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C-M decisions of first instance are not published, so Aspals relies on practitioners to report their Army and RAF cases here. We also publish Court-Martial Appeal Court cases here, with short summaries, together with international cases which deal with important military issues. Caveat: these references are only a brief outline and should not be regarded as authoritative. The full texts should be consulted for a detailed appraisal. Although every effort is made to succinctly state the essence of each decision, Aspals general Disclaimer applies.
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| The Queen, on the application of Al-Saadoon and Mufdhi v Secretary of State for Defence Human Rights/articles 1, 2, 3 and 6/transfer of prisoners ***New*** |
[2008] EWHC 3098 (Admin) 19 December 2008 |
| 2 Iraqis suspected of the murders of British soldiers were held by the British military authorities, at the request of the Iraqi authorities, pending their trial by the Iraqi High Tribunal ("the IHT"). They have already been produced to that court, which has exercised its jurisdiction. Before the High Court they claimed, on the basis, inter alia, of Al Skeini, that (i) they are within the jurisdiction of the United Kingdom for the purposes of article 1 of the ECHR and the Human Rights Act 1998, so that they enjoy the full range of Convention rights; (ii) transfer to the IHT would violate their Convention rights, and therefore be in breach of s.6 of the HRA 1998, because there are substantial grounds for believing that they would be at real risk of a flagrantly unfair trial, of the death penalty, and of torture or inhuman or degrading treatment while in custody pending trial and while serving any custodial sentence, contrary to articles 2, 3 and 6 of the Convention and article 1 of protocol no. 13; (iii) the transfer would be in breach of rules of customary international law, in particular the prohibition on torture; and (iv) the transfer would also be in breach of a legitimate expectation created by what is said to be the settled policy of Her Majesty's Government not to expose individuals to a real risk of the death penalty. HELD: The Claimants were within the jurisdiction of article 1. However, the proposed transfer of the claimants into the custody of the IHT would be lawful and that the claimants' claim for judicial review must be dismissed. However, the court remained "seriously troubled by the result", since on their assessment the claimants, if transferred, will face a real risk of the death penalty in the event that they are convicted by the Iraqi court. Accordingly, permission was granted to the Claimants to appeal.
Coram: Richards, LJ and Silber, J Claimants: : Karon Monaghan QC, Raza Husain, Guy S Goodwin-Gill and Helen Law (instructed by Public Interest Lawyers). Defendant: Clive Lewis QC, Tim Eicke and Sam Wordsworth (instructed by The Treasury Solicitor). Top of Page |
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| R-v- Army Board of the Defence Council, ex parte Anderson
Employment/Grievance |
(1991) 3 WLR 42 : (1991) 3 All ER 375 : (1991) ICR 537 |
| Race Relations Act 1976 provided that complaints of discrimination in the Army were to be dealt with by army procedures under s.181 [now s.180] Army Act 1955. The fact that disciplinary steps had been taken against the offenders was irrelevant, so the approach was seriously defective apart from various irregularities in procedure. There should have been a proper hearing of the complaint and the board could not have an inflexible policy not to hold hearings. The board's handling of the matter was flawed and its decision would be quashed. The complaint should be heard by a freshly constituted tribunal. Coram: Taylor LJ, Morland J Top of Page | |
| R v Anson Sentence/dangerous driving/Stoppages |
CMAC 28th April 2006 |
| Convicted by DCM of of 4 offences of disobedience to standing orders contrary to Section 36(1) of the Air Force Act 1955 namely: dangerous driving; driving with excess alcohol and two charges of failing to stop after an accident. Sentenced to 80 days MCTC Colchester and awarded stoppages totalling £2,323.25 in relation to the damage to the parked vehicles.Sentence appealed on grounds that :The Courts Martial (Air Force) Rules, SI 1997/171 require that before stoppages can be awarded the charge must specify the act which gave rise to the damage. Appeal allowed. Held: Damage is not an element of the offence of dangerous driving and mere reference to 'accident' in the particulars of the failing to stop charge was not sufficient. Therefore stoppages could not be awarded. Brodie distinguished. Coram: Pill LJ; Dobbs J; Underhill J Appellant: Alan Robertshaw; Respondent: not known. Top of Page |
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| A-v- Ministry of Defence and another Negligence/Medical |
[2004] ICLR, 7 May 2004 |
| Liability of MoD arranging for others to provide treatment for service personnel and dependants in German hospital. A Serviceman's child was delivered at a German hospital suffering brain damage as result of German obstetrician's negligence. Did the ministry owe non-delegable duty of care to ensure treatment in German hospital administered with due skill and care. HELD: Where the MOD did not itself provide hospital treatment to servicemen or their dependants living in Germany, but merely arranged for treatment to be provided in a German hospital, the MOD were not under a non-delegable duty of care to ensure that due skill and care was exercised by the German hospital. Germany was the appropriate forum and the German hospital the appropriate defendant. Coram: Lord Phillips of Worth Matravers MR, Tuckey and Wall LJJ Claimant: Geoffrey Tattersall QC and Hugh Mercer MoD: David Lloyd Jones QC and Adrian Hopkins QC Top of Page |
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| Ainsworth-v- United Kingdom Human Rights/s.69 AA offence/art.7 |
Application no. 35095/97 22 October 1998 |
| A Royal Marines lieutenant Troop Commander at the Commando training centre, was charged with two counts of conduct to the prejudice of good order and military discipline contrary to section 69 of the Army Act 1955, alleging neglecting to supervise adequately, as his duty required him to do, the Troop Party by failing to ensure that proper safeguards were imposed to prevent consumption of alcohol by under-age recruits in his troop and by failing to ensure that under-age recruits in his troop did not at that function consume alcohol contrary to the law. One of the under-age recruits had died from an excessive intake of alcohol at the Troop Party held in June 1992. Principal issues argued: 1. "Findlay" arguments over article 6 compatibility; 2. Challenge to the unforeseeable nature of the conviction under section 69 of the Army Act 1955 invoking Article 6 paras. 2 and 3(a) and Article 7. HELD: 1. Ground 1 was admissible, on the basis of Findlay and Coyne; 2. The court said a. Given the potential sentence under section 69 of the 1955 Act (two years imprisonment) and the nature of the charges against the applicant, the applicant was found guilty of a "criminal offence" within the meaning of Article 7; b. The criminal offence in question must be clearly defined in the law and that this requirement is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts' interpretation of it, what acts and omissions will make him criminally liable. Section 69 of the 1955 Act, read in the light of the detailed and precise provisions of the Standing Orders, satisfied the requirement of foreseeability under Article 7 of the Convention. Top of Page |
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| R-v-Andrews Sentencing |
[1998] EWCA Crim 644 (23rd February, 1998) CMAC (Case 9800600 S2) |
| Unlawful possession of 55 milligrams class B
controlled drug (cannabis). Approving R-v-Love, the court held ".... court-martial sentences are concerned at one and the same time to achieve two things. First, to punish service personnel for the criminality of their conduct; second, to deal with them also on a disciplinary basis. In that they are unique. . ." The Service community is not the same as a civilian community and offences which may be at the margin of criminality in the civilian community may be far more serious when committed by servicemen and personnel in a service environment. (Sentence varied on other grounds). Top of Page | |
| R-v-Appleyard Trial/Summing-up/Direction on unanimity |
[2005] EWCA Crim 2750 CMAC |
| In directing the court the Judge Advocate told the members of the Board in express terms that on retirement they should "try to reach a verdict upon which each one of you is agreed". He went on that when it became possible for a majority verdict to be accepted he would give a further direction. Appellant argued this was in breach of s.96 of the Army Act 1955, provides that verdicts of a court martial "shall be determined by a majority of the votes of the members of the court". HELD: The Judge Advocate had no jurisdiction to refuse to accept a majority verdict from the Board. However, he was entitled to direct the members to seek or try to return a unanimous verdict if they could. The better practice for any directions given to the Board should run along lines which expressly acknowledge that in the end the Board is entitled to return a majority verdict, but that it would be preferable for the Board to start its deliberations by seeking if possible to return a unanimous verdict. The directions in this case did not quite echo this suggested language. However, the court could see no justification for interfering with these verdicts and quashing the convictions. Coram: Judge, LJ, Evans and Mantell, JJ Appellant: Gilbert Blades; Respondent: Paul Rogers, Esq Top of Page |
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| E v Chief Constable of the Royal Ulster Constabulary and Another Human Rights/article 3/inhuman treatment by third parties |
House of Lords 12 November 2008 Times Newspaper |
| The positive obligation imposed on the state by article 3 of the European Convention on Human Rights to prevent the infliction by third parties of inhuman or degrading treatment was not unqualified and absolute. It was an obligation to do all that was reasonably to be expected to avoid a real or immediate risk to an individual once the existence of that risk was known or ought to have been known. Coram: Lord Hoffmann, Lord Scott of Foscote, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood Appellant: : Miss Karen Quinlivan and Miss Jessica Simor for E. Respondents: Mr Bernard McCloskey, QC and Mr Paul Maguire, QC, for the chief constable and the secretary of state; Mr Barry Macdonald, QC and Miss Fiona Doherty for the Northern Ireland Human Rights Commission, intervening. Top of Page |
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| R -v-"B" Sentencing |
GCM, Aldershot 24 Jun 03 |
| Guilty plea to 5 specimen counts alleging gross indecency with a child, buggery and indecent assault covering systematic sexual abuse of a step son over a 13 year period, commencing when the victim was 6 years old. Accused since left the Army. He voluntarily gave himself up to the civil police and made a frank confession. Consent of the Attorney General obtained to prosecute. Low risk of re-offending. Court had no power to make any supervisional order but, notwithstanding, felt that the offences were so serious that only a custodial sentence was appropriate. Sentence: 6 years imprisonment.
Coram: Judge Advocate Bayliss Top of Page |
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| R-v-Garry Glenn B Sex Offence/Conviction/Sentence/Detention/Notification Period |
[2005] EWCA Crim 2400 CMAC |
| Application for leave to appeal against conviction and sentence for indecent assault on a male. DCM sentenced him to be reduced to the rank of sapper and to undergo detention for 56 days. Placed on the Sex Offenders Register and to comply with notification requirements for five years. Registrar drew attention to section 82 of the Sexual Offences Act 2003 in which a person sentenced to imprisonment for six months or less is subject to the notification requirement for a period of seven years. HELD: (1) Putting a hand down the complainant's boxer shorts, as had been alleged, was plainly action which was capable of being indecent. Application for leave to appeal against conviction dismissed. (2) The sentence could be seen as being severe, but cannot be characterised as manifestly excessive. (3) In cases where service detention is the form of disposal adopted by the court martial, the person is a person of any other description within the meaning of section 82 and the notification period therefore is five years beginning with the relevant date.
Coram: Keene, LJ, Newman and Moses, JJ Appellant: unrepresented Respondent: James Mason, Esq Top of Page |
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| Baines-v-Army Prosecuting Authority Summary Dealing/Case Stated/Human Rights/Art.6/Fair Hearing |
[2005] EWHC 1399 (Admin) QBD |
| Allegation that summary dealing had been in breach of the appellant’s rights under Art. 6 ECHR on the grounds that the commanding officer was not an independent tribunal; the appellant’s choice to be tried by the commanding officer was not a free and unambiguous choice; and the appellant had not had the right to legal advice and representation at the hearing. Strong reliance was placed on the decision of the European Court of Human Rights in Thompson v UK (2005) 40 EHRR 11. Case stated by Summary Appeal Court. HELD: An accused soldier can be tried de novo by a court-martial or by the SAC and he has a free and unrestrained choice to elect the former rather than summary trial and the latter if a finding is made against him on a summary dealing. It follows that an accused soldier who is dealt with summarily for an offence under Part II of the 1955 Act does enjoy the rights conferred by Art 6. Accordingly, the summary dealing conducted by the CO did not breach the appellant’s rights under Art 6 (1) and (3). As a matter of general principle, a person can waive the Art 6 (1) and (3) rights to be tried by an independent and impartial tribunal and to legal assistance if he makes a voluntary, informed and unequivocal election not to claim these rights or to raise no objection to the lack of independence and impartiality of the tribunal and the lack of legal assistance. Coram: Rose LJ, Field J Appellant: Fiona Edington Respondent: Philip Havers QC Acknowledgment: Lewis Cherry, solicitor for the appellant. Top of Page |
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| R-v-Ball R -v-Rugg Sentencing/Detention/Remission |
[1998] EWCA Crim 473 (12th February, 1998) CMAC |
| A remarkable decision which determined that the substitution of an equal term of detention for a term of imprisonment under a court martial was in effect a more severe term than the original and concluded that however benign a term of detention was the essential element was a loss of liberty which was potentially greater under a term of detention as the remission period is less. Top of Page. |
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| Bankovic and others
-v-Belgium and other countries ECHR/Jurisdiction/Scope of application of the Convention |
Application no. 52207/99 Grand Chamber |
| The Applicants were all citizens of the Federal Republic of Yugoslavia (“FRY”). On 30 January 1999, and following a decision of its North Atlantic Council (“NAC”), NATO announced air strikes on the territory of the FRY in the case of non-compliance with the demands of the international community. During April 1999 bombing raids took place by NATO aircraft, during which the relatives of the Applicants were killed, thereby breaching their Article 2 right to life. HELD: The Applicants and their deceased relatives did not come within the “jurisdiction” of the respondent States within the meaning of Article 1 of the Convention. The Court was not persuaded that there was any jurisdictional link between the persons who were victims of the act complained of and the respondent States. Accordingly, it was not satisfied that the Applicants and their deceased relatives were capable of coming within the jurisdiction of the respondent States on account of the extra-territorial act in question. Top of Page. |
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| The Prosecutor -v-Tihomir Blaskic ICTY/War Crimes/Command Responsibility |
ICTY Judgment 3 March 2000 |
| The defendant was charged with war crimes and crimes against humanity in relation to acts against Bosnian Muslims. Blaskic was appointed commander of the HVO armed forces headquarters in central Bosnia on 27 June 1992 and occupied the position throughout the period covered by the indictment and was accused of having known or having had reason to know that subordinates were preparing to commit those crimes or that they had done so and that he had not taken the necessary and reasonable measures to prevent the said crimes from being committed or to punish the perpetrators. According to the Tadic Appeal Decision: an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. This criterion applies to all conflicts whether international or internal. Planning implies that "one or several persons contemplate designing the commission of a crime at both the preparatory and execution phases". Circumstantial evidence may provide sufficient proof of the existence of a plan. Instigating entails "prompting another to commit an offence" . The wording is sufficiently broad to allow for the inference that both acts and omissions may constitute instigating and that this notion covers both express and implied conduct. The ordinary meaning of instigating, namely, "bring about" the commission of an act by someone, corroborates the opinion that a causal relationship between the instigation and the physical perpetration of the crime is an element requiring proof. An order does not need to be given by the superior directly to the person(s) who perform(s) the actus reus of the offence. Furthermore, what is important is the commander’s mens rea, not that of the subordinate executing the order. Therefore, it is irrelevant whether the illegality of the order was apparent on its face.
Prosecution: Mr. Mark Harmon, Mr. Andrew Cayley, Mr. Gregory Kehoe; Defence: Mr. Anto Nobilo, Mr. Russell Hayman Top of Page |
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| R-v- The Army Board of the Defence
Council, ex parte DB Judicial Review |
[2000], Divisional Court, 24 Jul Casetrack ref: CO/3880/1999 |
| Two years after six officers were acquitted of
gang-rape on the directions of the judge at Oxford Crown Court, the Army Board ruled that their behaviour had fallen below the standards expected of officers and they were dismissed. Any officer who behaves in a scandalous or unbecoming way is liable to dismissal, according to Army rules. Captain DB, 26, asked a High Court judge to quash the decision of the Army Board as being unfair because he was denied a chance to defend himself against the behaviour accusations. Blofeld J. ruled that Captain DB, in admitting that he had been involved in group sex, would not have been able to argue successfully about his conduct at a court martial. Top of Page | |
| Bell -v- United Kingdom (Appeal) Summary Dealing/Article 6/Non-compliance/Invalid waiver of article 6 |
(Application no. 41534/98)
16 January 2007 |
| The offence at issue (using insubordinate language to a superior officer) was, in the Court’s view, disciplinary in domestic law and in nature. However, the Engel criteria being alternative and not necessarily cumulative, the “criminal" nature of the relevant “offence" could, in principle, be determined solely on the basis of the nature and severity of the sanction. Deprivation of liberty was liable to be and was actually imposed on the applicant. The presumption was that the charge against him was “criminal". That presumption could be rebutted entirely exceptionally and only if his deprivation of liberty could not be considered “appreciably detrimental" given its nature, duration or manner of execution (the Ezeh and Connors judgment, at § 126). Consent to Summary Dealing: A waiver of a right guaranteed by the Convention – in so far as it is permissible – must not run counter to any important public interest, must be established in an unequivocal manner and requires minimum guarantees commensurate to the waiver’s importance. It is important to note that the court noted that the applicant was directly subordinate, and in close structural proximity, to his CO, a factor which undoubtedly would have affected the free and unambiguous nature of any choice between a summary trial and a court-martial. The applicant would also have been influenced by the fact that a summary procedure involved a maximum sentence of 28 days (and 60 days only if extended powers were granted) whereas trial by DCM could have in theory ... led to a sentence of up to two years’ imprisonment. ... Moreover, the fact that the option was presented to him at all meant that his CO considered him to be guilty as charged and, further, that he warranted more than a minor punishment. The Court considered that, even supposing that the Article 6 rights in question could in principle have been be waived, the circumstances were such that there was no valid waiver by the applicant of his rights under that Article. The Court recalled that, in the Thompson case, it concluded that the summary procedure presented even clearer structural independence and impartiality problems than those established in the Findlay case and, further, that those proceedings were, consequently, unfair. HELD: The summary procedure before the CO violated the independence, impartiality and, consequently, fairness aspects of Article 6 § 1 and that the exclusion of legal representation from the applicant’s summary trial also constituted a violation of Article 6 § 3(c) of the Convention. Applicant: Mr J. Mackenzie, Respondent Government: Mr C.A. Whomersley and, subsequently, Mr J. Grainger Top of Page |
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| Bell-v-United Kingdom Human Rights/Summary Dealing/article 6 |
[2005] Application no. 41534/98 ECtHR |
| Article 6 § 1 complaint that the summary hearing before commanding officer was unfair. He mainly argued: The CO was not “independent or impartial" since he acted both as prosecutor and judge; b) the proceedings were not held in public; c) he was not allowed to comment on the strength of the case against him or to make a statement in mitigation of sentence; d) the tribunal was not “established by law"; e) no reasons were given for the CO’s decision; and f) there was no form of appeal available to the applicant. Under Article 6 § 3 he argued that: a) he had insufficient time to prepare his defence; b) absence of legal representation (Article 6 § 3(c)); and c) certain medical evidence was not obtained, one witness was intimidated and the other was interrupted in the course of his evidence without intercession by the CO (Article 6 § 3(d)). HELD: Article 6 does not compel Contracting States to set up courts of appeal. Hence, even assuming Article 6 applied, the applicant’s complaint about the lack of an appeal must be rejected as incompatible ratione materiae, within the meaning of Article 35 § 3 of the Convention. However, The remaining complaints raised complex and serious issues under Articles 6 § 1 and 3(c) which require determination on the merits. The Court unanimously Declared admissible the applicant’s complaints under Article 6 §§ 1 and 3 about the lack of independence and impartiality of his CO, about the proceedings being consequently unfair, about those proceedings not being held in public, about his CO not constituting a tribunal “established by law" and about the lack of legal representation. Applicant: John Mackenzie; Respondent: C Whomersley & J Grainger Top of Page |
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| Bici-v- MoD Negligence/Combat Immunity |
[2004] EWHC 786(QB) 7th April 2004 |
| British soldiers in Pristina opened fire upon a car containing four Albanians, killing two and injuring the others. They claimed they acted in self defence as they believed they had been fired at. The soldiers fired 42 shots in total. One of the deceased was shot in the back. The uncontroverted evidence was that the car began to accelerate away from the soldiers as the firing was taking place, before it came to a halt at a distance of some metres from its position when the first gun was fired. The survivors who were the claimants claimed damages both in negligence and trespass.HELD 1. As to self defence. The soldiers were not being threatened with being shot by Fahri Bici when they fired their guns, and there were no reasonable grounds for them to believe that they were. 2. Were the soldiers reckless? The claimants have not shown that the soldiers were reckless in the manner alleged. 3. The defence of combat immunity is not strictly a defence at all. The defendants have expressly disavowed any reliance upon this doctrine. It has not been contended that the acts of the soldiers were either authorised or ratified by the Crown. The claimants succeed in establishing that the defendant is liable to them in negligence and also, in the case of Mohamet Bici, in trespass to the person. The amount of damages will have to be assessed at a separate hearing. Coram: Elias, J Defendants: Mr. Stephen Miller Q.C. and Mr David Evans; Claimants: Mr. Paul Rose Q.C. Top of Page |
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| R-v-Blaymire Sentence/s.69/Appeal |
[2005] EWCA Crim 3019 CMAC |
| Appellant charged with two offences: manslaughter, of which he was acquitted, and a lesser alternative charge that he had, by his negligent handling of the rifle, caused the unintended discharge of a round, thereby causing the death of a Sergeant. Appellant was sentenced to be dismissed from the Territorial Army, reduced to the ranks and fined the sum of £2,750. On review, the Reviewing Authority (RA) received legal advice from the Judge Advocate-General to the effect that the charge on which the appellant had been convicted had been wrongly drafted in that it alleged an offence that was not known to English law. He advised that a re-worded charge should be substituted for the charge on which the appellant had been convicted. The RA followed his advice. The JAG also advised that the sentence should be quashed and substituted by a fine of about £750. The RA declined to accept that advice and instead confirmed the original sentence. HELD: In all the circumstances the sentence was excessive. Appellant's dismissal from the service was quashed. The court however confirmed all other parts of the sentence, namely reduction to the ranks and the fine which was imposed by the Court-Martial. To that extent and to that extent only the appeal was allowed. Coram: Rose LJ, Nelson and Swift, JJ Appellant: Mr S Reevell; Respondent: Mr H Keith. Top of Page |
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| R-v- Blyth (Christopher) Sentencing |
18 Feb 2003 CMAC |
| Appeal by Sgt Christopher Blyth against sentence of 2 years imprisonment, reduction to the rank of private and dismissal with disgrace from the army. Found guilty of 1 charge of indecent assault on a male. HELD: sentence was "manifestly excessive" for a soldier of previous good character. Sentence of one year substituted. Coram: Auld LJ, Fulford J, Zucker HHJ Top of Page | |
| R-v-Blyth (Stephen) Trial/Sentence/Fraud |
GCM, Gütersloh, 12 Oct 01 |
| 16 charges (fraud and attempting to pervert the course of justice). Capt Stephen Blyth convicted by GCM of 10 fraud offences and 1 count of attempting to pervert the course of justice. His estranged wife testified against him. The enquiry centred around the Paderborn Equestrian Centre (PEC) whilst he was the RAO of QDG and QRH as well as OC of the PEC whereby he defrauded the account in a number of ways, including the theft of almost £6500 cash and the obtaining of a horsebox valued at almost £5000. He was imprisoned for 2 yrs and awarded stoppages of pay of £12000 pounds. The trial lasted 4 weeks before judge advocate Peter Gribble Esq. The case was prosecuted by Capt Russell Clifton (Army Prosecuting Authority); defence counsel was Mr Nigel May. Reported by Dave Garfield Top of Page. |
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| Donna Lisa Boote -v- Ministry Of Defence Employment/Sex Discrimination |
[2003] NIIT 43 (29 September 2003) - from BAILII |
| Paragraph 14 of JS 132/98 potentially required that both she and her husband be deployed away from home at the same time. HELD: A female soldier was indirectly discriminated against on the grounds of her sex where the proportion of women who could comply with the requirement to deploy at short notice was considerably smaller than the proportion of men who could comply with it; the MOD could not demonstrate objective justification for the disproportionate impact which paragraph 14 had upon women; and B had suffered a detriment because army policy meant that she could not expect any particular weight to be attached to the fact that she had dependent children when decisions on deployment were being made. For the Applicant: Ms Higgins; for respondent: D Morgan QC, Neasa Murnaghan Top of Page |
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| R v Bulford District Court Martial
ex p Bowyer Judicial Review/Jurisdiction/Time Limit |
[1999] EWHC Admin 239 (18th March, 1999) |
| Allegation of GBH while serving in Bosnia. Accused discharged from the army, although he continued to be subject to military law under s. 132(3) for 6 months. He was brought to trial 1 day short of the 6 months, but prosecution not ready and trial adjourned sine die. 8 months later, trial re-opened but, as one of the members was being investigated, it was dissolved. A new trial direction was issued shortly afterwards. Application for judicial review, contending that the Attorney General's consent was required if the trial took place outside the 6 month period. Held: refusing the application, that the requirement for the consent of the A-G was not the only safeguard against oppressive prosecution, as a stay could be obtained for delay or abuse of process. Although the court martial had been dissolved, the trial continued for the purpose of the Court Martial (Army) Rules 1997 r.81 until the charges were disposed of at the end of the trial process. Top of Page |
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| Boyd, Hastie and Spear Saunby and Others
(Appellants)-v- The Army Prosecuting Authority and Ors Human Rights/Trial of s.70 offences/PPCMs |
House of Lords, 18 Jul 2002 |
| Conjoined appeals failed on both certified
questions concerning (a) trial by court-martial in the UK of s.70 offences and (b) that the existence of the Permanent President rendered trial by C-M incompatible with art. 6. The House considered the case of Morris and HELD: 1. Trial by C-M of s.70 offences was not incompatible with the convention; 2. The existence of the PPCM at a C-M was not incompatible with the convention; 3. The use of junior officers as members of the court was not incompatible with the convention; 4. The existence of the process of review by lay officers of C-M decisions, which could not operate other than to the accused's advantage, was not a breach of the convention. [Also reported in BAILII] See also below: Court of Appeal Top of Page | |
| Boyle -v- United Kingdom (Appeal) Human Rights/Commanding Officer/detention/legal representation Grand Chamber
| 8 January 2008 |
| On Appeal. The court considered the earlier cases of Hood, Thompson, and Jordan. The Grand Chamber Held UNANIMOUSLY that: 1. There has been a violation of Article 5 § 3 of the Convention in respect of the lack of independence and impartiality of the applicant's commanding officer in the 12th Regiment of the Royal Artillery; 2. There has been no violation of Article 5 § 3 of the Convention in respect of the alleged failure to inform him of the reasons for the applicant's detention in relation to the period 12 November 1999 to 22 February 2000; 3. There has been no violation of Article 5 § 3 of the Convention in respect of the alleged lack of a factual or legal basis for the applicant's detention in relation to the period 12 November 1999 to 22 February 2000; 4. It is not necessary to consider the remainder of the applicant's complaints under Article 5 § 3 of the Convention. Applicant: J. Mackenzie Esq; Respondent: Mr J. Grainger of the Foreign and Commonwealth Office. Top of Page |
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| Boyle v United Kingdom Human Rights/Commanding Officer/detention/legal representation |
ECtHR, 25 October 2005 Application no. 55434/00 |
| On 5 Nov 1999, B charged with indecent assault. Co-accused charged with rape. B was provided with “The Rights of a Soldier" pamphlet. The case was referred to Higher Authority and then to the APA. Retained in custody for a long time. The applicant invoked Article 5 § 3 of the Convention and complained:
(a) that his CO could not constitute a suitable “judge or other officer"; (b) that he had no representation (legal or otherwise); (c) that his CO did not make a decision on 6 November 1999 as to whether to retain him in close arrest; (d) that there was no basis in fact or law for the decision to keep him in close arrest (because, in particular, he was not a habitual offender); (e) that he was not informed of the reasons for his detention until 14 January 2000; and (f) that the officers concerned did not carry out their obligations under the Army’s rules. The Court considered these complaints were not manifestly ill-founded and unanimously decided to declare the application admissible. Applicant: J. Mackenzie Esq; Respondent: not known. Top of Page |
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| Brannigan-v- R Trial/inconsitent evidence/Judge Advocate/Direction |
[1998] EWCA Crim 255 CMAC, 26th January, 1998 |
| Defendant found guilty on two charges of conduct to the prejudice of good order and military discipline, contrary to section 69 of the Army Act. He was sentenced to be reduced to the ranks and dismissed from Her Majesty's Service. Two inter-linked complaints were made about the conviction. 1. a complaint that the prosecution evidence was so inconsistent and unsatisfactory that the fact that the court convicted upon it demonstrates that it cannot have properly considered the evidence as a whole, and that therefore the conviction is unsafe because there must be a lurking doubt about it. 2. The the Assistant Judge Advocate, when directing the court as to the law, misdrected them as to the burden and standard of proof. HELD: These convictions were safe. The appeal was dismissed.
Coram: Buxton LJ, Rix and Kay JJ For Appellant: M Humphreys Esq; For Respondent: M Zeidman Esq. Top of Page |
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| R-v- Brodie & another Charge/Pleading/Stoppages |
[2004] EWCA Crim 3519 CMAC |
| The accused pleaded guilty to the offence of aggravated vehicle taking and were each sentenced to 28 days' detention and put under stoppages of pay until they had repaid £3,000 by way of compensation for damage occasioned to the vehicle. The accused appealed. The accused submitted that the charge should have specified the amount of the damage to the vehicle, as required by §8 of Schedule 1 to the Court Martial (Army) Rules 1997. They questioned whether the charge had been properly framed in order to give the court martial power to make the order for stoppages. Held: Appeal dismissed. The particulars of the offence had complied with r 8. Had the accused been under any doubt as to how much they would be ordered to pay by way of stoppages, they would have been entitled to ask for particulars of the charge. However, in the instant case, the amount of damage had been perfectly clear from the witness statements.
Coram: Gage LJ, Nelson and Field JJ For Appellant: D Howell; For Respondent: James Mason Esq. Top of Page |
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| R -v- Kirsty Elizabeth Brown Court Martial/Terminating Ruling/Appeal/Joinder |
[2007] EWCA Crim 2632
19 July 2007 |
| The accused failed to return to HMS DRAKE from authorised leave on 8 Jan 07. On 29 Jan 07, she was contacted by a Royal Navy Police Officer, of superior rank, and ordered to report to the Duty Provost at the Royal Navy Police Headquarters in Plymouth the following day. The accused failed to report. On 27 Feb 07, she was arrested by civilian police. Accused was charged with
two offences: Absence Without Leave contrary to section 17(1)(a) of the Naval Discipline Act 1957 and Disobedience to a Lawful Command contrary to section 12 of the Naval Discipline Act 1957. Before the trial started, the JA, of his own motion, objected to the joinder of the two charges. He stated that when absent without leave a person could not be guilty of disobeying a lawful command, that it was not right for two charges to be based upon the same facts and that the facts surrounding the wilful disobedience were an aggravating feature of the absence without leave rather than a separate offence. Consequently, he quashed the wilful disobedience on the ground that it was oppressive. The Naval Prosecuting Authority appealed this ruling under the Courts-Martial (Prosecution Appeals) Order 2006. HELD: JA wrong to hold that when a serviceman or woman was absent without leave they were no longer under an obligation to obey a lawful order. Nor was it correct to say that two charges cannot be based upon the same facts. On the contrary, the fact that two offences arise out of the same facts can be a good reason for joining both charges. The offence of disobedience to lawful commands contrary to section 12 of the 1957 Act is a different offence from that of absence without leave under section 17. Furthermore, the former offence is punishable by imprisonment without limit, whereas the maximum term is two years for the latter offence. For this reason alone it was legitimate to add the second charge. Furthermore, the particulars of the first charge (absence without leave) are quite different from those of the second (disobedience to an order). Accordingly joinder was proper and was not oppressive. Nota Bene: This was the first appeal to be brought under the Courts-Martial (Prosecution Appeals) Order 2006. At the outset, the CMAC dealt with a conundrum as to its jurisdiction. How was Article 1, which provides that the Order only applies to trials which commence after 5 Jul 06, to be reconciled with Articles 4(1) and 4(13) that purport to make Article 4 applicable to a ruling that is made before the trial commences? The CMAC stated that Article 1(2) must be read as if it provides "this Order shall apply only to trials by courts-martial which commence or are to commence on or after 5 Jul 06". Coram at first instance: J ABurn Appellant: Cdr J Pheasant RN (Royal Navy Prosecuting Authority) Top of Page |
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| Rv Buchan Careless Driving/Time limits for prosecution |
CMAC, 12th March 2007 |
| Appellant convicted by court martial of driving without due care and attention. He argued the charge was, in civilian terms, triable summarily only and that the position at courts-martial should be equated with the position which would have arisen before the magistrates’ court. Accordingly, he contended that the fact that no ’information’ had been laid within the six-month time limit imposed for summary offences under s 127 of the Magistrates Court Act 1980 meant that as the magistrates’ court would have had no jurisdiction to try the charge, so the courts-martial was without jurisdiction. The judge advocate general rejected that submission and the defendant was convicted. Held: Appeal dismissed. The courts-martial had had the jurisdiction to try the defendant. The fundamental difficulty faced by the defendant was that s 127 of the 1980 Act simply did not apply to courts-martial proceedings and it followed that he could not pray that provision directly in aid Appellant: Gilbert Blades Esq; Respondent: David Richards (instructed by the Army Prosecuting Authority) for the Army. Reported by Elaine Laga Top of Page |
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| R v Buchan Sentence/careless driving/First Instance |
DCM, 28th June 2006 |
| Charged with careless driving, Gunner Buchan was third choice duty driver. He had not been familiarised to drive Land Rover Wolfs in Germany, left hand drive. He did not get his work ticket signed and left with out this authority. He lost his way and was on the wrong road at the time of the accident. The two front seat belts failed. His three passengers were killed. Sentenced to be fined £1000. In passing sentence, the court remarked that he was driving too fast for his capability and experience, bearing in mind he had three passengers and was unfamiliar with the road. However, without doubt he was put into the situation where he was able to make that misjudgment about his own driving, namely, that somebody of his competence and experience should never have been given that duty. Reported by Elaine Laga Coram: Judge Advocate Burn Prosecution: Col C Miskelly, APA; Defence: Mr Gilbert Blades. Top of Page |
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| R-v-Challis Sentence/Drugs/PTSD |
21 February 2006, DCM Aldergove |
| Pleaded guilty to attempting to supply cocaine. Suffering from post traumatic stress disorder. Little or no official help in getting over his ordeal. The current offence was not out of character but "another example of serious and irresponsible criminal behaviour". 12 months in military custody and discharged from the Service Coram: Camp, JA Defence: Mr Colhoun; Top of Page |
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| R -v- Coates Trial/rape/multiple complaints/judicial ruling/PACE s.78 |
Court-Martial Appeal Court [2007] EWCA Crim 1471, 13th June 2007 (pdf file). |
| Alleged rape of female sailor by a senior rating. Complainant made 4 statements, the last of which was after consultations and therapy with a doctor of clinical psychology, Dr McGowan, who was an accredited consultant in Eye Movement Desensitisation and Reprocessing (EMDR). The essential defence submission was that the process undertaken by Dr McGowan resulted in the production of evidence which it would be unfair to admit. It was further suggested that if that application succeeded, the earlier evidence should be excluded on the basis that the original recollection by the complainant could not be properly tested in evidence.The Judge Advocate General observed that if he ruled that the fourth statement was inadmissible then the whole evidence must go because she is tainted. He concluded that notwithstanding that the process undertaken by Dr McGowan had facilitated what was described as pre-memory recall in inappropriate circumstances, evidence based on the fourth statement should be admitted. Held: On a strict application of the language of the section, the statutory conditions governing admissibility were fulfilled. The CMAC emphasised that the overall discretion of the court under section 78 of the Police and Criminal Evidence Act 1984 in relation to the fairness of proceedings applies to evidence which falls within these statutory criteria. It is critical to the analysis that the complainant did not support any version of events which she had given before she saw Dr McGowan. Everything she said afterwards about the incident, whether in her statement or her testimony, was, as the judge found, "unreliable", and should have been treated as such. The conviction was held to be unsafe and was quashed.
Coram: The President of the Queen's Bench Division Mr Justice Pitchford and Mr Justice Flaux Appellant: Mr A.M. Large Respondent: Mr A Bright QC , Mr P Glenser and Commander J Pheasant RN Top of Page |
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| R-v- Conley Trial/Lurking doubt/Indecent Assault |
[2005] All E R, 17 Jan (D) 98 Jan CMAC |
| At trial the Crown's case relied exclusively on the evidence of the 17 year old complainant. The defence was one of fabrication or that she had dreamed the incident. Her testimony had a number of inconsistencies and was contradicted by other witnesses. Held: There was a lurking doubt as to the safety of the convcition . As the trial was before a board of three officers who could convict on a bare majority, rather than a jury of 12, the CMAC might more readily re-visit facts that rested on the evidence of one witness especially where she had been inconsistent and contradicted. Conviction quashed.
Coram: Auld, LJ, Beatson and Wakerley JJ. For Appellant: David Richards Esq; For Respondent: Paul Rogers Esq. Top of Page |
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| Cooper -v- United Kingdom Human Rights/Fair Trial |
[2003] ECtHR Grand Chamber download |
| Appeal to Grand Chamber, concerned principally with the post-trial role of the Reviewing Authority under s.113 of the Air Force Act 1955. Held: The applicant's submissions concerning the Prosecuting Authority (answerable solely to the Attorney General), Higher Authority and Court Administration Office do not cast any doubt on the Chamber's findings in the Morris case as to the genuineness of the separation of the prosecuting, convening and adjudicating roles in the court-martial process under the 1996 Act. The Grand Chamber also held: Judge Advocate - There is no ground to question the independence of the JA PPCMs - PPCM's make an important contribution to the independence of an otherwise ad hoc tribunal. Junior members - The independence of the ordinary members is not undermined by their lack of legal qualifications. The GC departed from the view of the court in Morris in view of the additional information before it The Reviewing Authority - Although an anomalous feature of the system, the final decision in court-martial proceedings will always lie with a judicial authority, namely the CMAC. The role of the Reviewing Authority did not, in the circumstances of the present case, breach the principle that a tribunal's binding decision should be unalterable by a non-judicial authority. Judge Costa agreed with some hesitation over the role of the Reviewing Authority, and the ordinary members of the court-martial. However, he agreed with the majority as the Government's submissions were more fully developed and more precise in the second case thereby justifying a different approach to that taken in Morris Top of Page |
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| Prosecutor-v-Delalic and others ("Celibici") War Crimes/ICTY/Command Responsibility |
[2001] ICTY Appeal [1998] ICTY Trial These are pdf files |
| The verdict by the International Criminal Tribunal for the former Yugoslavia (Tribunal) in the so-called "Celebici" trial confirms that those exercising authority are also responsible for ensuring that crimes are not committed by their subordinates, when seen against the principle that criminal responsibility for omissions is incurred only where there exists a legal obligation to act. International law imposes an affirmative duty on superiors to prevent persons under their control from committing violations of international humanitarian law, and it is ultimately this duty that provides the basis for, and defines the contours of, the imputed criminal responsibility under Article 7(3) of the ICTY Statute. A commander has an affirmative duty to act within, and enforce, the laws of war. This duty includes the exercise of proper control over subordinates. A commander who breaches this duty and fails to prevent or punish the criminal acts of his subordinates may be held criminally liable. The Appeals Chamber held that the principle of superior responsibility reflected in Article 7(3) of the Statute encompasses political leaders and other civilian superiors in positions of authority. The principle that military and other superiors may be held criminally responsible for the acts of their subordinates is well-established in conventional and customary
law. The ability to exercise effective control is necessary for the establishment of de facto command or superior responsibility. As long as a superior has effective control over subordinates, to the extent that he can prevent them from committing crimes or punish them after they committed the crimes, he would be held responsible for the commission of the crimes if he failed to exercise such abilities of control. Top of Page |
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| R-v- Dundon Human Rights/Fair Trial |
[2004] EWCA Crim 621 18 March |
| The CMAC took into account the judgment of the ECtHR in the case of Grieves and Held that trial by uniformed judge advocate breached article 6 of the ECHR. Changes brought into effect by the navy, through better briefing notes to court members, and the process of appointment of civilian judge advocates by the Judge Advocate of the Fleet, himself a civilian, were now in effect since the ECHR decision. However, following Cooper, there were 6 respects in which naval courts martial differed from those in the air force, the first three of which were of no materiality. Of the remainder were: an absence of PPCMS, who were considered to be an important contribution to the independence of an otherwise ad hoc institution, absence of a civilian judge advocate, which fact in itself was sufficient to conclude as to the lack of independence of naval courts-martial, due to the pivotal role played, and finally, the unsatisfactory nature of briefing notes. Having determined the breach, the court then held that the appellant's conviction should be regarded as unsafe. They could not envisage any circumstances in which an article 6 breach arising from want of independence and impartiality in the tribunal would possibly lead to the conclusion that the conviction was safe. The court expressed that in those pre-Grieves cases awaiting review, "it seems likely that this court will quash any convictions confirmed on review". Coram: Rose LJ, Brown (Douglas) and Newman JJ Crown: P Havers QC and Mr T Otty; Appellant: Mr N Lewin. Top of Page |
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| Engel and others -v- The Netherlands ECHR, Military law, article 6 tribunal, criminal charge |
(Application no. 5100/71; 5101/71; 5102/71; 5354/72; 5370/72), 8 June 1976 |
All applicants were, when submitting their applications to the Commission, conscript soldiers serving in different non-commissioned ranks in the Netherlands armed forces. On separate occasions, various penalties had been passed on them by their respective commanding officers for offences against military discipline. The applicants had appealed to the complaints officer (beklagmeerdere) and finally to the Supreme Military Court (Hoog Militair Gerechtshof) which in substance confirmed the decisions challenged but, in two cases, reduced the punishment imposed. HELD:
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| R -v- Eydmann and others Trial/prosecution/abuse of process |
General Court-Martial , June 29th 2007 (pdf file). |
| Defence submission of an abuse of process upheld where the investigating and prosecuting authorities have been guilty of serious faults at the very least justifying the view that it would be unfair for any of the Accused to be tried on the charges of perverting the course of public justice. [Thanks to Mr Blades for the copy ruling].
Coram: Judge-Advocate Elsom Advocates: Gilbert Blades, Mr Hill Top of Page |
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| G v HM Treasury Terrorism/Orders in Council/United Nations Act/UN Charter |
Court of Appeal Judgment October 30, 2008 Times Newspaper |
| Two antiterror Orders in Council made under section 1 of the United Nations Act 1946 to implement Security Council resolutions were lawful and valid, subject to important conditions. The Terrorism (United Nations Measures) Order 2006 was valid provided that certain words were excised from article 4(2) with the result that the Treasury was required to show reasonable grounds for suspecting the involvement of the designated person in committing or facilitating terrorism and not simply for suspecting that he might be involved. The al-Qaeda and Taleban (United Nations Measures) Order 2006 was also lawful and valid, so long as the designated individual was entitled to a merits-based review of his case. The Court of Appeal so held, Lord Justice Sedley dissenting, allowing in part the appeal of the Treasury. Coram: Sir Anthony Clarke, Master of the Rolls, Lord Justice Sedley and Lord Justice Wilson Treasury: : Mr Jonathan Swift, Sir Michael Wood and Mr Andrew O’Connor. Appellants: Mr Rabinder Singh, QC and Mr Richard Hermer for G; Mr Tim Owen, QC and Mr Dan Squires for A, K, M and Q. Top of Page |
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| G.W.-v- United Kingdom Human Rights/Fair Trial |
ECtHR, Application N° 00034155/96 15 June 2004 |
| Royal Navy case. Complained under art 6.1 he did not have a fair hearing by an independent and impartial tribunal established by law because of conflicting roles of the convening authority and, notably, the latter’s institutional connection with the prosecution and with the members of the court-martial. The complaint was upheld following Findlay. Top of Page |
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| R -v- Gemmell Trial/ABH/Self Defence/Submission/Summing Up |
[2006] EWCA Crim 3115 CMAC, 17 November 2006 |
| Appeal against conviction and sentence for assault occasioning actual bodily harm. At the end of all the evidence a submission was made by the defence of no case to answer on the basis that, since the prosecution were not able to establish how the trouble started, there was insufficient evidence to be left to the members of the court. That submission was roundly rejected by the Assistant Judge Advocate General, who took the view that it was a matter for the members of the court. HELD: Both the complainant and the appellant were drunk. There was insufficient evidence of unlawful conduct by the appellant shown on the facts of the case. This case should have been stopped at the end of the evidence by the AJAG on the grounds that a case was not made out. In addition, considering the safety of the conviction, the summing-up was defective in two important particulars and there was a total failure to analyse the transcript of the 999 telephone call which was an important plank in the defence. Of self defence. It followed that it could not possibly be said that the conviction is safe. Conviction quashed and appeal allowed. Coram: Hallett LJ, Tugendhat J, Sir Richard Curtis Appellant: Mr Norris; Respondent: Mr R Milne Top of Page |
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| R-v-Godsmark Court-Martial/ABH/Sentence/NCO/RAF |
[2005] EWCA Crim 1559, CMAC, unreported |
| 44year old serving RAF NCO convicted by DCM of ABH on fellow NCO. Fined £3,000, ordered to pay £500 by way of compensation and severely reprimanded. Petitioned against finding and sentence. Comment of single judge approved: "The fine reflected the nature of the offence and was appropriate having regard to your good character and means". Court added that although this was a "very serious breach of military discipline" the decision of the trial court not to dismiss him or even reduce him in rank was entirely appropriate to the offence. Coram: Laws, LJ, Holland and Steele JJ Top of Page |
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| Grieves -v- United Kingdom Human Rights/Fair Trial |
[2003] ECtHR Grand Chamber download |
| The use of navy uniformed judge advocates breaches article 6 of the ECHR. Applying the principles established in Findlay, the Grand Chamber HELD : The Naval Prosecuting Authority - In contrast to the other services, the NPA can appoint a prosecutor from a list of uniformed naval barristers outside his own staff. The applicant did not comment specifically on how this bears on the compliance of his court-martial with Article 6 apart from noting that “ad hoc" prosecutors are involved in naval courts-martial. The Court considered that the essential point was that the prosecutor in the applicant's case came from the staff of the NPA. Court-Martial Administration - The NCAO is a civilian. The Court considered it plain that the involvement of a civilian in a service court-martial process contributes to its independence and impartiality. The NCAO was independent of the NPA and Higher Authority. Absence of PPCM - The absence of a full-time PPCM, with no hope of promotion and no effective fear of removal and who was not subject to report on his judicial decision-making deprives naval courts-martial of what was considered to be an important contribution to the independence of an otherwise ad hoc tribunal Judge Advocate - In contrast to the other two services, where the JA is a civilian, the JA in a naval court-martial is a serving naval officer who, when not sitting in a court-martial, carries out regular naval duties. CNJA remained a senior service officer whose main functions included the appointment of legally trained service officers to legal posts in the service and who was answerable as regards those duties to the senior Admiral responsible for personnel policy. Even if the naval Judge Advocate appointed to the applicant's court-martial could be considered to have been independent despite being reported on, the position of naval Judge Advocates cannot be considered to constitute a strong guarantee of the independence of a naval court-martial. The lack of a civilian in the pivotal role of Judge Advocate deprives a naval court-martial of one of the most significant guarantees of independence enjoyed by other services' courts-martial, for the absence of which the Government offered no convincing explanation. Top of Page |
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| In the Petition of Dr John Hunter Miller Judicial Review, Army Board decision, time promotion. |
[2007] CSOH 86 |
| Judicial Review of a determination of the Army Board dated 12th March 2005. The petitioner was a consultant radiologist. He joined the Royal Army Medical Corps ("RAMC") and attained the rank of major. He contends that he was entitled to be promoted to the substantive rank of lieutenant colonel on or about 1 August 2000, having by then accumulated 11 years reckonable service. He was not so promoted and made a complaint to the Army Board under section 180 of the Army Act 1955 as amended. On 12 March 2005 the Army Board refused the petitioner's complaint. The petitioner sought judicial review of that refusal. At the heart of the dispute was an issue as to whether promotion from the rank of Major to that of Lieutenant Colonel fell to be determined "by time" (i.e. automatically after a certain period of service, subject to satisfactory reports), by selection or by a combination of the two.
HELD: AGAI, §35.003(d) defined the categories of promotion to Lieutenant Colonel in the terms, “Promotion of all officers other than those listed in sub paras (2) and (3) is by selection”. Under this provision, an officer was not entitled to promotion as of right after a certain number of years service. An additional complaint that the Army Board had failed to provide sufficient reasons for its decision (relying on the well known line of authority summarised in Singh v Secretary of State for the Home Department 2000 SC 219) was abandoned. Petitioner: Mr Lindsay; Respondent: Mr Webster Top of Page |
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| Ireland -v- United Kingdom Torture/inhuman treatment/the "5 techniques" |
[1978] ECHR 1
(18 January 1978) |
| The interrogation techniques which the UK had originally authorised as follows were ruled illegal: (a) wall-standing: forcing the detainees to remain for periods of some hours in a "stress position", described by those who underwent it as being "spread-eagled against the wall, with their fingers put high above the head against the wall, the legs spread apart and the feet back, causing them to stand on their toes with the weight of the body mainly on the fingers"; (b) hooding: putting a black or navy coloured bag over the detainees' heads and, at least initially, keeping it there all the time except during interrogation; (c) subjection to noise: pending their interrogations, holding the detainees in a room where there was a continuous loud and hissing noise; (d) deprivation of sleep: pending their interrogations, depriving the detainees of sleep; (e) deprivation of food and drink: subjecting the detainees to a reduced diet during their stay at the centre and pending interrogations. Top of Page |
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| Issa and Others -v- Turkey Human Rights/Right to Life/Jurisdiction |
Application no. 31821/96 16 November 2004 |
| Claim by applicants that Turkish military forces murdered their male relatives in April 1995, when Turkish forces were operating in Northern Iraq. The key question the court had to decide was whether the applicants' relatives came within the jurisdiction of Turkey – HELD: (1)Iraq was an independent and sovereign State which exercised effective jurisdiction over its national territory. It was neither a member of the Council of Europe nor a signatory to the Convention. (2) The exercise of jurisdiction is a necessary condition for a Contracting State to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention. (3) The words “within their jurisdiction" in Article 1 of the Convention must be understood to mean that a State's jurisdictional competence is primarily territorial (see Bankovic and Others ), but also that jurisdiction is presumed to be exercised normally throughout the State's territory. (4) A State's responsibility may be engaged where, as a consequence of military action – whether lawful or unlawful – that State in practice exercises effective control of an area situated outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention derives from the fact of such control, whether it be exercised directly, through its armed forces, or through a subordinate local administration. (5) It is not necessary to determine whether a Contracting Party actually exercises detailed control over the policies and actions of the authorities in the area situated outside its national territory. (6) Moreover, a State may also be held accountable for violation of the Convention rights and freedoms of persons who are in the territory of another State but who are found to be under the former State's authority and control through its agents operating – whether lawfully or unlawfully - in the latter State. In refusing the applicants’ claim, the court could not be sure on the evidence before it in the instant case whether at the relevant time Turkish troops conducted operations in the area where the killings took place. Top of Page |
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| Robert Valentine Jackson -v- R RAF/Unlawful low flying/Strict liability offence |
[2006] EWCA Crim 2380, 17th October 2006 |
| The appellant flew a Jaguar plane at a height lower than 100 feet, hit a tower and caused substantial damage to the plane. Fortunately he, himself, survived. Flying at under 100 feet was forbidden by Regulations. Pleaded guilty to unlawful low flying contrary to section 51 of The Air Force Act 1955 (charge 1) and negligently causing damage to aircraft belonging to Her Majesty contrary to section 44A (1) (d) of the Air force Act 1955 (charge 2). Mr Blades submitted to the Judge Advocate that the offence of low flying is an offence of full mens rea and that the prosecution had to prove that the appellant either knew that he was flying under 100 feet or was reckless. HELD: One is always reluctant to conclude that Parliament has created an absolute criminal offence or one of strict liability, but there are occasions when it has done so. In this case the court concluded that the Prosecution was correct in their assertion that it has done so in the case of Section 51 AFA 1955. Coram: Hooper LJ; Keith J; Lloyd Jones J Appellant: Mr G Blades; Respondent: Mr R Milne Top of Page |
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| R-v- Jackson Sentencing |
[2004] All ER (D) 127 9 February |
| J charged with two offences of assault occasioning actual bodily harm. Sentenced to 15 months' detention in a military corrective centre, reduced to the ranks and dismissed from Her Majesty's service. He appealed against sentence, arguing inter alia, detention in a military corrective centre was more punitive than imprisonment because a longer period would be served. HELD: The court considered the scale of punishments available to a court-martial hearing, pursuant to s 71 of the Army Act 1955 and the Ministry of Defence guide to sentencing, paras 4.2 and 4.16. The appeal would be dismissed. The sentence was not manifestly excessive in the circumstances. A custodial sentence in a military corrective centre was less severe than a sentence of imprisonment in a civilian prison. Moreover, the defendant had committed two separate offences, both against the same woman, which had involved serious injuries. He had not been a first-time offender and had not pleaded guilty. In those circumstances, the sentence was appropriate and would be upheld. Coram: Keene LJ, Richards and Henriques JJ Crown: J Mason Esq; Appellant: D Richards Esq. Top of Page |
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| Jebson-v- Ministry of Defence
Negligence |
BAILII, 21st June, 2000, C.A. |
| Although an adult ordinarily should appreciate the dangers created by his own actions and could not rely on his own drunkenness as giving rise to a duty on others to exercise special care, there was no such invariable rule. Where an obligation of care was implied or assumed in respect of a person who was likely to be drunk, that liability could not be avoided because the person was inebriated. The Court of Appeal so held, on the basis of 25 per cent liability for the claimant, a former Grenadier guardsman, in respect of severe injuries suffered when he fell from the defendants' lorry travelling from Portsmouth to the Longmoor military camp for a night out. Although off-duty, the trip had been specifically authorised by an officer. Top of Page |
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| R-v-Johnson Appeal/Trial Procedure |
ECtHR, 26 Feb 2002 |
| The Reviewing Authority has quashed the convictions and sentence in the case of: DANNY JOHNSON (formerly Sapper Danny Johnson of the Corps of Royal Engineers Reserve Training Mobilisation Centre) who was convicted by General Court Martial at Colchester on 31 January 2002 of two offences of malicious wounding contrary to S 20 Offences Against the Person Act 1861 and was sentenced to 8 months imprisonment. The offences for which he was convicted arose out of an incident in Bosnia on Christmas eve of 1999 when he was alleged to have stabbed two other soldiers in the corrider of the accomodation block following an argument after he had refused to go to bed. The convictions were quashed because the Judge Advocate (Mr. Gribble) had adjourned the trial after the first complainant had given evidence and the second complainant had failed to turn up, instead of dissolving the court and starting afresh. There was a gap of 69 days in the trial (from 20 November 2001 until 28 January 2002) before the second complainant was brought to court to give evidence, which rendered the trial unfair. Reported by Gilbert Blades, Solicitor, Lincoln Top of Page |
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| R-v-Johnson Trial/s.34/adverse inference |
[2005] EWCA Crim 3540 CMAC |
| A small wrap of cannabis was found in the appellant's pocket. In the guard room he said he did not know what it was. In interview thereafter he made no comment. The Judge Advocate ruled that the fact that he had failed to mention it in interview allowed the court to consider drawing an adverse inference from that failure. The appellant was not allowed to give evidence that his girlfriend had put the wrapper containing cannabis in his pocket on the basis that that was hearsay. HELD This was not an appropriate case in which to invite the jury to draw inferences from silence under section 34. Appeal allowed and conviction quashed. No re-trial sought. Coram: Vice-President, Crane and Openshaw JJ Appellant: Lord Thomas QC; Respondent: P Rogers Esq. Top of Page |
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| R-v-Johnson (Joseph) Navy/Sentence/Appeal |
[2005] EWCA Crim 2934 CMAC |
| Appeal against sentence of court martial held at HMS Drake. Accused found guilty of using threatening, abusive, insulting or provocative behaviour likely to cause a disturbance (charge 1) and assault occasioning actual bodily harm (charge 2). Global sentence of 90 days detention, to be disrated, to be deprived of his good conduct badges and suffer the consequential effects, and to be put under stoppages of pay until he had made good the sum of almost £260 as compensation. The court did not distinguish the elements of the sentence which were referable to each offence. On petition to the reviewing authority, the finding was quashed on charge 2. This, therefore, required fixing a sanction in respect of count 1 which was still outstanding. In relation to that charge, the sentence imposed was 28 days detention, to be disrated to OM(C) first class, to be deprived of two good conduct badges, and to suffer the consequential penalties involved. Grounds of appeal were essentially that the commanding officer would never have referred this matter to court martial if it had not been for its connection with the assault charge. Held: To strip him of his rank, with all the consequential financial penalties, was disproportionate in the circumstances of this case. Sentence varied so that he should be stripped of the two good conduct medals and, in addition, a fine of £500 was appropriate. Coram: Sir Igor Judge, Elias & Ouseley, JJ Appellant: Mr J Kesner; Respondent: Miss A Towler. Top of Page |
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| Jones and Clarke -v- R ECHR, Fair trial |
[2006] EWCA Crim 1342, 12 May 2006 |
| Convicted by DCM of an offence of affray. Appeals against conviction. They submitted that thecourt must have decided the case on the basis of an offence which was not charged, namely an offence of wounding with intent; that the Judge Advocate erred in admitting certain evidence; that the court-martial was not a compliant court within the meaning of Article 6. It was argued by the defence that novel points were raised, but held that none of the points raised was reasonably arguable on the basis of the decision in Spear and Hastie. Appeals against sentence also denied. Coram: Pill LJ; Evans J; Underhill J Non-counsel application Top of Page |
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| R-v- Court-Martial Administration Officer ex parte Jordan
Trial/Abuse of Process/Delay |
27 Jul 1999 |
| A judge advocate had been entitled to refuse an application made on the ground of delay, that the proceedings be stayed as an abuse of process. HELD: 1) There was nothing exceptional in the circumstances of the case which put it beyond the reach of the general principle that judicial review was a remedy of last resort and was ordinarily unavailable where alternative remedies existed. (2) Although there was considerable delay which was not acceptable it was not such as to amount to an abuse of process, since delay in itself would only amount to an abuse of process in exceptional circumstances. (3) The delay had been caused by the pre-trial procedure rather than the individuals concerned and the judge advocate had been entitled to conclude that it did not lie with the defence. (4) The delay had not caused the applicant any prejudice since much of the evidence depended on documents rather than on the recollection of witnesses Coram: Simon Brown LJ, Newman J Top of Page | |
| Kyprianou-v-Cyprus Human Rights/Art 6/Fair trial/Contempt |
15 December 2005, Grand Chamber Application no. 73797/01 |
| ECtHR's task is to determine whether the use of summary proceedings to deal with Mr Kyprianou’s contempt in the face of the court gave rise to a violation of Article 6 § 1 of the Convention. In considering this question, the Court recalled that, both in relation to Article 6 § 1 and in the context of Article 5 § 3, it found doubts as to impartiality to be objectively justified where there is some confusion between the functions of prosecutor and judge. The present case relateds to a contempt in the face of the court, aimed at the judges personally. The same judges then took the decision to prosecute, tried the issues arising from the applicant’s conduct, determined his guilt and imposed the sanction, namely, a term of imprisonment. In such a situation the confusion of roles between complainant, witness, prosecutor and judge could self-evidently prompt objectively justified fears as to the conformity of the proceedings with the time-honoured principle that no one should be a judge in his or her own cause and, consequently, as to the impartiality of the bench. On the facts of the case and considering the functional defect which it has identified, the impartiality of the Assize Court was capable of appearing open to doubt and the applicant’s fears in this respect could be considered to have been objectively justified. The Assize Court accordingly failed to meet the required Convention standard under the objective test. See Kyprianou First Chamber decision. Top of Page |
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| Kyprianou-v- Cyprus Human Rights/Fair Trial |
[2004] ECtHR, (Application no. 73797/01) download |
| A defence lawyer of 40 years standing was convicted of contempt by the court before which he was appearing and sentenced to 5 days imprisonment. His appeal was denied. HELD: The fairness of proceedings must be assessed with regard to the case as a whole. It is a breach of article 6§1 for the same court to try a contempt in its face. Moreover, while it is possible for a tribunal in certain circumstances to make reparation for an initial violation of the Convention, the Cyprus Supreme Court had agreed with the court of first instance that it could try the contempt committed in its face and did not hold a re-hearing de novo. The ECtHR also noted that the appeal did not have a suspensive effect upon the sentence. There was a also a violation of article 6§2 relating to the presumption of innocence, and a violation of article 6§3 that the Assize court had failed to inform him in detail of the accusations against him. Cases referred to include, Engel and others v. the Netherlands, Findlay v. the UK, Ezeh and Connors v. the UK Top of Page |
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| R-v- Lee Sentencing/Military offence/s.69/dismissal |
[2005] All E R, 17 Jan (D) 96 Jan CMAC |
| While serving in Iraq, the accused RMP NCO kicked and stamped to death a dog. He was charged with disgraceful conduct of a cruel kind, contrary to section 66 of the Army Act 1955. He was convicted and sentenced to dismissal with disgrace, six months detention and reduction to the ranks. The reviewing authority varied the sentence to one of dismissal and reduced the detention to three months. Held: Appeal dismissed. Sentence was not manifestly excessive. Coram: Auld, LJ, Beatson and Wakerley JJ. For Appellant: Dingle Clarke Esq; For Respondent: James Mason Esq. Top of Page |
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| LePetit-v- United Kingdom Human Rights/Fair Trial |
ECtHR, Application N° 00035574/97 15 June 2004 |
| Royal Navy case. Complained under art 6.1 he did not have a fair hearing by an independent and impartial tribunal established by law because of conflicting roles of the convening authority and, notably, the latter’s institutional connection with the prosecution and with the members of the court-martial. He also complained he did not have a fair hearing for other reasons mainly concerning the independence of, and advice given by, his advising naval barrister and the admission in evidence of statements made by him during interview. The complaint was upheld following G.W. and Findlay, which rendered it unnecessary to address the applicant’s additional submissions concerning the fairness of his court-martial proceedings (relating to his being advised by a naval barrister - so the point is still open). Top of Page |
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| R -v- Alan James Martin Absence without Leave, Sentence |
[2007] EWCA Crim 3377 |
| D pleaded guilty to two charges of being absent without leave. Sentenced to 6 months’ detention less time already served on remand. Complaint was made that the sentence was excessive and failed to allow for the mitigation which was afforded by the defendant’s reasons for being absent. Held: The Services are used to considering the domestic circumstances of servicemen, if they are properly put before them, which in this case they were not. Secondly, whilst that was one reason for the absence, it was absolutely clear that another reason was that the applicant had, for whatever reasons, come to regret his decision to re-enlist. The nature of service in the Armed Forces is that one cannot bring it to an end when one decides that one has made a mistake. As against the first factor, which is arguably mitigating, there is therefore that second factor which is not, and there is the aggravating factor of successive absences. The sentence at the upper starting point of 6 months was one which was fully justified. Applicant: Mr G Blades; Respondent: Mr D Richards Top of Page |
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| Martin -v- United Kingdom Trial/Civilian/Impartiality/ |
[2006] Application no. 40426/98 ECtHR, 24 October 2006 |
| The power to try the applicant (a civilian youth, the dependant son of a serviceman) by court-martial had a clear and foreseeable legal basis, namely section 209(2) of the 1955 Act. There is nothing in the provisions of Article 6 to exclude the determination by service tribunals of criminal charges against service personnel. The question to be answered in each case is whether the individual’s doubts about the independence and impartiality of a particular court-martial can be considered to be objectively justified and, in particular, whether there were sufficient guarantees to exclude any such legitimate doubts. While it cannot be contended that the Convention absolutely excludes the jurisdiction of military courts to try cases in which civilians are implicated, the existence of such jurisdiction should be subjected to particularly careful scrutiny, since only in very exceptional circumstances could the determination of criminal charges against civilians in such courts be held to be compatible with Article 6. The power of military criminal justice should not extend to civilians unless there are compelling reasons justifying such a situation, and if so only on a clear and foreseeable legal basis. The existence of such reasons must be substantiated in each specific case. It is not sufficient for the national legislation to allocate certain categories of offence to military courts in abstracto. This was a pre-Findlay case. The Court considered that the distinctions between the court-martial in the present case and that in Findlay were not sufficiently material to persuade it to reach a different conclusion. The essential safeguards that were lacking in Findlay were also absent in the present case and, as in Findlay the Judge Advocate did not provide the same guarantees of independence and impartiality as in Cooper. The Court considered the applicant’s concerns about the independence and impartiality of his tribunal to be objectively justified and there had been a violation of Article 6 § 1. Appellant: Gilbert Blades Esq; Respondent: C. Whomersley , Esq Top of Page |
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| Matthews -v- Ministry of Defence Employment/Crown Proceedings |
House of Lords [2003] UKHL 5 (13 February 2003) [2003] 2 WLR 435 |
| On a true construction s 10 of the Crown Proceedings Act 1947 exempted the Crown from liability in tort in respect of the armed services, substituting a no-fault system of compensation for a claim for damages. That was a matter of substantive domestic law which gave rise to no "civil right" to which the requirements of art 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, as scheduled to the Human Rights Act 1998, might apply. European Court of Human Rights jurisprudence was emphatic that art 6(1) only applied to civil rights which could be said on arguable grounds to be recognised under domestic law and distinguished between provisions of domestic law which altogether precluded the bringing of an effective claim and those which imposed a procedural bar on enforcement of a claim. The House of Lords so held, when dismissing an appeal by the claimant, Alan Matthews, from the Court of Appeal [2002] 1 WLR 2621 which had allowed the Ministry of Defence's appeal from Keith J Coram: Lord Bingham of Cornhill, Lord Hoffmann, Lord Hope of Craighead, Lord Millett and Lord Walker of Gestingthorpe Top of Page |
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| McQuade -v- Secretary of State for Defence Employment |
[2003] ScotCS 252 Outer House, Court of Session |
| Application for judicial review of the non-exercise by the Secretary of State for Trade and Industry ('the secretary of state') of his power, contained in Sch.2, para.16(2)(b) Employment Rights Act 1996, to apply certain employment rights to members of the armed forces. HELD: Members of the armed services were excluded from relying on the unfair dismissal scheme contained in the Employment Rights Act 1996, and their exclusion did not breach their rights under the European Convention for Human Rights. Coram: Lord Emslie For the Petitioner: Mr Bell QC and Mr Sutherland; For the Respondent: Mr Moynihan, Q.C. and Mr McCready Top of Page |
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| Mitchell -v- R Trial/Jury Deliberations |
[2004] EWCA Crim 1665, CMAC |
| Appeal against conviction by GCM for an offence of indecency with a child. The court martial jury (the Board) was made up of four military members, flown out from the United Kingdom, and one civilian. The Board returned a majority guilty verdict of three to two (announced on inquiry by the JA). It did not produce its verdict until just after 20.00, after a day's hearing that had begun at 09.34. It was a Saturday, the 6th day of a trial that was supposed to have lasted only 5 days, when the following Monday was a bank holiday in the UK. The military members of the Board were due to return home to share the weekend with their families and flights that had been arranged were re-arranged throughout the day. The length of the summing up, a period of over two hours at the culmination of a long day, suggested that there was a great deal of conflicting evidence to be considered. M submitted that the events on the day of the trial produced a verdict based on staying power or endurance, and that as such the verdict was tainted and unsafe HELD: Like a jury, the members of a Board had to conduct their deliberations free from any form of pressure. When assessing whether a verdict was unsafe due to the fact that a court martial Board had reached it at the culmination of a long day, the issue was whether reasonable examination of the events of the day in their overall context, including the length of the sitting, led to the conclusion that unacceptable pressures on the jury had or could have been created. There was no evidence that the judge had enquired whether the jury felt they were able to continue or satisfied himself that the Board had been right to do so.
Coram: Judge LJ, Hallett J, Treacy J For the appellant : J Lindsay; For the respondent : WN May Top of Page |
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| Multiple Claimants v Ministry of Defence Armed forces/Combat immunity - Scope - Crown Proceedings Act 1947, s 10 |
[2003] EWHC 1134 (QB) QBD |
| A soldier did not owe a duty of care in tort when engaged with an enemy in the course of combat. Combat included all active operations against an enemy,and covered attack and resistance, advance and retreat, pursuit and avoidance, reconnaissance and engagement. It also included anti-terrorist, policing and peacekeeping operations in which service personnel came under attack or the threat of attack.On a proper construction of s 10 of the 1947 Act, the defendant was immune in the instant cases from action in relation to acts or omissions which occurred before the repeal of that section in May 1987. Save for three specific exceptions, the claimants had failed to establish that the defendant had been in breach of its duty of care to servicemen. Full text of jugdment - Part 1; Full text of judgment - Part 2 Coram: Owen, J Claimants: Stephen Irwin QC, James Rowley and Jonathon Richards; Defendant: Robert Jay QC, Jonathon Glasson and Sam Grodinski. Top of Page |
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| R -v- Oakes Sentence/Firearms/minimum sentence |
[2007] EWCA Crim 246, 1 February 2007 |
| Corporal in the Royal Air Force pleaded guilty to four offences of selling a firearm and five offences of theft. He asked for a further 153 offences to be taken into consideration. He was sentenced to eight years' imprisonment, to be dismissed from Her Majesty's Service with disgrace and to be reduce to the ranks. He petitioned the Reviewing Authority and on 22nd September 2006 who varied the sentence to four years' imprisonment, to be dismissed from Her Majesty's Service with disgrace and to be reduced to the ranks. Held: The sentence in this case had to be based upon the fact that Parliament has indicated that prima facie the minimum sentence for the firearms offences to which this appellant pleaded guilty would have been in respect of each of the counts 5 years' imprisonment.
Coram: Latham, LJ, Forbes and Tugendhat JJ Appellant: Mr R Clark; Respondent (the Crown): Mr D Richards Top of Page |
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| R -v- Phillips, Whitfield, Pleasant, McEneany Firearms Act 1968, minimum term, general non-applicability to service courts |
[2007] EWCA Crim 1735 |
| The Firearms Act 1968, as amended by the Criminal Justice Act 2003, carries a minimum sentence of five years’ imprisonment. The point of principle in issue was whether or not a Court-Martial is a court for the purposes of that statutory provision, it being expressly the requirement to impose a minimum term being expressed by subsection (2) of section 51A of the Firearms Act in the following terms: ‘The court shall impose an appropriate custodial sentence.' The appropriate custodial sentence in relation to these offenders would, had they been civilians, have been five years’ imprisonment. The issue arises because section 305 of the 2003 Act states, as far as court is concerned, that it did not except in circumstances where mandatory life sentences are imposed “include a service court”. The consequence must be that the mandatory provision in section 51A is not a provision which the Court-Martial is obliged to impose.
In many cases there may be particular reasons why a particular offence committed by a serviceman should be treated differently from such an offence committed by a civilian. Nonetheless, it seemed to the CMAC that section 70(3)(b) points generally in the direction of indicating that the appropriate sentence in a civil court will at least be a sensible starting point from which to operate, particularly where the Court-Martial is considering a sentence of imprisonment, in other words, a similar form of penalty from the penalty which would be imposed by a civilian court. Turning then to the particular offence before the court, the Court-Martial was bound to have regard in determining the appropriate sentence to the fact that for a civilian the minimum sentence would be one of five years imprisonment. That would have been the proper starting point. Applicant: Mr Tregilgas-Davey appeared on behalf of the Applicants Phillips, Whitfield and Pleasant; Mr B Jackson appeared on behalf of the Applicant, McEneany; Respondent: Mr N Macauley appeared on behalf of the Crown Top of Page |
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| Al-Skeini and others -v- Secretary of State for Defence Human Rights/European Convention/Human Rights Act/Jurisdiction |
House of Lords, [2007] UKHL 26 (pdf file). Link here for web version. |
| Appeal from Court of Appeal. Proceedings arose from the deaths of six Iraqi civilians, and the brutal maltreatment of one of them causing his death (Baha Musa), in Basra by a member or members of the British armed forces. The claimants found their claims in the English court on the Human Rights Act 1998. To succeed each claimant had to show that a public authority acted unlawfully, that is, incompatibly with a Convention right of the claimant or the deceased (section 6(1) of the Act). First, the claimant must show that his complaint falls within the scope of the Convention. Even if the claimants succeed on that first issue, they must satisfy a second condition: of showing that their claims also fall within the scope of the HRA. The Secretary of State contended that the HRA has no application to acts of public authorities outside the borders of the UK ie there is no extra-territorial application. The HoL answered the key questions: A. Does the HRA apply to acts done outside the territory of the UK? Lord Bingham held that the HRA has no extra-territorial application. The other 4 judges held that it did. The purpose of the 1998 Act is to provide remedies in our domestic law to those whose human rights are violated by a United Kingdom public authority. To accept what the Secretary of State says, that sections 6 and 7 are to be interpreted in such a way that, in these exceptional cases, a victim is left remediless in the British courts and, contrary to the central policy of the Act, the victim must resort to Strasbourg, involves reading into sections 6 and 7 a qualification which the words do not contain and which runs | |