 1957 Act “civilian” offences are also offences under the 1957 Act. Accordingly, even if the charge amounts to a civilian offence, in most cases naval personnel can be tried on that charge by the naval authorities under the 1957 Act.

2. Composition of a naval court-martial

A naval court-martial consists of between five and nine naval officers not below the rank of lieutenant, though the rank of the members may be higher depending on the rank of the accused. Not all members may belong to the same ship or naval establishment and the captain and executive officer of the accused’s ship cannot sit on the court-martial.

A President of the court-martial will be appointed from the members. A Judge Advocate must also take part in every naval court-martial. A Clerk of the Court is also appointed and is responsible for certain administrative and routine duties in connection with the court-martial. A Provost Marshal may be appointed to take the accused into custody and to keep the accused until he is delivered in due course of law. A Prosecutor must be appointed and he may be a legally qualified naval officer or any other competent person. In exceptional cases civilian counsel will be appointed as Prosecutor.

An accused may engage, inter alia , an officer or civilian counsel (“the accused’s friend”) who may advise the accused, examine the accused if he desires to give evidence, cross-examine witnesses for the prosecution and examine witnesses for the defence. The accused’s friend may make any submissions that the accused might make and may, on the accused’s behalf, open and close the defence case and, if necessary, make a statement in mitigation of punishment. If the accused wishes to be represented by a civilian lawyer he may apply to the convening authority for approval of legal aid.

3. Convening authority

A court-martial may be convened by the Defence Council and any officer authorised by the Defence Council. Any officer so authorised may in turn authorise an officer under his command (including a flag officer) to so convene a court-martial. The officer who convenes the court-martial is referred to as the convening authority. Appendix 5 to Volume II of the Manual of Naval Law (published by the naval authorities) gives a list of officers who may act as a convening authority and these are the Commander in Chief, Fleet; Commander in Chief, Naval Home Command; Flag Officer Plymouth; Flag Officer Scotland and Northern Ireland; Flag Officer Naval Aviation; Flag Officer Portsmouth; Flag Officer Surface Flotilla; Flag Officer Sea Training; Commander UK Task Force and Commander British Forces Gibraltar.

An application for a court-martial to be held is generally made to the convening authority by the Commanding Officer by way of a “circumstantial letter”. This letter must report the circumstances upon which a charge is based in sufficient detail to show the real nature and extent of the offence. Any statement made by the accused in the course of inquiries, during investigation or after he has been charged must be forwarded in a separate document annexed to the letter. A charge sheet in the prescribed form, a list of witnesses for the prosecution, summaries of evidence of those witnesses and a list of exhibits which the Prosecutor proposes to put in evidence must accompany the letter.

Based on the material submitted, the convening authority decides on the charges to be retained against an accused and, if he is satisfied with the charge sheet accompanying the circumstantial letter, he can countersign the charge sheet. He also decides on the necessity to hold a court-martial to try the accused on the charges so retained. In this latter respect, the convening authority should be guided by the principles issued by the Director of Public Prosecutions under section 10 of the Prosecution of Offences Act 1985 and must not order a court-martial unless satisfied that the charges are correct, that the evidence is sufficient (namely, that there is a realistic prospect of a conviction) and that there is a “service interest” in trying the matter by court-martial. In convening the court-martial, the convening authority must appoint the date, time and place for the trial and post notice of the court-martial in a place accessible to the public and press at least twenty-four hours before the court-martial.

The convening authority appoints the President and other members of the court-martial. He also appoints, or directs an officer to appoint, a Judge Advocate, a Clerk, a Prosecutor and a Provost Marshal, if the latter is deemed necessary. He must also ensure that the accused is properly assisted. In this latter respect, and unless the accused desires to represent himself or to instruct civilian counsel, the convening authority will nominate a competent naval officer to act as the accused’s friend. The convening authority must also inform the accused that any witnesses he may desire to call and whose attendance may be reasonably procured, will be summoned on his behalf.

The convening authority can, in exceptional circumstances, countermand the ordering of a court-martial before its commencement and dissolve a court-martial during the trial if circumstances arise which, in his opinion, render such action necessary (orders 13(2) and 28(2) of the 1991 Orders).

4. Judge Advocates

The Judge Advocate of the Fleet is appointed by the Queen on the recommendation of the Lord Chancellor and is removable on the same authority for inability or misbehaviour. He must be a barrister or advocate of not less than ten years’ standing. He acts as a legal advisor to the Admiralty Board on matters regarding the administration of justice under the 1957 Act. It is his duty to review all contested courts-martial whether the verdict is guilty or not guilty and, in particular, he advises that Board whether a court-martial was properly conducted according to law and whether the conviction can stand, gives a view on the sentence and draws attention to any gross errors or irregularities. He also gives the Chief Naval Judge Advocate his view as to the manner in which the naval barristers have conducted themselves as Judge Advocate, Prosecutor and as the accused’s friend. As a result of the latter advice, “there may well be downstream actions issuing guidance either specifically or generally” (Manual of Naval Law, Appendix 5).

The Chief Naval Judge Advocate is a serving officer of the rank of captain of the Royal Navy and is also a barrister. The Chief Naval Judge Advocate is assisted by a staff of serving naval officers who are barristers. His duties include assisting and consulting with the Judge Advocate of the Fleet, advising on the selection and appointment of naval barristers and sitting as Judge Advocate at naval courts-martial where the seriousness of the charges, the complexity of the trial, the rank of the accused or the interests of the Service so require.

In all other cases a Judge Advocate is appointed to a court-martial from the staff of the Chief Naval Judge Advocate.

Before the trial the Judge Advocate appointed must inform the convening authority of any defect in the constitution of the court-martial. He advises the court-martial, whether his opinion is requested or not, upon all questions of law and procedure which may arise and the court-martial must accept his advice unless there are weighty reasons for rejecting it, in which case those reasons must be recorded.

The Judge Advocate must ensure that the accused does not suffer any disadvantage during the hearing in consequence of, inter alia , the accused’s position, ignorance or incapacity to examine witnesses. Before the closing of the trial the Judge Advocate sums up the relevant law and evidence. The Judge Advocate is not present when the court considers its finding and, if during the court-martial’s deliberations on the charges further advice is required, the court-martial must receive that advice in open court. The Judge Advocate also advises the court-martial on sentence but not in open court.

5. The court-martial hearing

The accused is given an opportunity to object to any particular member of the court-martial and to its general constitution. If the objection to the President is upheld the court must adjourn until another is appointed. If an objection to a member is upheld, another member may be appointed from the “spare members list” and, if an objection as to the constitution of the court-martial is upheld, the court-martial must adjourn and report the matter to the convening authority. All members of the court, the Judge Advocate, the Clerk and any other officers of the court-martial must take a prescribed oath or affirmation (section 60 of the 1955 Act). The opinion of the President and of each member of the court-martial must be given orally and on each charge separately, and their opinions must be given in order of seniority commencing with the junior in rank and the vote of the majority determines sentence.

6. Procedure in the event of a plea of guilty

Before the court accepts a plea of guilty, the Judge Advocate must ensure that the accused understands the charge to which he has pleaded and the different procedure which will result from the plea. The Prosecutor then reads the circumstantial letter. Before the court proceeds to deliberate on sentence, the Prosecutor must whenever possible call relevant witness evidence as regards information in the possession of the naval authorities as to the accused’s background and history which may have rendered the accused more likely to commit the offence, as to his service history and as to his previous convictions. The accused may also give evidence and call witnesses in mitigation. The court-martial must also take note of the accused’s naval record (for example, awards for gallantry).

The members of the court-martial retire (with the Judge Advocate and the Clerk) to consider the sentence. The court-martial does not give reasons for its decision on sentence.

7. Post-hearing matters

Having received the report of the finding and sentence of a court-martial, the convening authority must take the necessary steps to give effect to the sentence (either by a committal order or otherwise) or he can order the suspension of the sentence pursuant to section 90 of the 1957 Act. Chapter 15 of the Manual of Naval law (Volume II) points out that before the convening authority gives effect to or suspends the sentence, he (or, inter alia , the Commander in Chief) must satisfy himself so far as he is able, that no errors have been made in the conduct of the court-martial likely, in his opinion, to invalidate the finding of the court-martial. If he doubts the correctness of the finding, in fact or in law, or the legality of the sentence, he cannot execute the sentence pending reference to the Defence Council. In such circumstances, the accused can be retained in custody or the sentence can be suspended under section 90 of the Act.

The convening authority (among other naval authorities) may at any time, and must at intervals of not more than three months, reconsider any case of suspension and if on reconsideration it appears that the conduct of the offender since his conviction has been such as to justify a remission of sentence, he must remit the whole or any part of it (section 92 of the 1957 Act).

A certified transcript of the proceedings is completed and sent through the commander-in-chief or senior naval officer to the Defence Council. The Defence Council may at any time review a finding of guilt, any sentence awarded in respect of such a finding by any tribunal and any finding by a court-martial that a person is unfit to stand trial or is not guilty by reason of insanity. This must be done by the Defence Council in the case of a court-martial as soon as practicable after the receipt of the record of proceedings (section 70(1) of the 1957 Act).

A convicted person may also petition the Defence Council against the findings or sentence, or both (section 70(2) of the 1957 Act). Having reviewed the petition, the Defence Council may, inter alia , quash or alter findings, authorise a re-trial and annul, remit or alter sentences. However, those powers may be, and are normally, carried out by the Admiralty Board or by any officer empowered in this respect by the Admiralty Board. Should an appeal be lodged to the Courts-Martial Appeal Court, the review functions of the Defence Council cease.

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 has the same status and, in essence, the same procedure as the Court of Appeal, Criminal Division and considers appeals from courts-martial. The judges of this court include ordinary and ex officio judges of the Court of Appeal and such judges of the High Court as are nominated by the Lord Chief Justice. There is no provision for an appeal against sentence only, although certain powers of revising such sentences, pursuant to an appeal against conviction, are available to the CMAC. Once an application to the CMAC has been received by the Registrar of the CMAC, the Defence Council’s duty to review ceases.

8. The Armed Forces Act 1996

Under the 1996 Act, the role of the convening authority ceased to exist and his functions were split among three different bodies: the higher authority, the prosecuting authority and court administration officers (Schedule I).

The higher authority, a senior officer, decides whether any case referred to him by the accused’s commanding officer should be tried 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.

A prosecuting authority is to be appointed for each 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 (Schedule I, Part II).

Court administration officers have also 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 the selection of members. Officers under the command of the higher authority will not be selected as members of the court-martial (Schedule I, Part III).

Every court-martial should now include 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 (Schedule I, Part III).

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 (Schedule V). A right of appeal against sentence to the CMAC has been added to the existing right of appeal against conviction (section 17 of the 1996 Act).

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention that he did not receive a fair hearing by an independent and impartial tribunal established by law.

He submits that the court-martial, the convening authority and the reviewing authorities were neither independent nor impartial arguing, in this context, that the “Prosecutor’s Office” appointed not only the Prosecutor but also the court-martial members. He also submits that the proceedings before all of those bodies were unfair, that their decisions were unreasonable and that the sentencing options were unfairly limited (in comparison to civilian courts).

The applicant further complains that, in view of the above defects in the court-martial, his detention was not in pursuance of a conviction by “a competent court” and was, as such, in violation of Article 5 § 1 (a) of the Convention.

He also invokes Article 13 of the Convention arguing that he did not have an effective domestic remedy as regards his complaints under Articles 5 and 6 of the Convention.

THE LAW

1. The applicant complains under Article 6 § 1 of the Convention that he did not receive a fair hearing by an independent and impartial tribunal established by law.

His main submission in this respect is that the court-martial was neither independent nor impartial within the meaning of Article 6 § 1 of the Convention because of the controlling role of the convening authority. In particular, the applicant points to that officer’s institutional connection with the prosecution of the case and with the members and officers of the court-martial. He further takes issue with the fairness of the proceedings before all of those bodies, with the reasonableness of their decisions and with the limited sentencing options available in comparison to civilian courts.

Article 6 § 1 of the Convention, insofar as relevant, reads as follows:

“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. ...”

The Government point out that, following the Commission’s Report in the above-cited Findlay case (Comm. Report of 5 September 1995), the Royal Navy took steps to ensure that the members of the applicant’s court-martial were not in the convening authority’s chain of command. Although those members were subordinate to him, what concerned the Court in the Findlay case was that the members of Mr Findlay’s court-martial were in the direct chain of command of the relevant convening officer. None of the members of the present applicant’s court-martial were in the convening authority’s chain of command, so that the applicant could not therefore have any objective doubts about the independence and impartiality of his court-martial, and the Government point out that he did not challenge the composition of the court-martial prior to his trial as he could have.

Moreover, there is no ‘confirming stage’ after the court-martial in naval courts-martial as there was in Mr Findlay’s court-martial proceedings. Instead a finding of guilt proceeds for review by a Reviewing Authority. The Reviewing Officer is independent of all others involved in the court-martial process and that officer can only be advised on any legal questions by a naval officer who is not involved in any court-martial work for the duration of his appointment.

Accordingly, the Government submit that the convening authority only convened the court-martial and appointed the Judge Advocate, the Prosecutor and the court-martial members. Once the court-martial commenced, he played no further role. Although the Court in the Findlay judgment also expressed concerns as to the post-trial procedure, that procedure does not affect the independence and impartiality of the court-martial which tried the applicant. As the Court stated at paragraph 80 of its Findlay judgment, its misgivings arose in particular from the role played by the convening officer in the organisation of the court-martial and not from any of the post-trial procedures.

For these reasons, the Government argue that the applicant’s claims that he did not have a hearing before a tribunal satisfying the requirements of Article 6 § 1 of the Convention are manifestly ill-founded or, in the alternative, there has been no violation of that Convention provision.

The Court considers that the applicant’s complaints about his court-martial raise serious issues under Article 6 § 1 of the Convention which require determination on the merits. It follows that these complaints cannot be dismissed as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

2. The applicant also complains under Article 13 that he did not have an effective domestic remedy as regards the alleged violations of Article 6 of the Convention. Article 13, in so far as relevant, reads as follows:

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority … “

However, the Court notes the nature of the charges against the applicant together with the sentence imposed and considers that his court-martial involved the determination of a criminal charge within the meaning of Article 6 § 1 of the Convention ( Engel v. the Netherlands judgment of 18 June 1976, Series A no. 11, pp. 33-36, §§ 80-85; Eckle and Others v. Germany judgment of 15 July 1982, Series A no. 51, pp. 34-35, §§ 76-77, and Garyfallou AEBE v. Greece judgment of 24 September 1997, Reports 1997-V, no. 49, pp. 1830-1831, §§ 32-33, with further references). In addition, the determination of sentence constitutes a part of the determination of criminal charges (the above-cited Findlay judgment, at § 69). Moreover, Article 6 constitutes the lex specialis in respect of the procedural guarantees attaching to proceedings of a criminal nature ( Kamasinki v. Austria judgment of 19 December 1989, Series A no. 168, p. 45-46, § 110). This complaint under Article 13 is, accordingly, to be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

3. The applicant further complains that, in view of the above alleged defects in the court-martial, his detention was not in pursuance of a conviction by “a competent court” and was, as such, in violation of Article 5 § 1 (a) of the Convention. He also considers that he did not have an effective domestic remedy in this respect within the meaning of Article 13 of the Convention. Article 5 § 1, in so far as relevant, reads as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

a. the lawful detention of a person after conviction by a competent court;

…

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

The Court recalls, as regards his complaint under Article 13 in connection with Article 5 § 1 (a), that Article 5 § 4 is the lex specialis as regards complaints concerning the remedies available to challenge the lawfulness of detention (see, for example, Egue v. France, application no. 11256/84, Commission decision of 5 September 1988, Decisions and Reports (DR) 57, p. 47). In any event, the Court considers that these complaints of the applicant relate essentially to his right to a court complying with the requirements of Article 6 § 1 of the Convention. It notes that it has already considered the court-martial’s compliance with the Convention under Article 6 § 1 above (Donnelly v. the United Kingdom, no. 29374/95, Commission decision of 16 April 1998, unpublished).

Accordingly, the Court finds that these complaints under Articles 5 § 1 (a) and 13 are to be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares admissible, without prejudging the merits, the applicant ’s complaints that he did not have a fair hearing by an independent and impartial tribunal established by law;

Declares inadmissible the remainder of the application.

S. Dollé J .-P. Costa Registrar President