Information Note on the Court’s case-law 59

December 2003

Cooper v. the United Kingdom [GC] - 48843/99

Judgment 16.12.2003 [GC]

Article 6

Criminal proceedings

Article 6-1

Impartial tribunal

Independent tribunal

Independence and impartiality of Air Force court martial: no violation

(Extracts from press release)

Facts : At the relevant time, the applicant, Graham Cooper, was a serving member of the Royal Air Force (RAF). On 18 February 1998 Mr Cooper was convicted of theft under the 1968 Theft Act by an Air Force district court martial (DCM). He was sentenced to 56 days’ imprisonment, to be reduced to the ranks and dismissed from the service. The DCM comprised a per manent president, two other officers lower in rank and a judge advocate. The permanent president was on his last posting prior to retirement and had ceased to be the subject of appraisal reports from August 1997. The two ordinary members had attended a cou rsein 1993 which included training in disciplinary procedures. On 3 April 1998 the Reviewing Authority, having received advice from the Judge Advocate General, upheld the DCM’s finding and sentence. The applicant appealed unsuccessfully to the Courts Marti al Appeal Court (CMAC).

Law : Article 6 § 1

(a) Admissibility : The Court considered that, given the nature of the charges against the applicant, together with the nature and severity of the penalty imposed (56 days’ imprisonment), the court martial proceedings constituted the determination of a criminal charge against the applicant. Finding that the applicant’ complaint raised questions of law which were sufficiently serious that their determination should depend on an examination of the merits, the Court declared the complaint admissible.

(b) Merits : The Court rejecte d the applicant’s general submission that service tribunals could not, by definition, try criminal charges against service personnel consistently with the independence and impartiality requirements of Article 6 § 1. The Court also rejected his complaint th at his own court martial lacked independence and impartiality. His submissions did not cast any doubt on the genuineness of the separation of the prosecuting, convening and adjudicating roles in the court martial process or the independence of the decision -making bodies from chain of command, rank or other service influence. The Court stated that there was no ground upon which to question the independence of the Air Force judge advocate since he was a civilian appointed by the Lord Chancellor (a civilian) a nd he was appointed to a court martial by the Judge Advocate General (also a civilian). It was also found that the presence of a civilian with such qualifications and such a central role in court martial proceedings constituted one of the most significant guarantees of the independence of those proceedings. Furthermore the Permanent President of Courts Martial (PPCM) appointed to the court martial in the case was independent and made an important contribution to the independence of an otherwise ad hoc tribu nal. Turning then to the ordinary members, the Court found that their ad hoc appointment and relatively junior rank did not in themselves undermine their independence, as there were safeguards against outside pressure being brought to bear on them, namely the presence of the PPCM and the judge advocate, the prohibition of reporting on members’ judicial decision-making and the briefing notes distributed to the members. The Court noted that the Reviewing Authority was an anomalous feature of the present court martial system and expressed its concern about a criminal procedure which empowered a non-judicial authority to interfere with judicial findings. However, the Court found that the role of the Reviewing Authority did not undermine the independence of the c ourt martial, because the final decision in the proceedings would always lie with a judicial body, the CMAC.

Conclusion : no violation (unanimously).

(See also Grieves v. the United Kingdom [GC], no. 57067/00, 16 December 2003, Information Note 59 )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

Click here for the Case-Law Information Notes