Courts-Martial Decided Cases

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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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**Reported Cases**
Name	Reference
Crompton -v- United Kingdom *New* Redress of Grievance/Human Rights/impartiality of tribunal/process of JR/article 6	(2009) ECtHR (Application no. 42509/05) 27 October 2009
In 1989 the applicant joined the TA as a pay and accounts clerk, a military post, carrying out duties such as filing, photocopying and maintaining a stationery store. In July 1993 he was informed that he was to be made redundant, following changes in the TA pursuant to a process of civilianisation. He was discharged on 18 February 1994, on the incorrect basis that his services were no longer required. The applicant later discovered that his former duties were being carried out by an untrained civilian, while the technical store-man post remained vacant. He complained by redress of grievance and through judicial review of army board decisions. He brought his case to ECtHR complaining that the resolution of his grievance was substantially delayed (11 years), in violation Article 6 § 1. He also complained that the army board was not an impartial and independent tribunal. The Court declared the complaints admissible. The Court recalled that even where an adjudicatory body determining disputes over “civil rights and obligations” does not comply with Article 6 § 1 in some respect, no violation of the Convention can be found if the proceedings before that body are “subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of Article 6 § 1” (Albert and Le Compte v. Belgium, 10 February 1983, § 29, Series A no. 58). Where there is a dispute of fact rather than the reliance on expert knowledge, judicial review proceedings did not offer “sufficiency of review” in light of the fact that the High Court had no jurisdiction to rehear the evidence or substitute its own views as to the applicant's credibility. As a result, the central issue in the dispute was not determined by an independent and impartial tribunal. (Tsfayo-v-UK). In the present case, the central issue was whether the approach of the Army Board in assessing the level of the compensation order was appropriate. The Court concluded that the High Court on judicial review did have “sufficiency of review” to remedy any lack of independence of the Army Board. Although the High Court could not substitute its own view as to an appropriate award in the circumstances of the case, it could and did examine both the method of calculation and the base figures used for the calculation. In the applicant's case, it found the base figure to be inaccurate and required the Army Board to review the calculation. The applicant's complaint was therefore determined by an independent and impartial tribunal. The court held unanimously there was no violation of Article 6 § 1 in this regard. Applicant: Levys Solicitors; UK Government: Ms H. Moynihan, Foreign and Commonwealth Office Top of Page
Binyam Mohamed, The Queen of the Application of -v- Secretary of State for Foreign and Commonwealth Affairs *New* Torture/PII/Disclosure/Intelligence Cooperation	[2009] EWHC 2549 (Admin) High CourtJudgment No 5, 16 Oct 2009
Binyam Mohamed alleged that MI5 was complicit in his torture by US intelligence operators. He sought the disclosure of documents in respect of which a PII certificate had been issued. The court had been informed at an earlier hearing that the disclosure of those unredacted documents would damage the intelligence sharing relationship between US and UK. The court was then requested to reconsider the decision on the basis that it had been misled or there had been a misunderstanding about that matter. Further evidence was served and the SoS served a further PII certificate of his concern there would be a real risk of serious harm to the security of the UK and its relations with the US. The court accepted that "There can be no doubt that there is a general principle or convention that intelligence information received by one state from another will not be released into the public domain or otherwise used without the consent of the state supplying it." (§15). However, it went on to hold that this was not a rule of international customary law and that court ordered disclosure would not normally have adverse consequences to the national security of the UK. There was a detailed analysis of the chronology relating to the matter of disclosure. On the basis of the indication by the US of the consequences of disclosure, the court made the earlier order. However, subsequent correspondence from the US made no reference to the earlier threat of consequences on disclosure. As a result of what transpired, and the release by the US Department of Justice of memos issued by the Office of Legal Counsel which referred to techniques used in interrogation of terrorist suspects, the court concluded that no reason had been advanced by the SoS for keeping the information relating to identity of the "entities" confidential. It made the order for disclosure of the redacted paragraphs. The court considered it inconceivable that the Obama Administration would actually reconsider the intelligence sharing relationship, thereby putting the lives of UK citizens at risk. The court therefore considered there was a compelling public interest in the disclosure of the redacted paragraphs, which was necessary to uphold the rule of law in the UK and to secure democratic accountability for the actions of British Security Services. Nevertheless, as the Attorney General is conducting a criminal investigation into the allegations of Mr Mohamed, the court held it would be inappropriate to release the closed judgment into the public domain at this time. Coram: Lord Justice Thomas, Lloyd Jones, J Claimant: Dinah Rose QC and Ben Jaffey; Defendant: Pushpinder Saini QC and Karen Steyn; Others intervening Top of Page
AB -v- Ministry of Defence Employment Tribunal/hearing in private/national security/racial discrimination	[2009] UKEAT 0101_09_2407 Employment Appeal Tribunal
Complaints of racial discrimination, including victimisation and harassment. The substantive hearing of his case commenced in the Employment Tribunal on 7 September2009. At a hearing before the Employment Tribunal, a ruling was made that the hearing of his claim should take place in private. The question for the Judge in considering whether to make an order under 54 (2) was whether he considered it "expedient in the interests of national security" to order that the hearing take place in private. He appealed against that ruling and emphasised the cardinal importance as a matter of principle of a public hearing, reference being made in particular to article 6 of the European Convention of Human Rights. Held: Cases involving national security are recognised as a discrete category of exception, or potential exception, to the rule of open justice. There were aspects of the facts which are bound to feature in the evidence which do indeed carry a real risk of prejudice to operations of the kind on which the Claimant was engaged in his overseas service. It is expedient to the interests of national security that any part of the hearing which deals with the Claimant's service overseas should be held in private. Coram: Underhill, J Appellant: Mrs Jane Russell and Mr Jude Bunting, instructed by Khan & Partners Respondent: Mr Adam Tolley, instructed by The Treasury Solicitor. Top of Page
A-v- Ministry of Defence and another Negligence/Medical	[2004] EWCA Civ 641, 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
A and Others v United Kingdom Terrorism/detention/human rights/article 5/right to liberty	Times [2009] (Application No 3455/05) ECtHR, 20 February 2009
United Kingdom held in breach of article 5.1 of the European Convention on Human Rights in respect of non-national terrorist suspects, since they had not been detained with a view to deportation and the derogating measures permitting their indefinite detention discriminated unjustifiably between nationals and non-nationals. However, in cases where there was a strong public interest in keeping some of the relevant evidence secret, for example to protect vulnerable witnesses or intelligence sources, it was possible to place restrictions on the right to disclosure, as long as the detainee still had the possibility effectively to challenge the allegations against him. See below related House of Lords decision RB and others Coram: Lord Phillips of Worth Matravers, Lord Hoffmann, Lord Hope of Craighead, Lord Brown of Eaton-under-Heywood, Lord Mance A full list of counsel and interveners will be found at the start of the judgment Top of Page
*AB and Others -v-* Ministry of Defence**	[2009] EWHC 1225 (QB, Times Report) See also Full Judgment and Law Reports Summary
Claims for compensation by former servicemen in relation to exposure to ionising radiation as a result of nuclear tests carried out in the 1950s were not to be struck out either as time-barred or as having no reasonable prospect of success. Mr Justice Foskett so held in the Queen's Bench Division when determining preliminary issues in 10 lead cases within a group action brought on December 23, 2004, or, in some cases, later dates, by 1,011 claimants, or, in some cases, the dependants or estates of deceased persons, against the Ministry of Defence for compensation for injury, disability or death in consequence of exposure to ionising radiation as a result of their presence near, or involvement in the aftermath of nuclear tests carried out by the British Government in the 1950s. Where a claim was statute-barred, the court had a discretion under section 33 of the 1980 Act to disapply the time limit. Separately, the court had power to strike out a claim as having no reasonable prospect of success. Coram: Foskett, J Claimants: Mr Benjamin Browne, QC, Ms Catherine Foster and Mr Mark James; MoD: Mr Charles Gibson, QC, Miss Leigh-Ann Mulcahy, QC and Mr Adam Heppinstall Top of Page
Ainsworth-v- United Kingdom Human Rights/s.69 AA offence/art.7	Application no. 35095/97 22 October 1998 Committee of Ministers, 15/10/2001
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
Al-Saadoon and Mufdhi, The Queen, on the application of v Secretary of State for Defence Human Rights/articles 1, 2, 3 and 6/transfer of prisoners	[2009] EWCA Civ 7 29 & 30 December 2008 Court of Appeal Times, February 4, 2009
Appeal from High Court. The issues were identified as (1) whether there was a real risk that the appellants would face hanging if convicted by the Iraqi court Held: Yes; (2) While detained by British forces at Basra, were the appellants persons within the jurisdiction of the United Kingdom for the purposes of ECHR Article 1? Held: No, because: (a) Article 1 is an exceptional jurisdiction. (b) It is to be ascertained in harmony with other applicable norms of international law. (c) It reflects the regional nature of the Convention rights. (d) It reflects the indivisible nature of the Convention rights. (3) If they were, was the court obliged to have regard to obligations owed to Iraq by the United Kingdom in deciding whether to grant relief for the purpose of upholding Convention rights? Held: Yes, the court was obliged to have regard to the United Kingdom’s obligation, arising under international law, to transfer the appellants to the custody of the IHT in deciding whether to grant relief for the purpose of upholding Convention rights; (4) If the appellants were transferred for trial by the IHT, would any such trial constitute so grave a denial of justice as to involve a flagrant breach of the appellants’ rights under ECHR Article 6? Held: No; and (5) Is it shown that execution by hanging must be regarded as a crime against humanity, inhuman or degrading treatment, or a form of torture? Held: No. Coram: Waller, Laws, Jacobs LJJ (judgment by Laws, LJ) Appellants: : Ms K Monaghan QC, Mr G Goodwin Gill and Ms H Law (instructed by Public Interest Lawyers). Respondent: Mr Clive Lewis QC, Mr T Eicke and Mr S Wordsworth (instructed by The Treasury Solicitor). Top of Page
Al-Saadoon and Mufdhi, The Queen, on the application of v Secretary of State for Defence Human Rights/articles 1, 2, 3 and 6/transfer of prisoners See also Court of Appeal decision	[2008] EWHC 3098 (Admin) 19 December 2008 (High Court)
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
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 counter to the central purpose of the Act. Section 6 should be interpreted as applying not only when a public authority acts within the United Kingdom but also when it acts within the jurisdiction of the United Kingdom for purposes of article 1 of the Convention, but outside the territory of the United Kingdom. In the case of Baha Mousa, he was taken to a detention unit in a British military base in Basra where he was so brutally beaten by British troops that he died of his injuries. The Secretary of State accepted that, since the events occurred in the British detention unit, Mr Mousa met his death "within the jurisdiction" of the United Kingdom for purposes of article 1 of the Convention. In these circumstances the parties agreed that, because of certain factual developments since the decision of the Court of Appeal, the sixth appellant's case should be remitted to the Divisional Court. B. The extra-territorial scope of the Convention The European Convention is a treaty under international law which confers rights on individuals against the contracting parties. While the Geneva Conventions on the Protection of War Victims 1949 apply "in all circumstances", the geographical scope of the rights under the European Convention is more limited: under article 1, the States Parties are bound to "secure to everyone within their jurisdiction the rights and freedoms defined in Section 1" of the Convention. For the purposes of deciding whether the Convention applies outside the territory of the United Kingdom, the key question is whether the deceased were linked to the United Kingdom when they were killed. If so, the UK had an obligation in international law to secure their rights under article 2 of the Convention and only then would their relatives have had any rights under the 1998 Act. The idea that the United Kingdom was obliged to secure observance of all the rights and freedoms as interpreted by the European Court in the utterly different society of southern Iraq is manifestly absurd. Hence, as noted in Bankovic and Others, 11 BHRC 435, 453-454, para 80, the court had "so far" recognised jurisdiction based on effective control only in the case of territory which would normally be covered by the Convention. If it went further, the court would run the risk not only of colliding with the jurisdiction of other human rights bodies but of being accused of human rights imperialism. It was not considered that the United Kingdom was in effective control of Basra and the surrounding area for purposes of jurisdiction under article 1 of the Convention at the relevant time. The court HELD (4:1) that subject only to a few narrow exceptions the Convention applies solely within the Council of Europe area and must then apply in full measure. An exception that permitted the Human Rights Act and Convention to apply extra-territorially was when a person was within the jurisdiction of the United Kingdom for the purposes of article 1 of the Convention. On this basis, as a prisoner in British military custody, Baha Musa was "within the jurisdiction". Neither the Act nor Convention applied to the deaths of the other 5 who were shot by British soldiers during the course of security operations. Bankovic and Others preferred to Issa -v- Turkey. Coram: Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood Appellants: Rabinder Singh QC, Michael Fordham QC, Shaheed Fatima, Christine Chinkin Interveners: Keir Starmer QC, Richard Hermer, Charles Banner Respondents: Christopher Greenwood QC, Philip Sales QC, Cecilia Ivimy Top of Page
Al Skeini and others: The Queen - on the Application of - Mazim Jumaa Gatteh Al Skeini and others-v- Secretary of State for Defence Human Rights/Right to Life/Jurisdiction	[2004] EWHC 2911 (Admin) BAILII Case No: CO/2242/2004, 14 December 2004 [2005] EWCA Civ 1609 - CA, 21 Dec 2005
Claims by families of 6 Iraqis, 5 of whom were shot by British soldiers and 1 who died while in British custody. They sought judicial review, on the basis that article 2 and (in the case of the sixth claimant) also article 3 of the ECHR applies, by reason of the Human Rights Act 1998. The judgment was only concerned with two preliminary issues: (1) whether the deaths took place within the jurisdiction of the United Kingdom so as to fall within the scope of (a) the Convention and (b) the Act; and (2) whether, if so, there has been a breach of the requirements under articles 2 and 3 of the Convention regarding an adequate enquiry into those deaths. HELD: 1. A state party's jurisdiction within article 1 of the Convention is essentially territorial; that exceptionally such jurisdiction extends to outposts of the state's authority abroad such as embassies and consulates; that this exception can apply to a prison operated by a state party in the territory of another state with the consent of that state; but that it does not apply to the total territory of another state which is not itself a party to the Convention, even if that territory is in the effective control of the first state; and that therefore only the case of the sixth complainant, in respect of his son's death in a British prison in Iraq, was within the United Kingdom's jurisdiction and thus within the scope of the Convention. It follows that, in the opinion of the court, the claims of the first five claimants must fail. 2. The scope of the Human Rights Act is also essentially territorial but also extends exceptionally, like the Convention, to the case of outposts of the United Kingdom's authority abroad such as embassies and consulates and in this case the prison in Iraq in which the death of Mr Baha Mousa occurred. It follows that, in the opinion of the court, the sixth claim is capable of falling within the Convention and the Act. 3. On the basis of a consideration of the facts relating to the death of Mr Baha Mousa and the surrounding circumstances, that the enquiries that have taken place into his death are not adequate in terms of the implied procedural requirements of articles 2 and 3 of the Convention. cf the case of Issa-v-Turkey. Top of Page
*Al-Sweady (The Queen, on the application of) -v-* Secretary of State for Defence**	[2009] EWHC 2387 (Admin)
After a fierce battle, near to a permanent vehicle checkpoint known as Danny Boy, 20 Iraqis were killed by British forces. The claimants' alleged that not all of the twenty died on the battlefield as at least one of them was murdered by British soldiers after he had been returned alive to Camp Abu Naji ("CAN"). The Secretary of State said that Mr Al-Sweady was killed on the battlefield and so Article 2 of the ECHR was not engaged. The second to sixth claimants were among nine Iraqis, who were interned before eventually being handed over to the Iraqi Authorities in September 2004. The dispute between the parties in relation to those claims centred on whether the rights of the detained claimants under Articles 3 and 5 of the ECHR had been infringed. : There were several factual disputes: Was Mr Al-Sweady killed on the battlefield or at CAN (article 2) Whether the detained claimants were ill-treated in CAN in a way so that their Article 3 rights were infringed Whether the continued detention of the second to sixth claimants could be justified because if it could not, their Article 5 rights might have been infringed The Soering point in relation to those handed over Whether there had already been a proper investigation of the Article 2 and of the Article 3 claims PII was dealt with in a judgment handed down on 10 July 2009 [2009] EWHC 1687 Admin ("the PII judgment"). It was common ground that in order to resolve many of the factual issues, disclosure was necessary of all reports into the incidents and to clarify whether there had been a proper investigations of these matters. There were serious disclosure issues on the part of the respondents and the Secretary of State recognised that the court could not appropriately make the rulings on the issues of the alleged deaths at Camp Abu Naji and the allegations of ill-treatment. A senior RMP officer was criticised by the court for the lamentable disclosure failures by the RMP in this case. There was a failure to investigate the allegations of murder, mistreatment and mutilation, which had been initially investigated under the protocols of the Army’s Shooting Policy. The court had earlier adjourned this matter until 2 October 2009 to ascertain whether there could still be a proper investigation. The Assistant Commissioner of the Metropolitan Police informed the court that it could not and should not, undertake an investigation into the matters alleged. The court made a number of recommendations for future cases raising similar points. See also the summary below. Coram: Lord Justice Scott Baker, Silber and Sweeney JJ Claimants : Mr R Singh QC, Mr M Fordham QC, Mr D Squires and Miss S Fatima; Respondents: Mr C Lewis QC, Mr S Wordsworth, Miss J Clement and Mr R Wastell Top of Page
(Al-Sweady and Others) Regina -v- Secretary of State for Defence Public Interest Immunity/Detainees/Ill-treatment/Human Rights/articles 2, 3 and 5	[2009] EWHC 1687 (Admin) [2009] Times, 3 August 2009 Queen’s Bench Divisional Court
The claimants alleged the murder by British soldiers of Hamid Al-Sweady, the deceased nephew of the first claimant, and ill-treatment of the other five claimants on the night of May 14/15, 2004, after they had been brought back as prisoners to Camp Abu Naji, a British base in southern Iraq, following an engagement known as the battle of Danny Boy and subsequent ill-treatment during detention at the camp and at the temporary detention facility at Shaibah. Held: The complete integrity of public interest immunity certificates and the schedules attached to them, signed by ministers of the Crown, was absolutely essential in all cases in which they were put forward. The courts had to be able to have complete confidence in them. Nothing less was acceptable. An indemnity costs order for the whole of the proceedings, with an interim order for £1 million, was made in the claimants’ favour. Coram: Lord Justice Scott Baker, Mr Justice Silber and Mr Justice Sweeney Claimants: Mr Rabinder Singh, QC, Mr Michael Fordham, QC, Miss Shaheed Fatima and Mr Dan Squires Defence Secretary: Mr Clive Lewis, QC, Mr Sam Wadsworth, Miss Joanne Clement and Mr Robert Wastell Top of Page
Anderson: 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
Andrews, R-v- 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
Anson, R v 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
Appleyard, R-v- 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
B (Garry Glenn), R-v- 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
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
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
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.
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.
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
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
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
Blaskic (Tihomir), The Prosecutor -v- 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
Blaymire, R-v- 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
Blyth (Christopher), R-v- 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
Blyth (Stephen), R-v- 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.
Boote (Donna Lisa) -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
Bowyer, R v Bulford District Court Martial ex p 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
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 See also: [The Times, January 14, 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
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
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
Brodie & another, R-v- 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
Brown (Kirsty Elizabeth), R -v- 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
Buchan, Rv 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. Top of Page
Buchan, R v 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. Coram: Judge Advocate Burn Prosecution: Col C Miskelly, APA; Defence: Mr Gilbert Blades. Top of Page
Buchanan and Falls, R-v-GOC 2 Div, The Army & Ano'r, ex p Sentencing	QB Div Ct, Times, 20 October 1998
Time spent in close arrest should be taken into account when reviewing sentences imposed by court-martial. Judicial Review granted on this basis and also on the refusal of the military authorities to give reasons for their decisions. [pre Findlay decision]. Top of Page
Challis, R-v- 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
Clancy v Ministry of Defence Employment Tribunal/Racial Abuse/Discrimination	Employment Tribunal, October (2009) South Wales Argus
A former soldier’s claim he was racially abused and victimised during his service was dismissed by an employment tribunal. Belize-born Marlon Clancy alleged during a tribunal that he suffered racial discrimination while based in Colchester and Chepstow. The tribunal held that the Ministry of Defence "did not discriminate against the claimant on racial grounds and did not victimise him contrary to the Race Relations Act 1976." Top of Page
Clarke (Andrew), R -v- Secretary of State for Defence ex parte Employment/Judicial Review/PVR	4th January, 1999, Divisional Court, [1999] EWHC D. Pannick QC [Report: BAILII]
Chief Petty Officer in the Royal Navy applied for leave to move for judicial review of a decision refusing to grant him early release from the Royal Navy. He joined in 1985 under the terms of an open engagement which normally require an 18 month notice period. The view of the NDD was that the Applicant's early release would give rise to a considerable risk to operational efficiency. The Applicant's Unit was concerned with providing specialist refrigeration maintenance and repair cover to ships and submarines 365 days a year. HELD: It is quite impossible to establish that for the Naval authorities to hold a person to a term of service for which they have signed up, amounts of itself to a disproportionate response from the Naval authorities, when the circumstances attest to operational reasons why this applicant should not be granted the early release which he has sought. Top of Page
Coates, R -v- 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
Colohan, R-v- SCC/Jurisdiction	6 Jul 98, SCC Osnabrück, (Unreported )
Charge of Drink Driving. Defence submitted that prosecution time-barred under s.127 of Magistrates' Court Act 1980 (laying of information within 6 months). Magistrate (Mr Berkson, DJAG) Held: as a matter of law, s.127 of the Magistrates' Court Act does not apply to SCC. Top of Page
Conley, R-v- 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
Cooney, R-v-; Allam, R-v- ; Wood, R-v- Sentencing	31st March 1999, CMAC
Guidance was given on considerations to be taken into account by courts-martial when sentencing military personnel on conviction of civilian offences and by the Courts-Martial Appeal Court when hearing appeals against sentences imposed by courts-martial. MR JUSTICE BURTON, giving the reserved judgment of the court, said that the cases raised matters of some importance in relation to the sentencing of military personnel for civilian offences. The issue common to all three cases was the financial consequence of the sentence to the appellant. In each case, sentences of dismissal were quashed. For initial appeal, see [1998] EWCA Crim 2903] [1998] EWCA Crim 3275] Aspals Top of Page
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
Coupland (Barrie James, ex.p.)R-v-, The Admiralty Board of the Defence Council, Employment/Grievance	[1998]EWHC 628
Redress of grievance by Naval officer, under s.130 of the NDA 1957. Complaint inter alia that he had been denied access to witness statements summarised in a brief to the Board. HELD: The Board is entitled to rely on others to carry out the process of investigation, which means the gathering of information that is necessary to enable a decision to be made. Procedure adopted by the Board had to be fair. High degree of fairness required in view of the importance of the complaints in relation to the applicant's career and promotion prospects, and the fact that there is no appeal from the Board's findings. The Board did not have to start the investigation from scratch. It first has to reach a decision in accordance with guidance given on the fairness and accuracy of the summary of evidence of witness statements, and secondly, in the light of that decision, to determine whether fairness requires disclosure of any of the witness statements that the Board chooses to examine. Certiorari granted.Aspals Top of Page
Coyne-v-UK Human Rights/Fair Trial	Times, 24 Oct 1997
Royal Air Force court-martial at which the commanding air officer was convening officer as well as fulfilling a prosecution role breached the requirement of independence and impartiality guaranteed under the European Convention on Human Rights 1950, Article 6.1. See Findlay. (Search link: Search Coyne -v- UK Govt) Top of Page
Crane, R-v- Trial/Credibility Enhancing	CMAC, 18th January 2000 (Transcript No: 9903200 S2)
Conviction for ABH. Appeal on basis that the prosecutor was in error in asking the complainant whether he had previously been convicted of any criminal offence. He was a man of good character. The appellant, on the other hand, who was a corporal aged 33, had, on two previous occasions, been found guilty of offences of violence. On appeal, Crown accepted that the question ought not to have been put. HELD: It has been settled for many years that it is not open to a party in chief to seek to enhance the credibility of his own witness. In R. v. Turner [1975] QB 834. It is quite clear that a prosecutor cannot seek to promote the value of his witness's testimony by leading evidence of good character nor, save in some exceptional cases, does it appear that he can seek to establish that character in re-examination. The question ought not to have been put. Appeal allowed. *(Notified by Gilbert Blades* Esq, solicitor)**. Top of Page
DB , ex parte, R-v- The Army Board of the Defence Council, 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
Derry-v-Ministry of Defence Negligence/Crown Proceedings	Times, June 8 1998, QBD
The exemption from liability afforded by section 10(1) of the Crown Proceedings Act 1947 applied where a military doctor negligently failed to diagnose a spontaneous carcinoma with the resultant progression of the disease. Top of Page
Dodman, R-v- Army Act/S.69/mens rea	CMAC, 13 Mar 98 (Case No 9703007 S2)
Section 69, Air Force Act 1955. Judge advocate has duty to consider each charge laid under this section separately and consider what mental element is either expressly or by implication included in the conduct alleged and then to give the court-martial an appropriate direction as to what the prosecution have to prove regarding the state of mind of the accused. Where the particulars do not involve specific intent then no further direction will be required other than which is appropriate to the basic mens rea. Current note to s.69 of the Air Force Manual, was wrong and misleading in its reference to a requirement that the conduct alleged must be "blameworthy". R -v- Miller (unreported) is no authority for such requirement. Top of Page
Duncan and McWilliams; Secretary Of State For Defence -v- Compensation/impact of medical treatment	[2009] EWCA Civ 1043 Court of Appeal, 12 Oct 2009
The Court of Appeal considered the effect of medical treatment on compensation claims by service personnel in this well publicised case. The government was testing the proper meaning of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2005, SI 2005/439 by appealing against awards made to a corporal in the army and to a marine. Court of Appeal found largely in favour of the two claimants but it did allow the MoD's appeal in certain respects and held the government was entirely justified in bringing the appeal, at least from a legal point of view. It sought to clarify some important and difficult issues relating to the construction of the scheme. The main issue of general interest considered by the Court of Appeal was described by Elias LJ as: "in what circumstances may injuries resulting from the medical treatment justify the payment of additional compensation, either by being treated as a separate injury, or as a consequence of rendering the initiating injury more serious?" The answer given by the Court of Appeal (para 75 of the judgment) is that "injuries which are consequential upon medical treatment should be compensated under this Scheme where they flow from risks which are inherent in carrying out that treatment. However, the immediate consequences of the treatment itself, such as pain and the physical intrusion which necessarily follows any surgery and is an intrinsic in the cure, will not merit any additional award. Nor can compensation be given for negligent medical treatment (unless the proviso [to art 11 noted above] applies). That, of course, would be dealt with by a separate claim against those responsible". (Extracted from summary from Employment Law Web Updater of 13 October 2009). Coram: Lord Justice Keene, Lord Justice Carnwath, Lord Justice Elias Appellant : Ms Nathalie Lieven QC and Mr Andrew Henshaw (instructed by The Treasury Solicitor) ; Respondent: Mr Derek Sweeting QC, Mr Jeffrey Jupp and Mr Hugh Lyons (instructed by Messrs Lovells LLP) Top of Page
Dundon, R-v- 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
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
Ellis, R v Sentencing, child pornography	(2008), 10 October Höhne Court-Martial Centre
Trial by Court-Martial in Germany. D admitted 17 specimen charges of making an indecent photograph of a child. Sentenced to be dismissed from the service and imprisoned for two years. Coram: Judge Advocate Michael Elsom Prosecution: : Not mentioned. Defendant: Chris Hill. Top of Page
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: Each State is competent to organise its own system of military discipline and enjoys in the matter a certain margin of appreciation. In order to establish whether a disciplinary penalty deviates from the normal conditions of life within the armed forces of the Contracting States, account should be taken of a whole range of factors such as the nature, duration, effects and manner of execution of the penalty or measure in question. The Convention without any doubt allows the States, in the performance of their function as guardians of the public interest, to maintain or establish a distinction between criminal law and disciplinary law, and to draw the dividing line, but only subject to certain conditions. The Convention leaves the States free to designate as a criminal offence an act or omission not constituting the normal exercise of one of the rights that it protects. But, if the Contracting States were able at their discretion to classify an offence as disciplinary instead of criminal, or to prosecute the author of a "mixed" offence on the disciplinary rather than on the criminal plane, the operation of the fundamental clauses of Articles 6 and 7 (art. 6, art. 7) would be subordinated to their sovereign will. The Court must specify, limiting itself to the sphere of military service, how it will determine whether a given "charge" vested by the State in question - as in the present case - with a disciplinary character nonetheless counts as "criminal" within the meaning of Article 6 (art. 6). o it is first necessary to know whether the provision(s) defining the offence charged belong, according to the legal system of the respondent State, to criminal law, disciplinary law or both concurrently. This however provides no more than a starting point. o The indications so afforded have only a formal and relative value and must be examined in the light of the common denominator of the respective legislation of the various Contracting States. In other words, the categorisation made by domestic law must be judged against the objective standards of other Convention countries in respect of the same conduct. o The very nature of the offence is a factor of greater import. o The degree of severity of the penalty that the person concerned risks incurring Top of Page
Eydmann and others , R -v- 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
Falls, R-v- Trial/Question from Court	12 December 97, CMAC
Where a question was raised by a member of the court, the judge advocate does not have to deal with it forthwith if he feels his summing-up would adequately deal with the matter. Top of Page
Findlay-v-UK Human Rights/Fair Trial/Impartiality	[1997] 3 C.L. 342
The first service case brought questioning the impartiality of the court-martial system. The convening officer's role was criticised as being too closely associated with the pre-trial, trial and post-trial procedures, such that there was the appearance of partiality. This decision was instrumental in the creation in April 1997 of an independent Army Prosecuting Authority. Top of Page
Fletcher; Secretary Of State For Defence -v- Employment Tribunal/Sexual Harassment/Basis for exemplary damages	[2009] UKEAT 0044_09_0910 EAT judgment 9 October 2009
The EAT held that the employment tribunal incorrectly assessed aggravated damages by awarding a perversely high sum and wrongly awarded exemplary damages because there was no behaviour which crossed the exceptionally high threshold to make them applicable. Kerry Fletcher won her claim against the Army for sexual harassment and victimisation. It was a particularly nasty case (for details see emplaw webupdater for 24 January 2008) and the employment tribunal awarded: £30,000 injury to feelings; £20,000 aggravated damages; £50,000 exemplary damages; and £10,000 costs, plus other pecuniary losses. The MOD appealed in respect of the basis for and amount of aggravated damages and the same in respect of exemplary damages. The MoD argued that there were elements of overlap and double recovery. The MOD won, in that the award of exemplary damages was set aside and that of aggravated damages was reduced to £8,000. Coram: Slade J, Mrs R Chapman, Mr D Welch Appellants : Miss Monica Carrs-Frisk QC, Mr Ashley Serr; Respondent: Mr John Mackenzie Top of Page
Fordham -v- R Human Rights/Fair Trial	CMAC, 3 Oct [2003] EWCA Crim 2644
Accused convicted at HMS Nelson of one offence of indecent assault. Sentenced to be dismissed from navy and to be disrated to Petty Officer, to be deprived of three good conduct badges and to suffer consequential penalties. He was acquitted of 2 other charges. He appealed out of time, to the CMAC. Grounds: 1. – 3. failure to direct/misdirection; 4. the court-martial process infringed the applicant’s right to a fair and public hearing under §6 of the ECHR. Leave refused by the single judge. Applicant argued that the case of Skuse was wrongly decided. HELD: Skuse is a decision binding on this court. Moreover, the application of its nature indicated it was hopelessly out of time. Application refused. Coram: The Vice President, McCombe and Cox JJ For Appellant, M Barlow Esq, For Crown, S Crozier Esq Top of Page
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
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
Gemmell , R -v- 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
Gillespie, R-v- Human RIghts/Fair Trial/Findlay	13 November 98, CMAC (Unreported )
Trial by GCM in September 1995. Convicted on 1 count of s.18 grievous bodily harm with intent and 1 count of actual bodily harm. Sentenced to 3 ½ years imprisonment. Members of court-martial selected from outside chain of command of Convening Officer. Granted leave to Appeal on the Findlay point that court was not an impartial tribunal. HELD: Findlay did not decide that the court-martial system was unfair but, rather, that it did not appear to be independent and impartial. As a result of the European Commission's decision (ie before the European Court decided the point), court-martial procedure was amended and court members were selected from outside chain of command of Convening Officer. There was no objective reason to perceive lack of independence or impartiality. It was misconceived to quote Findlay. The Court-Martial Appeal Court can only interfere with a conviction if that conviction appears unsafe. Their Lordships refused to certify a point of public importance. Top of Page
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
Greig, R -v- Human RIghts/Fair Trial/Reasonable Time	DCM, RAF Aldergrove, 17th October 2000 JA Camp
Application brought under Art 6(1) of ECHR that trial not in a "reasonable time". 3 charges of Breach of Standing orders. Comparator being the magistrates court practice of charge laid within 6 months. In this case direction to charge issued eight and half months after sufficient information in police knowledge. DCM held after 10 1/2 months. Defence Comment: this was the first RAF court martial after 2 Oct 2000, and miltary courts have not had to worry about delay before unless it was so long as to be worthy of an abuse of process application. The delay point is endemic within the military system because the police do not themselves charge suspects, but refer charges to the unit even if the CO cannot deal ie s70 offences. There are seven stages of referral in the military system to reach the equivalent of the civilian referral direct from police to DPP. There was a side issue with the convening order not appearing to be correctly signed. CMAU witness seemed to indicate that RAF CMAU were not properly authorised to convene courts martial, only holding delegated powers to do so. The JA ordered review of all cases that may be affected. Reported by: Lewis Cherry , solicitor, (Email ), of McCartan Turkington Breen, 88 Victoria Street, Belfast. (the firm deals with all aspects of service law and conditions). Top of Page
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
H.A., R-v- Sentencing	CMAC, 3 Apr 2000, Case Nº99/4214/S2
Accused was a 34 year-old Sgt Convicted of 2 charges of indecency with a child and 3 charges of indecent assault. Sentenced to 2 years' imprisonment and dismissal with disgrace. The court did not accept the Accused was genuinely remorseful. He had pleaded not guilty and made the victims give evidence by TV link. It was taken into account that imprisonment would have a devastating effect on the family. HELD no credit could be given for a plea. The court observed that grave financial consequences can result from criminal conduct to many in positions of responsibility in civilian life: such consequences are not limited to the Service context. What is necessary is that courts-martial, and the CMAC when called upon to review sentences, should take into account the special considerations which can arise in relation to offences committed in a Service context which did not arise in relation to offenecs committed in a civilian context. Coram: Rose LJ, Sullivan and Silber JJ. Top of Page
Hathaway, R-v- Trial/Abuse of Process/Sentencing	CMAC, 11 Apr 2000 Case Nº 199905575/S2
Accused convicted of indecent assault. He unsuccessfully alleged an abuse of process in that his superior officer spoke to him after the incident and said that if the complainant wished to make a complaint, then further action would be taken. In relation to his financial loss consequent upon dismissal, Sullivan J said , "As to sentence, whilst it is true that a court-martial does have to consider the financial consequences of dismissal, provided it does consider that factor then it, like any other professional disciplinary tribunal, is in the best position to decide whether dismissal is required." Coram: Rose, LJ, Sullivan and Silber JJ. Top of Page
Hood-v-United Kingdom Human Rights/Summary Dealing/Detention	[1999] 18 Feb , ECHR Reference REF00000964.
Prior to court-martial, accused detained on decision of his Commanding Officer. Habeas corpus unsuccessfully pursued. Court followed, inter alia, previous judgment in Huber v. Switzerland (23 October 1990) holding that, if the officer authorised by law to decide on the pre-trial detention of an accused is liable to intervene later in the proceedings as a representative of the prosecuting authority, then that officer could not be regarded as being independent of the parties at the time the decision on the accused's pre-trial detention was taken. Having found that the Commanding Officer was liable to play a central role in the later prosecution of the case against the applicant, the applicant's misgivings about his CO's impartiality were objectively justified. It also considered that that officer's responsibility for discipline and order in his command provided an additional reason to doubt his impartiality. Held unanimously: there had been a violation of Article 5 §§ 3 and 5 (right to liberty) and, following Findlay, of Article 6 § 1 (right to a fair trial) of the Convention. Under Article 41 the Court awarded GBP 10,500 for legal costs and expenses. [Comment: This case arose before the AFDA 2000 whcih created the Summary Appeal Court andmoved the right of election to the beginning of the summary dealing, so that the accused now elects whether to be tried by a compliant court-martial or not. If not, he has the right to appeal to a compliant court, the SAC.] See also Jordan -v- UK, Application N° 00030280/96, 14 Mar 2000 Top of Page
Hunt & Miller -v- United Kingdom ECHR/article 8/sexual orientation/discrimination	(2009) Applications nos. 10578/05 and 10605/05 Handed down 23 June 2009
The applicants were serving members of the United Kingdom armed forces. The first applicant was a trained medical assistant and the second applicant was an electrician by trade. They claimed that they were subject to investigations into their sexual orientation and that during the investigations they were asked intimate and explicit questions. The applicants complained under Article 8 of the Convention that the investigations into their sexual orientation and their constructive dismissal breached their right to respect for private life. They further complained under Article 13 that they had no domestic remedy to address the violations of their Article 8 rights. The ECtHR hearing of the joined cases of Hunt & Miller v United Kingdom Case nos 10578/05 and 10605/05 took place on 21st October 2008. On 24 March 2009 and on 25 March 2009 the applicants and the Government respectively submitted formal declarations accepting a friendly settlement of the cases. The claims against the UK Government now dismissed by the ECtHR on settlement. Top of Page
In re Times Newspapers Ltd and Another Administration of Justice/Anonymity of Defendants/Contempt of Court Act 1981	Courts-Martial Appeal Court Published in The Times, October 31, 2008 [2008] EWCA Crim 2396 See also: [2008] EWCA Crim 2559
To be entitled to make any order for anonymity for all or any of a number of defendants in a case in which no applicable statute provided a power justifying such an order, a court had to have regard to the relevant tests identified at common law, namely, whether, absent such an order, the administration of justice would be seriously affected or there was a real and immediate risk to the life of any of the defendants. The Courts-Martial Appeal Court so stated when giving its reserved reasons for having, on August 7, 2008, allowed the appeals of Times Newspapers Ltd and Guardian News and Media Ltd from an order of Judge Blackett, Judge Advocate-General, on February 4, 2008, ostensibly made pursuant to section 11 of the Contempt of Court Act 1981 and section 94(2) of the Army Act 1955 in court-martial proceedings against six soldiers, A, B, C, D, E, and F, charged with a £3,000 conspiracy to defraud. Advocates: Mr Hugh Tomlinson QC and Mr Paul Bennett, solicitor, for A, C, D, E and F; Mr John Mackenzie, solicitor, and Mr Stuart Lindsay for B; Mr Gavin Millar, QC and Mr Anthony Hudson for Times Newspapers and Guardian News and Media; Mr Nadim Bashir for the Crown; Mr Jonathan Glasson for the Secretary of State for Defence as interested party. Top of Page
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
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
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
Jackson (Robert Valentine) -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
Jackson, R-v- 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
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
Johnson, R-v- 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
Johnson, R-v- 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
Johnson (Joseph), R-v- 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
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
Jordan, ex parte, R-v- Court-Martial Administration Officer 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
Kahn -v- R Summary Appeal Court/Human Rights/Art 9/Conscientious Objection	SAC (RAF), 14 Sep 03 unreported [2004] EWHC 2230 (Admin)
K enlisted in the RAF in Dec 99 as a medical assistant. His application for transfer to an Info Tech trade was turned down. On 15 Jan 01 Kahn applied to PVR, and he was discharged from the RAF on 24 Apr 01. He had a reserve liability of six years. On 7 Jan 03 he was called up for the purposes of Op Telic (Iraq). At this stage his was not told of any right to object on grounds of conscience. K attended the call-up centre and was taken back into RAF Service. It was made quite clear to K there was no intention to send him to Iraq and the purpose of mobilising him and others were as back fillers. K failed to attend for duty on 24 Feb 03. He sought to avoid his call up liability by citing his mother’s mental health problems and the difficulties in the family restaurant running at a profit if he was not able to work there. He later cited his unwillingness to take arms against fellow muslims. He based his case on a breach of Article 14 ECHR and argued that if a person held a genuine objection on the grounds of conscience based on religious beliefs then were that not to form a defence in law in relation to a charge of disobeying a lawful order the law of England and Wales would be incompatible with the rights guaranteed by Article 9 and Article 14. The main plank of the respondent’s argument was that there was nothing in jurisprudence to support an absolute and unfettered right of refusal to compulsory service on the grounds of conscience or religion. Rights under Article 9 are closely confined. A conscientious objector cannot pick and chose in relation to particular conflicts. The Court made two findings of fact. (1)They determined that the appellant did not know until later that there was a possibility of claiming that his conscience did not allow him to obey the call up notice he had received and that it was not until his interview with an officer on 5 Mar after he had been arrested that he was made aware of the formal procedure for making such a claim. (2) The Court also found that the reasons why the appellant refused to report for duty on 24 Feb were a combination of factors which included concerns for his family, especially his mother, dislike of his trade, and a genuine and deep belief that the impending invasion of Iraq was wrong and that to be in any way a participant in it would be contrary to his religion. Without that belief he probably would not have refused to return to duty. Held: In a detailed and reasoned judment, the JA said in the Court’s judgement the authorities were overwhelming in leading to the conclusion that, as the law stood at the present time, Article 9 of the Convention gave no right to refusal of compulsory military service on grounds of conscience or of religion (or of a mixture of both). It therefore followed that a claim to such a right could not prove a defence to breaking a law which has been democratically passed and which was not disproportionate to the right of the State which that law seeks to enforce. Appeal dismissed. Coram:JA Bayliss For Appellant, J Mason Esq, For Crown, A McGrigor Esq Top of Page
Kipling, Queen-v- Human Rights/Canada	CMAC of Canada, 11 Jan 2002
Canadian CMAC considered (1) Whether members of the Canadian Armed Forces may be prosecuted for refusing to submit to vaccination when ordered to do so if, in the opinion of a military court, the vaccine was "unsafe and hazardous"; (2) Whether such a decision should be made by a standing court-martial in a proceeding said to be a plea in bar of trial; (3) whether the proceedings in the appeal court require a pronouncement as to the "constitutional validity, application or operability" of the relevant provision (s.126 National Defence Act) and, if so, whether it can be done without service of a notice on the attorneys general. HELD: Section 126 does three things: (1) it makes clear by implication that an order to submit to vaccination is an order authorised by parliament; (2) it exposes to prosecution anyone who refuses to obey that order; (3) it allows that person to raise the defence of "reasonable excuse". Re-trial ordered. Queen-v-Kipling. Reported by E Fidell (NIMJ) Top of Page
Kitchen, R-v- Appeal/Conviction/Sentencing	28 Jan 2003 CMAC
Application by a Lt Col for leave to appeal against conviction by court-martial (JA Burn) on two charges of indecent assault and appeal against sentence of 28 days imprisonment. Grounds of application: (1) failure to allow half-time submission and (2) failure to give Lucas direction. Against sentence: financial consequences would give rise to a loss of over £250,000 in pension; sentence of imprisonment excessive. HELD: Leave to appeal conviction refused. On the matter of sentence, the court-martial was comprised of experienced military officers who had been apprised of the financial factors when deliberating on sentence. Therefore, it was not for the CMAC to interfere in the exercise of their discretion. Dismissal was a separate punishment which could be ordered by the court-martial. The sentence of imprisonment was not wrong in principle and was not manifestly excessive. Coram: Longmore, LJ, Sachs and Davis, JJ Top of Page
Kreil (Tanja)-v- Federal Republic of Germany Human Rights/equal treatment for men and women/EC law/ECJ	26 October 1999, European Court of Justice Case C-285/98
The Verwaltungsgericht (Administrative Court), Hanover, referred to the Court for a preliminary ruling under Article 177 of the EC Treaty (now Article 234 EC) a question on the interpretation of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ 1976 L 39, p. 40, hereinafter 'the Directive'), in particular Article 2 thereof. The question raised in proceedings between Tanja Kreil and the Bundesrepublik Deutschland concerned the refusal to engage her in the maintenance (weapon electronics) branch of the Bundeswehr. The question is therefore whether, in the circumstances of the present case, the measures taken by the national authorities, in the exercise of the discretion which they are recognised to enjoy, do in fact have the purpose of guaranteeing public security and whether they are appropriate and necessary to achieve that aim. The refusal to engage the applicant in the main proceedings in the service of the Bundeswehr in which she wished to be employed was based on provisions of German law which barred women outright from military posts involving the use of arms and which allow women access only to the medical and military-music services. In view of its scope, such an exclusion, which applies to almost all military posts in the Bundeswehr, cannot be regarded as a derogating measure justified by the specific nature of the posts in question or by the particular context in which the activities in question are carried out. However, the derogations provided for in Article 2(2) of the Directive can apply only to specific activities. Even taking account of the discretion which they have as regards the possibility of maintaining the exclusion in question, the national authorities could not, without contravening the principle of proportionality, adopt the general position that the composition of all armed units in the Bundeswehr had to remain exclusively male. See also: [BBC News, 27 October, 2000] 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
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
Lawler, R-v- Sentencing	News Item Times, 29 September1998, GCM Bulford
Plea of Guilty. First instance decision. When drunk, officer went on the rampage in the officers' mess, blasting bedroom doors with a shotgun. 5 charges of Criminal Damage and 1 charge of Disobedience to Standing Orders. He afterwards resigned his commission through shame. Brilliant cadet at Sandhurst. Service in Bosnia. Sentenced to 3 months imprisonment. [Judge Advocate Camp]. Top of Page
Lee, R-v- 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
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
Liddell -v- R Sentencing	CMAC, 3 Oct 2003
Training NCO found guilty of the theft of £100 from a recruit. Sentenced to 8 months detention and reduced to the ranks. On appeal, argued that the sentence was wrong in principle, as non-custodial alternatives available and, in any event, the sentence was too long. HELD: although there were difficult domestic circumstances at home, he did not have the mitigation of a guilty plea to a serious offence of breach of trust. Such offences attract imprisonment in civilian life which most likely means the loss of their job. Had imprisonment been awarded here, the Appellant would have been dismissed the army. A merciful course had been taken. One of the benefits of detention was the training that the individual received. In this case it had clearly borne fruit as he had been promoted immediately upon relaese to LCpl and was back up to the rank of Cpl within 9 months. The sentence of detention was not wrong in principle, neither was it manifestly excessive. Coram: Scott-Baker, LJ, Henriques and Burnton, JJ For Appellant, Ms Livingston, For Crown, J Mason Esq Top of Page
The Queen on the application of Deo Prakash Limbu and Ors and Secretary of State for the Home Department and Ors Judicial Review/Gurkhas/Immigration Rules	[2008] EWHC 2261 (Admin) High Court (Administrative Court) 30th September 2008
Applications for judicial reviews pursuant to leave granted in July 2008 by Sullivan J. Five of the Claimants were veterans of the Brigade of Gurkhas and one was a widow of such a veteran. Each had applied for entry clearance to come to the United Kingdom for settlement here on the basis of past military service with the Crown. In each case this service came to an end before the 1st July 1997. Each had been refused entry clearance on various dates between December 2006 and February 2007 and each appealed to the Asylum and Immigration Tribunal (AIT) on the basis that the decision was not in accordance with the law and in particular was contrary to the Human Rights Act 1998. HELD There ws substance in the Claimants' ground for attack on the operative policy. The policy was so ambiguous as to the expression of its scope as to mislead applicants, entry clearance officers and immigration judges alike as to what was a sufficient reason to substantiate a discretionary claim to settlement here. it is difficult to see why the MOD should not itself welcome clarity and the honouring of a historic debt. The court was conscious that at the heart of military life and the sacrifices that soldiers make in the discharge of their duties is the Military Covenant. Rewarding long and distinguished service by the grant of residence in the country for which the service was performed would be a vindication and an enhancement of this covenant. Coram: Blake, J Claimants: : Mr. Edward Fitzgerald QC, Mr. Mark Henderson and Mr. Mark O'Connor . Defendants: Mr. Steven Kovats Top of Page
Love, R-v- Sentencing	EWCA, 1997 and (1 Cr.App. 458, CMAC)
In considering appeals against sentence under section 17 of the Armed Forces Act 1996, which amended section 8 of the Courts-Martial Appeals Act 1968, the CMAC exercised a somewhat hybrid jurisdiction. The court had to assess the seriousness of the offending in the context of service life and the need to maintain the discipline and efficiency of the Armed Forces. See the ECHR ruling on the inadmissibility of his complaint about investigations into homosexuality and consequent dismissal further to a Ministry of Defence policy, in place at the time, against homosexuals in the armed forces: Love and Others -v- the United Kingdom [13/12/2005] Top of Page
LSA, The Queen -and- Prosecution Appeal/Abuse of Process	[2008] EWCA Crim 1034 CMAC
Interlocutory appeal by the prosecution in a Court Martial, under article 4(8) Courts-Martial (Prosecution Appeals) Order 2006; SI 2006 No 1786. Defendant charged with two offences contrary to the Station Standing Orders of her military base of (i) driving when unfit to do so through drink and (ii) dangerous driving. The offences were said to have been committed on the same evening. The Judge Advocate (Judge Advocate McGrigor) ruled (first) that they were in effect offences charged on the same facts. Having so ruled, he went on to direct acquittal on the charge of unfitness to drive. Later in a second ruling he stayed the dangerous driving charge as an abuse of the process of the court. His reasoning for both rulings was based on a note at paragraph 32-29 of Archbold ("Where a defendant is facing two charges, one of dangerous driving and the other of driving with excess alcohol, based upon the same facts, the prosecution should choose either to proceed with the charge of dangerous driving and consider bringing the lesser charge if the defendant is acquitted, or to proceed with the excess alcohol charge alone. The invariable rule is that where a person is tried on a lesser offence, he is not to be tried again on the same facts for a more serious offence) which in turn says that it is based upon R v Forest of Dean Justices, ex p Farley [1990] RTR 228. The Crown submitted on appeal that both those rulings were wrong. However, at the end of the prosecution case at trial the Defence applied for a stay on the basis of abuse of process. The Judge Advocate ruled, in effect, that the two charges were founded on the same facts and the cumulative result was oppressive. The prosecution had indicated that should he so rule they would wish to proceed on the dangerous driving charge alone. The Judge Advocate then directed the court to find the accused not guilty in relation to the unfit to drive charge, which was withdrawn. After the luncheon adjournment, the Defence submitted that since there had been a verdict of acquittal on the unfitness to drive charge, it was an abuse of process for the defendant then to be tried on the dangerous driving charge. No-one went to look at ex p Farley [1990] RTR 228. The judge advocate ruled that a further trial on a more serious offence would amount to an abuse of process. The following day the prosecutor contacted the Judge Advocate and asked him to issue the statutory form PA1 giving leave to appeal. The Judge Advocate did so. HELD: Appeal dismissed for want of jurisdiction. The prosecution can only appeal if it tells the court it is going to do so, either immediately following the ruling or after time to reflect has been granted. The prosecution may not inform the court that it intends to appeal, unless, at or before that time, it informs the court that it agrees that the accused in relation to that charge should be acquitted of that charge if either of the conditions mentioned in paragraph (9) is fulfilled (failure to obtain leave to appeal or abandonment of the appeal). Article 4 of the Order is in terms materially identical to section 58 Criminal Justice Act 2003. Prosecutors appealing against rulings must give the article 4(8)/section 58(8) undertaking in open court at the time of invoking the right of appeal. Expressing itself obiter, the court said it had the benefit of careful submissions on both sides as to the effect of ex p Farley and the accuracy of the passage in Archbold and that it was a great pity that the report in ex p Farley was not obtained. (see §33)."We are not to be taken, by silence, to endorse the decision that the correct way to give effect to the first ruling in this case, even if it were right, was to direct acquittal. The more usual way of dealing with the matter would be to amend the indictment/charge sheet by deletion of the offending charge, or (more often) to discharge the court from giving a verdict upon it. Such a charge could also be stayed if to prosecute it were truly an abuse of the court. Coram: Lord Justice Hughes, Mr Justice Treacy, Sir Peter Cresswell Appellant: Mr R Whittam QC and Mr F Osman (instructed by Royal Air Force Prosecuting Authority) for the Crown (neither below); Respondent: Lord Thomas of Gresford QC (instructed by Wilkin Chapman) for the Respondent (not below) Top of Page
Lustig-Prean and Beckett v The United Kingdom Human Rights/Homosexuality/Armed Forces	26 Oct 99, ECtHR
Both applicants complained that the investigations into their homosexuality and their discharge from the Royal Navy on the sole ground that they are homosexual constituted violations of Article 8 of the Covention taken alone and in conjunction with Article 14. Court unanimously held 1. that there has been a violation of Article·8 of the Convention; 2. that no separate issue arises under Article 14 of the Convention taken in conjunction with Article 8; 3. that the question of the application of Article 41 of the Convention is not ready for decision;. Partially dissenting opinion of Judge Loucaides disagreed that there had been a violation of Article 8 by reason of the applicants' discharge from the armed forces on account of their homosexuality. The aim of not allowing homosexuals in the armed forces was to ensure the operational effectiveness of the armed forces and to this extent the resulting interferences pursued the legitimate aims of "the interests of national security" and "the prevention of disorder". Appns nos. 31417/96 and 32377/96 Top of Page
M -v- Judge Advocate General Judicial Review/Bail	Divisional Court, 29 Jul 2003 Unreported
At the end of the accused's trial, counsel made an application the accused should be released on bail pending an appeal to the CMAC. The judge advocate held there was no power to determine the issue of bail at this stage in the case. Also there was no power even for the CMAC to determine bail pending appeal. Claimant sought judicial review of the failure to grant bail and a declaration that a High Court judge has an inherent power to grant bail. In the High Court it was pointed out by counsel for the JAG that: (a) A judge advocate has no power to grant bail, therefore in acting the way he did he had not acted unreasonably (b) There is an inherent power in the High Court to grant bail (c) It is proposed to bring into force the bail provisions contained in the AFA 2001 later this year. The judge stated that rule 81 of the CM(A)R made it clear that there was no jurisdiction to grant bail because, when each charge on the charge-sheet has been disposed of, the president shall announce in open court that the trial is concluded whereupon the judge advocate shall dissolve the court. The court-martial is not a full time court and cannot exercise powers when it does not exist. He said that perhaps the lacuna was filled by the High Court power to grant bail to persons accused or convicted, but no such application from the claimant was before the court. There being no arguable case before him, permission was refused. All the same, the judge was troubled by the ECHR implications and said that the requirements of the Human Rights Act and art. 5 of the ECHR indicate a strong case for the existence of such a power, although the position of a convicted person may be different to that of a person accused. In his mind there was much to be said for the convicting court to have that power because it had immediate knowledge of the facts. But there should also be a further power to appeal further on the matter of bail. Coram: Burnton, J Top of Page
Martin (Alan James), R -v- 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
Martin -v- United Kingdom Trial/Civilian/Impartiality/	[2006] Application no. 40426/98 ECtHR, 24 October 2006 See also [HTML version]
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
Martin, R-v- Trial/Jurisdiction/Civilian	[1997] House of Lords
Trial by court-martial, held in Germany under the provisions of the Army Act 1955, of a 17 year old civilian male dependant charged with murder was not an abuse of process. (Direct link: R -v- Martin ). Top of Page
Martin, R-v- Trial/Jurisdiction/Civilian	[1996] Courts-Martial Appeal Court
The Smith Bernal transcript reference for this decision is: Date: 30/07/96; Division: Criminal; Case No: 96/6330/S2 Top of Page
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
Matthews -v- Ministry of Defence Negligence/Crown Proceedings	[2002] EWCA Civ 773, Court of Appeal 29 May 2002
S 10 of the Crown Proceedings Act 1947, which exempted the Crown from liability in tort in respect of injuries to members of the armed forces attributable to acts or omissions occurring prior to 1987, was a substantive rather than a procedural rule which deprived servicemen of an effective cause of action in negligence if the circumstances in s10(1)(a)(2)(a) applied. Art 6 in Sch 1 to the Human Rights Act 1998 was not engaged by a provision of substantive law, even where it exempted certain groups from liability where others would be liable, and art 6 accordingly had no application to a case falling within s 10 (reserved judgment, allowing an appeal by the defendant, the Ministry of Defence from the decision of Keith J ([2002] EWHC 13 (QB). Coram: Lord Philiips, MR, Mummery and Hale, LJJ.) Top of Page
May, R-v- Trial/Manslaughter/Crown Immunity	Winchester Crown Court, 12 Jul 2002 Turner, J
17-year-old Pierre Bolangi drowned at the Aldershot Army School of Physical Training during an endurance exercise for youth players from Charlton Athletic. They were attending a residential course at Aldershot, in August 2000. SSgt May, an army physical training instructor, was found guilty of manslaughter through gross negligence. He was fined £1,500. Turner J said he believed the Army had made him a scapegoat for its own failures to take adequate health and safety precautions. The Army could not be held responsible because it was immune from prosecution. BBC, 12 Jul 2002 Top of Page
McDaid (& 5 Ors) -v- United Kingdom Human Rights/Fair Trial	CMAC, 17th October 2000
The European Court of Human Rights struck six applications out of its list, as a friendly settlement based on respect for human rights had been found. Agreement had been reached on the basis of payment, by the United Kingdom authorities, of the applicants’ legal costs and expenses in court-martial proceedings with respect to which they alleged that they had not obtained a fair trial, as guaranteed by article 6.1 of the European Convention on Human Rights. On May 31, 1999 the, now defunct, European Commission of Human Rights unanimously concluded that there had been a violation of article 6.1. (These cases related to the pre-1996 position, where the Convening Authority appointed the prosecutor, members of the court, decided the charges and acted as confirming officer. See Findlay -v- UK) Top of Page
McEnhill, R-v- Sentencing	Times 22 January 1999, CMAC
A court-martial should take account of the financial and career consequences on a defendant before imposing a prison sentence. Appeal of CSgt Patrick McEnhill allowed, against sentence of 112 days imprisonment, dismissal from service and reduction to ranks, on a guilty plea to indecent assault and disobedience to standing orders. CMAC substituted a sentence of reduction to the rank of sergeant for sentence of imprisonment. The military penalty of imprisonment, distinct from the civilian one, led to the appellant's dismissal from service, resulting in automatic loss of salary for the remaining four years of his service as well as his terminal grant and accrued pension rights to the age of 60, all of a total value exceeding £240,000. Those consequences had to be taken into account and accordingly the sentence of imprisonment was unjustifiable. Top of Page
McKendry, R-v- Sentencing/PPCM	CMAC, Times, 16 Mar 2001]
It was not for the Courts-Martial Appeal Court to impose a standard policy across the different Armed Forces with respect to sentencing for offences of being absent without leave. The problem of servicemen being absent without leave arose in different ways in each service and might require different solutions. Although a serviceman in the Army might serve a longer period of detention, one in the Royal Navy was more likely to be dismissed the service for being absent without leave for a shorter period. That was a difference rather than disparity. Top of Page
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
Metcalfe , R-v- Sentencing/Parity of sentenceDismissal	[1998] EWCA Crim 3406 CMAC, 30th November, 1998
Private Metcalfe, pleaded guilty to two offences of assault occasioning actual bodily harm. He was sentenced to be dismissed from Her Majesty's Service and to undergo detention for one year. His co-accused, Private Nelson, pleaded guilty to one offence of unlawful wounding, and to two offences of assault occasioning actual bodily harm. He was likewise sentenced to be dismissed from Her Majesty's Service and to undergo detention for one year. Metcalfe appealed against sentence. HELD: Two questions had to be decided: 1. should the appellant have received a lesser sentence than Nelson; and 2. was the sentence manifestly excessive? The JA in his sentencing remarks explained that the question whether to differentiate between the appellant and Nelson had been specifically considered by the court. The Army Reviewing Authority was right not to interfere with that decision despite the advice of the Vice Judge Advocate General. Sentence of dismissal and detention for one year was not manifestly excessive, R v Love considered. Coram: Bingham LCJ, Forbes and Harrison JJ For Appellant, DJ RIchards Esq, For Crown, A Niblett Esq. Top of Page
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
Morris-v- R Sentencing	CMAC, 3 Oct 2003
Pleaded guilty before a DCM to one charge of s.20 wounding and sentenced to 2 years imprisonment and dismissal. Sentence reduced very shortly afterwards by the Reviewing Authority, who substituted 11 months detention, thereby allowing the appellant to remain in the Army. HELD: The court considered the domestic circumstances of the appellant and his guilty plea, but regarded the offence as a serious one. There was a need for deterence. However, in the Court's view, a Crown Court would not have imposed anything like a sentence of 2 years imprisonment. It would have more likely been a short sentence. The appellant had much mitigation and the Reviewing Authority clearly took this into account and substituted detention, thereby meeting the justice of the case. In the court's judgment, the sentence of detention although at the upper end, was not manifestly excessive and allowed the appellant to continue his army career. Coram: Scott-Baker, LJ, Henriques and Burnton, JJ For Appellant, J Mason Esq, For Crown, WN May Esq. Top of Page
Morris-v-United Kingdom Human Rights/Fair Trial	ECtHR, 26 Feb 2002
Challenge to the post-Findlay court-martial system alleging (a) denial of a hearing before an independent and impartial tribunal on account of various structural defects in the court martial system, (b) the hearing before the court martial was not fair due to the actions of the prosecuting authorities and his own defending officer, and (c) denial of right to free legal assistance. Held: (1) The Court recalled its own case-law which illustrates that a military court can, in principle, constitute an "independent and impartial tribunal" for the purposes of Article 6 § 1 of the Convention; (2) Although the DALS is also the Prosecuting Authority, the Court is of the view that sufficient safeguards of independence exist in that, in his advisory role, he does not deal with disciplinary matters and, in any event, he is in that role answerable to the Adjutant General, while as Prosecuting Authority he is answerable to the Attorney General; (3) The presence of the Permanent President did not call into question the independence of the court martial. Rather, he was a significant guarantee of independence on an otherwise ad hoc tribunal; (4) the two serving officers who sat on the applicant’s court martial were not appointed for any fixed period of time. Rather, they were appointed on a purely ad hoc basis, in the knowledge that they would return to their ordinary military duties at the end of the proceedings. The ad hoc nature of their appointment made the need for the presence of safeguards against outside pressures all the more important in this case. In particular, that those officers had no legal training, remained subject to army discipline and reports,and there was no statutory or other bar to their being made subject to external army influence when sitting on the case; (5) there was no violation of Article 6 § 3(c) where an individual was required to pay a contribution to the cost of providing legal assistance and had sufficient means to pay; (6) the reviewing authority was empowered to quash the applicant’s conviction and the sentence imposed by the court martial. The very fact that the review was conducted by such a non-judicial authority is contrary to the principle that the power to give a binding decision which may not be altered by a non-judicial authority is inherent in the very notion of “tribunal”. Reported by E Fidell (NIMJ) Top of Page
Morris-v- UK - Admissibility	ECtHR, App N° 38784/97
In a judgement delivered on 3rd July 2001 the European Court of Human Rights (Third Section) declared admissible the applicant's complaints under Article 6.1 and 6.3c of the Convention and declared inadmissible the balance of his complaint(under Article 5) arising from his detention in close arrest at Knightsbridge Barracks between 16th October 1996 and 11th November 1996 and his trial by District Court Martial on 28th May 1997 at which he was sentenced to be dismissed the service and to nine months detention for being absent without leave. The Court directed that an oral hearing be held on 23rd October 2001 and put questions to the parties namely: 1. Is the UK's court martial system, as it applied to the applicant's case, compatible with Article 6.1 ofthe Convention? In particular, does it provide an accused with a "fair hearing by an independent and impartial tribunal" bearing in mind the apparent links between the prosecuting authorities, defending officer and members of the court martial on the one hand, and senior army command on the other? 2. Does the role played by the reviewing authority bring into question the independence of the court martial or its status as a "tribunal" under Article 6.1? 3. Were any flaws in the court martial system as a whole as it applied to the applicant's case remedied by safeguards such as the presence of the judge advocate in his expanded role under the Armed Forces Act 1996 or the new rights of appeal provided by the Act? 4. On the facts of the applicant's individual case, was he denied a fair trial by virtue of the acts of the defending officer? [Reported by Mr John McKenzie] Top of Page
Mulcahy-v- Ministry of Defence Negligence/Combat Immunity	(1996) 2 All ER 758
M was a soldier who served in the Gulf War and claimed that he was blown off his feet and injured when another soldier negligently fired a field gun as M had gone in front of the gun following an order from the gun commander to collect a jerrycan of water. HELD: 1) There is no civil liability for injury caused by the negligence of persons in the course of an actual engagement with the enemy. (2) The circumstances in which M was injured constituted battle conditions. In battle conditions, there was no duty on the part of MoD to maintain a safe system of work. Appeal allowed and action struck out. Coram: Neill LJ, McCowan LJ and Sir Iain Glidewell Top of Page
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
Murray, ex.p, R-v-MOD, Trial/Sentencing/Dispute of Fact	[1997] EWHC Admin 113615 December 1997, QBD
Where, following a serviceman's plea of guilty before a court-martial to an offence of wounding, there had been a dispute of fact before sentence was passed which involved conflicting expert medical evidence, the court-martial should have given reasons for its decision not to accept the evidence put forward for the defence. The applicant also sought judicial review of the decisions of the confirming officer and the reviewing authorities declining to interfere with the sentence, denied as it was not possible to say that the sentence was a sentence which no reasonable court-martial could pass. Top of Page
Murtagh, Victor -and-The Minister For Defence, Ireland and The Attorney General Irish Army/Combat/PTSD/Failure to Treat/Liability of MoD	[2008] IEHC 292 High Court (of Ireland)
The plaintiff was a soldier in the Irish Defence Forces. On 22nd October 1986, his 21st birthday, he flew out with the 60th battalion to the Lebanon for a six month tour of duty, being his first and only tour abroad. Part of his training was as a mortar man in a weapons company. It was common ground that the 60th Battalion tour of duty was more than stressful. The plaintiff became unwell on 29th November, 1986, and was admitted to the RAP (Regimental Aid Post). He was kept in overnight and on 30th November he was allowed to return to duty with the proviso that he was not to be on duty with less than two colleagues. He witnessed further traumatic events and sought further medical help. He argued that the army doctors had or should have realised that he was of vulnerable personality and at risk and not coping with pressures of a post traumatic stress variety. He sought damages for post traumatic stress disorder, claiming the defendants were negligent in not providing remedial treatment for him following his exposure to stressful incidents. The plaintiff also sued in a separate cause of action for damages for deafness caused by negligence and breach of duty on the part of the defendants as his employer, by exposing him to excessive explosive noise levels when presumably the provision of muffs and other protection would have prevented this injury. HELD: Finding for the plaintiff. The plaintiff had to prove, on the balance of probabilities, that his injury from the post traumatic stress disorder was caused by the fault of his employer in the failure to diagnose and treat and eliminate or reduce the levels of his PTSD. He was not entitled to compensation because in his work in the army in the Lebanon he had been exposed to stress or because he suffered post traumatic stress in the course of his work as a peacekeeper amid the hostility of the various factions involved in the conflict in the Lebanon. The defendants’ doctors failed to diagnose PTSD in an immature and vulnerable 21 year old who was exhibiting numerous symptoms of acute anxiety states and had been exposed, like many of his NCOs and colleagues, to life-threatening experiences. Judgment for €305,513 and costs to be taxed in default of agreement to the plaintiff.. Coram: Budd J. Top of Page
ND, R v Sentence/Imprisonment/Length of sentence/Assault by penetration/Whether sentence manifestly excessive	[2007] EWCA Crim 1443 6 June 2007, CMAC
ND, aged 45 at the date of appeal, pleaded guilty at a general court-martial to two charges of assault by penetration, contrary to s 2(1) of the Sexual Offences Act 2003. He was sentenced by the court to seven years’ imprisonment and disqualified from working with children and dismissed, with disgrace, from Her Majesty’s Service. The seven years’ imprisonment was on each of the two charges to run concurrently. The victims were his daughters. Before the Court Martial there were victim impact statements from both girls. They described the profound effects that these offences had on each of them. The JA at trial allowed only 20% discount for his plea as he did not confess his part in these offences at the earliest opportunity when they were put to him at interview. HELD: The starting point of nine years was justified. The court when sentencing this Appellant was right to regard these offences as very serious. Both offences involved digital penetration on 14-year-old girls in respect of whom the Appellant was in a position of trust and responsibility. Coram: Gage LJ, Cresswell, Holman JJ Appellant: : D Howell for the Appellant. Respondent: D J Richards for the Crown Top of Page
Newell -v- Ministry of Defence Employment	[2002] EWHC 1006 (QB)
Officer in the Royal Army Dental Corps claimed damages for negligence concerning the ministry's handling of N's application for premature voluntary release ('PVR'). In October 1995 N applied for PVR. In February 1996 the application was refused by the Army Review Board. In May 1996 the refusal was confirmed. In July 1996 he appealed to the Army Board. In December 1997 his appeal was upheld. During that time he forewent another employment opportunity. He submitted in his claim that: (i) the ministry owed him a duty of care to handle his application for PVR fairly and in accordance with the appropriate regulations; (ii) the aforesaid duty had been breached in a number of specific ways; and (iii) the breaches had caused N foreseeable economic loss.HELD The ministry owed no duty of care to the officer in this case. Had the duty of care existed, the delay in the appeal process to the Army Board would have been negligent. In any event causation had not been established because even a reasonable delay, in the processing of his application to the army authorities, would have been sufficient to exclude him from the employment opportunity otherwise open to him. Coram: Elias J For the Plaintiff: Mr Jeffrey Bacon; For the Defendant: Mr Rabinder Singh QC Top of Page
Oakes, R -v- 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
O'Donnell, R-v- Trial/Jurisdiction	Smith Bernal, 18 Oct 99, CMAC (Case 9807999/S2)
Sergeant appellant convicted of s.47 Offences Against the Person Act 1861 occasioned to the linesman during a football match. Sentenced to be reduced to the rank of corporal and £300 stoppages of pay for compensation to the victim. Offence of assault occasioning actual bodily harm can be tried either by a civilian court or by a court martial. Appellant argued there was no jurisdiction for C-M to try the case, relying on Chap 7 of Queen's Regulations (relating to jurisdiction). Held: It is quite clear that the commanding officer is required to make a judgment and, having made that judgment, he is required to refer the matter to the civil authorities, if, in his judgment, it is one which may require to be dealt with by them. This was an offence committed by one soldier against another soldier in the course of a football match. There was no obligation upon the commanding officer to refer the facts of this case to the civilian authorities. Top of Page
Peters, R-v- Sentence/Appeal/Effect on Pension	[2005] EWCA Crim 3096 CMAC
The Appellant, an RAF policeman serving with NATO, pleaded guilty to five offences of obtaining property by deception, three offences of obtaining services by deception and three offences of theft. He asked for 60 similar offences to be taken into consideration. He was sentenced to be reduced to the rank of Senior Aircraftman, to be dismissed from Her Majesty's Service, to undergo six months detention and to pay compensation in the sum of £3,000. R v Cooney, Allam and Wood [1999] 3 AER 173 stressed the importance, when considering the sentence for a person towards the end of his 22 year period, of the financial impact dismissal would have upon him, :nbsp; The loss of pension in these circumstances is not peculiar to the armed forces. It applies to police forces. Furthermore, the loss of money on dismissal is not peculiar to either of those two organisations. An employee, shall we say, earning £30,000 a year, who is found to have stolen something from his employer is very likely to be dismissed. On dismissal, he will not then earn what he had been earning and his future employment chances are obviously reduced by the fact that he has been dismissed for theft from a previous employer. Appeal failed. Coram: Hooper LJ, Openshaw and Steel, JJ Appellant: Mr G Blades; Respondent: Mr CNW Wood. Top of Page
Phillips, Whitfield, Pleasant, McEneany, R -v- 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
Piotrowski, R -v- Sentence/handling stolen goods/possession of prohibited weapon	[2006] EWCA Crim 2934 CMAC, 7 November 2006
Renewed application for leave to appeal against sentence. Applicant pleaded guilty to handling stolen goods (charge 1) and possession of a prohibited weapon (charge 2) and using violence to a person in whose custody he was, contrary to a provision of the Army Act 1955 (charge 3). At a GCM hearing on 10th April 2006 he was sentenced to seven years' imprisonment on each of charges 1 and 2, to be served concurrently with each other, and four months' imprisonment on charge 3, to be served consecutively, making a total of seven years and four months. From this the Court Martial deducted the period he had already spent remanded in custody and arrived at a final sentence of five years and 252 days' imprisonment. He was also reduced to the ranks and dismissed the Service. The thrust of the proposed appeal was that the notional determinate sentence of seven years in respect of charges 1 and 2 was too high, and accordingly the final sentence was also too high. Held: The sentences passed in this case were not considered even arguably manifestly excessive. The renewed application was refused. Coram: Tuckey LJ; Homan J; Hodge J Non-Counsel Application; Top of Page
Preece, R-v- Sentencing	[2004] All ER (D) 96 (Apr) 6th April 2004
Charged with and pleaded guilty to being absent without leave. Tried by DCM. Previous criminal offences including absence for short periods of time and civilian offences including assault and affray. He had served a custodial sentence and had breached a community service order during his AWOL. The judge commented on the defendant's previous offences, his voluntary surrender to custody and the need to deter others from similar offences for operational reasons amongst other reasons. Sentenced to one year and 177 days' at MCTC and dismissed. HELD: The sentence was longer than required in the circumstances. Each case turned on its own facts and sentences for similar offences were not especially helpful. In the instant case, the defendant might have been sentenced in part for his previous conduct. Moreover, it was appropriate for him to be given credit for the time he had spent in custody for his civilian offences during his absence without leave. In all the circumstances, the sentence would be quashed and a sentence of nine months' detention would be substituted. The dismissal from the army would be upheld. Coram: Auld LJ, Eady and Elias JJ Crown: James Mason Esq, Appellant: Simon Reevell Esq Top of Page
Priestley, R-v- Court-Martial/ABH/Sentence/Army/soldier	[2005] EWCA Crim 1516, CMAC
19 year old soldier pleaded guilty at a DCM to ABH on a fellow soldier, being an unprovoked single blow to the jaw of the victim, rendering him unconscious, fracturing the jaw and splitting his lip. Victim made a full recovery and did not wish to continue his complaint. Sentenced to 9 months detention. Judge Advocate relied upon Clare (2002) 2 Cr App R(S) 97. HELD: Clare is not a good guide to deal with this situation. This case was essentially a matter of first impression. Nine months was a heavy sentence for this single act of violence. Sentence quashed. Six months military detention substituted. Coram: Laws, LJ, Holland and Steele JJ Crown: James Mason Esq, Appellant: M Watts Esq Top of Page
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
Purja: The Queen (on the application of Purja & Ors) -v- Ministry of Defence Employment/Pensions/ECHR	QBD Administrative Court, 21 Feb [2003]
Nepalese citizens who had been members of the Gurkha Regiment received a pension from the MOD, which was lower than British citizens received. They alleged that amounted to discrimination. Further, as married accommodation was allocated to only 25 per cent of Gurkha soldiers under a tripartite agreement made between the UK, India and Nepal in 1947, it breached Art.8 of the ECHR. They sought a declaration of a their treatment breach of their ECHR rights. HELD: claimants were not in an analogous position to British citizens in receipt of a British Army pension. British citizens were likely to retire in the UK where the costs of living were much higher than in Nepal. The claimants' pensions were quite high for Nepal and were comparable to those of salaried officers in the Nepalese Army and to pensions available in the Indian Army. The claimants human rights under Art.8 had not been breached as they were no longer serving in the British Army. [Obiter Had they been currently serving in the British Army there was a strong case that their Art.8 right to a family life would have been breached, as the policy for allocation of housing to Gurkhas was less favourable than to British soldiers]. Coram: Sullivan J Top of Page
"R" (Catherine SMITH) - and - The Assistant Deputy Coroner for Oxfordshire and – Secretary of State for Defence ECHR, jurisdiction, article 2, Right to life, soldier on active service.	[2008] EWHC 694 (Admin) - Case No: CO/4633/2007 See also: The Times, May 30, 2008 See also: Guardian, 12th April 2008 See also: Court of Appeal and below
The deceased, Jason Smith, was a private soldier in the Territorial Army. He had joined on 2 October 1992. In June 2003, he was mobilised for service in Iraq. He arrived in Basra on 18 June 2003, but spent until 26 June 2003 in a tented camp in the desert in Kuwait for the purpose of acclimatisation. He then moved to his base. By August 2003, shade temperatures reached in excess of 50° centigrade, the maximum that available thermometers could measure. On 9 August 2003, the deceased reported sick, complaining that he could not stand the heat. Over the next few days, he carried out various duties off the base. On 13 August at about 7 p.m. he was found lying face down outside the door of a room in which two colleagues were. He was short of breath and in a confused and erratic state. An ambulance was called and he was taken to the accident and emergency department of the medical facilities, but he sustained a cardiac arrest and was pronounced dead at 8.10 p.m. Death was caused by hyperthermia. Article 2 ECHR covers the taking of life by state agents. But it also imposes a positive obligation to protect life. Thus where there is a known risk to life which the State can take steps to avoid or to minimise, such steps should be taken. The soldier does not lose all protection simply because he is in hostile territory carrying out dangerous operations. Thus, for example, to send a soldier out on patrol or, indeed, into battle with defective equipment could constitute a breach of Article 2. It was common ground that the circumstances of Private Smith's death gave rise to concerns that there may have been a failure by the army to provide an adequate system to protect his life. Thus the approach to the inquest, namely that in deciding how the deceased met his death, the coroner should consider in what circumstances death resulted, should prevail. Claimant: Ms Sarah Moore; Interested Party: Ms Jessica Simor Top of Page
R (on the application of Gentle (FC) and another (FC)) (Appellants) v The Prime Minister and others (Respondents) ECHR, article 2, Right to life, soldier on active service, public inquiry, obtaining of legal advice.	[2008] UKHL 20 House of Lords
Two young soldiers lost their lives while serving in the British army in Iraq. Fusilier Gentle was serving with the 1st Battalion The Royal Highland Fusiliers when he was killed by a roadside bomb on 28 June 2004. Trooper David Clarke was serving with the Queen's Royal Lancers when he was killed by "friendly fire" on 25 March 2003. The deaths were fully investigated at duly-constituted inquests conducted in the United Kingdom, and there are no outstanding questions about when, where and in what circumstances they respectively died. The appellants contended that by virtue of sections 1 and 2 of the Human Rights Act 1998 and article 2 of the European Convention on Human Rights they had an enforceable legal right in domestic law to require Her Majesty's Government to establish an independent public enquiry into all the circumstances surrounding the invasion of Iraq by British forces in 2003, including in particular the steps taken by the Government to obtain timely legal advice on the legality of the invasion. The thrust of the appellants' case was that Article 2 of the Convention imposes a duty on member states to protect life. This duty extends to the lives of soldiers. Armed conflict exposes soldiers to the risk of death. Therefore a state should take timely steps to obtain reliable legal advice before committing its troops to armed conflict. Had the UK done this before invading Iraq in March 2003, it would arguably not have invaded. Had it not invaded, Fusilier Gentle and Trooper Clarke would not have been killed. The bedrock of the appellants' argument was article 2 of the Convention. the House considered this in R(Middleton) v West Somerset Coroner [2004] UKHL 10, [2004] 2 AC 182, para 2: "The European Court of Human Rights has repeatedly interpreted article 2 of the European Convention as imposing on member states substantive obligations not to take life without justification and also to establish a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life...." Article2 not only prohibits the unjustified taking of life by the state and its agents, but also requires a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life. Lord Bingham took the view that the deaths did not occur "within the jurisdiction" of article 1 ECHR as, subject to limited exceptions and specific extensions, the application of the Convention is territorial. However, in his view, nothing in the Strasbourg case-law on article 2 appears to contemplate an enquiry of the type sought. Lord Hoffman held that it was inconceivable that article 2, in creating duties which the state undertook to accord to its citizens in domestic law, was intending that it should incorporate by reference its duties under the United Nations Charter or any other duties which operated exclusively at the level of international law, governing relations between states. Secondly, article 2 is concerned with dangers to life and the question of whether a war is authorised by a Security Council resolution has nothing to do with the extent to which participation is dangerous. The Government did not have a duty under article 2 to use, in Mr Singh's phrase, "due diligence" in the investigation of whether the invasion would, as a matter of international law, be lawful or not. Lord Hope held that those who serve in the armed forces do this in the knowledge that they may be called upon to risk their lives in the defence of their country or its legitimate interests at home or overseas. In Engel v The Netherlands (No 1) (1976) 1 EHRR 647, para 54, the European Court said that, when interpreting and applying the rules of the Convention, the court must bear in mind the particular characteristics of military life and its effects on the situation of individual members of the armed forces. The issue of legality of the invasion belonged to the area of relations between states. Article 2 of the Charter of the United Nations declares that the organisation and its members shall act in accordance with the principles that it sets out. There is no legally binding obligation to establish an independent public enquiry into the process by which a decision might have been made to commit the state's armed forces to war. Coram: Lord Bingham of Cornhill, Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood and Lord Mance Appellant: Rabinder Singh QC, Michael Fordham QC, Alex Bailin (Public Interest Lawyers); Respondent: Jonathan Sumption QC, Philip Sales QC, Jemima Stratford, (Instructed by the Treasury Solicitors) Top of Page
"R" -v- HM Attorney-General Employment/Contract	PC, 17 Mar [2003]
An ex member of the UK Special Forces Bravo 2Zero team maintained that he had been required by the Ministry of Defence to sign a confidentiality contract in order to remain in the SAS regiment. He alleged that as he signed it under military orders it had been obtained by duress or undue influence. HELD: he was bound, after he left the service, by the confidentiality agreement signed. [Lord Scott dissenting, said the relationship between R and his senior officers and the circumstances in which the contract came to be signed produced a classic case in which undue influence should be presumed. There was no evidence to rebut that presumption. Fairness required that if the MOD wished to impose contractual obligations on soldiers by which they would be bound after leaving the service, it must at least make available to them independent legal advice]. Coram: Lords Bingham, Steyn, Hoffmann, Millett and Scott Top of Page
RB (Algeria) (FC) and another (Appellants); OO (Jordan) (Original Respondent and Cross-appellant) v Secretary of State for the Home Department (Respondent) Deportation/human rights/article s 3, 5, and 6/Security threat to UK	[2009] UKHL 10 18 February 2009
Appeals by three men whom the Secretary of State for the Home Department wished to deport on the ground that each was a danger to the UK's national security. Each argued deportation would infringe his rights under the ECHR. RB and U are Algerian nationals who contended that deportation to Algeria would article 3 by exposing them to a real risk of torture or inhuman or degrading treatment. Othman (Abu Quatada), a Jordanian, contended deportation breached his article 3, article 5 and article 6 Convention rights. Held (unanimously): On 10 August 2005 a Memorandum of Understanding (‘MoU’) was signed between the United Kingdom and Jordan. This contained the a number of assurances, including the right to receive a fair and public hearing without undue delay by a competent, independent and impartial tribunal established by law. In RB's case a note signed by Mohammed Amara, an Algerian High Court Judge gave a number of assurances and guarantees, broadly in line with article 6 requirements. In the case of U, SIAC had found that there were credible grounds for concluding that U had held a senior position in a Mujahedin training camp in Afghanistan, that he had had direct links with Usama Bin Laden and other senior Al Qa'eda figures and that he had been involved in supporting terrorist attacks. On the 2 August 2006 assurances were given by the Algerian Ministry of Justice in identical terms to those given in the case of RB. Returning to Othman, he alleged his trials in Algeria proceeded on the basis of confessions made by others that had incriminated Mr Othman. The prohibition on receiving evidence obtained by torture is not primarily because such evidence is unreliable or because the reception of the evidence will make the trial unfair. Rather it is because "the state must stand firm against the conduct that has produced the evidence". His deportation would not mean any subsequent trial in Jordan would be fundamentally unfair. Coram: Lord Phillips of Worth Matravers, Lord Hoffmann, Lord Hope of Craighead, Lord Brown of Eaton-under-Heywood, Lord Mance A full list of counsel and interveners will be found at the start of the judgment Top of Page
Charles Peter Timothy Radclyffe, Ministry of Defence -and- Vicarious Liability of MoD/Army Officer/off-duty/Negligence of officer	[2009] EWCA Civ 635 Court of Appeal
There may be circumstances in which an army officer retains authority and responsibility for soldiers under his command even when he and they are off duty. The Ministry were vicariously liable for the negligence of Captain Jones, which resulted in Mr Radclyffe suffering injury when he jumped 65 feet from a road bridge into a reservoir in Germany on 9th August 2003. The first instance judge decided that Mr Radclyffe was 40% responsible for his accident and injury. The Ministry of Defence appeal against the judge's decision saying that Mr Radclyffe was the voluntary author of his own misfortune; that Captain Jones had no causative influence on the accident; and that they were not vicariously responsible for Captain Jones' actions at the relevant time because he, Mr Radclyffe and the soldiers were then off duty. HELD: Dismissing the appeal. It was fair, just and reasonable to ascribe to the more senior officer a duty to take reasonable care to guard his subordinates against the foreseeable risk of injury, if they jumped from the bridge into the reservoir. He was in breach of that duty. Coram: President, Queen's Bench Division, Lord Justice Hooper, Lord Justice Sullivan Appellant: Miss Tania Griffiths QC (instructed by Treasury Solicitors) Respondent: Nicholas Braslavsky QC & Michael Rawlinson QC (instructed by Messrs Irwin Mitchell) Top of Page
Roche-v-United Kingdom Human Rights/ECtHR/Art 6.1/Art 8/Art. 10	19 Oct 2005,(Application no. 32555/96) Grand Chamber
The applicant alleged that he suffered from the effects of his exposure to toxic chemicals during tests carried out on him in Porton Down barracks in 1962 and 1963. He mainly complained, under Articles 8 and 10, that he had inadequate access to information about the tests and, under Article 6 § 1, that he did not have adequate access to court as a result of the certificate issued by the Secretary of State under section 10 of the Crown Proceedings Act 1947. He also invoked Article 1 of Protocol No. 1 together with Articles 13 and 14 in this latter respect. HELD: 1. (9:8) no violation of Article 6 § 1; 2. (16:1) no violation of Article 1 of Protocol No. 1; 3. (unanimously) no violation of Article 14 in conjunction with Article 6 and Article 1 of Protocol No. 1; 4. (16:1) no violation of Article 13; 5. (unanimously) that there has been a violation of Article 8; 6. (unanimously) no violation of Article 10 of the Convention; Dissenting opinion given by of Mr Loucaides, joined by MM. Rozakis and Zupancic, Mrs Strážnická, Mr Casadevall, Mrs Thomassen, MM. Maruste and Traja Top of Page
Saggar-v-Ministryof Defence Race Discrimination/Extra-Territorial Jurisdiciton	[2005] EWCA Civ 413, Court of Appeal
Army Medical Officer of Indian ethnic origin, served in the RAMC as a military consultant anaesthetist. From May 1982 to September 1998, he worked in Great Britain, save for some work done in Bosnia, the Gulf, Germany and Northern Ireland. In September 1998, he was posted to Akrotiri, Cyprus, where he worked until retirement in January 2002. In April 2000, he brought a complaint alleging racial discrimination by the commanding officer at Akrotiri. The Race Relations Act covers discrimination by an employer against a person employed by him "at an establishment in Great Britain". An employment tribunal dismissed the claim on grounds that it had no jurisdiction because the applicant was working wholly outside Great Britain. At the relevant time, s.8(1) of the Act provided that "employment is to be regarded as being at an establishment in Great Britain unless the employee does his work wholly or mainly outside Great Britain." Since July 2003, s.8 has provided that "employment is to be regarded as being at an establishment in Great Britain if the employee -- (a) does his work wholly or partly in Great Britain; or (b) does his work wholly outside Great Britain and subsection (1) applies." That subsection brings within the Act's jurisdiction cases where "(a) the employer has a place of business at an establishment in Great Britain; (b) the work is for the purposes of the business carried on at that establishment; and (c) the employee is ordinarily resident in Great Britain -- (i) at the time when he applies for or is offered the employment, or (ii) at any time during the course of the employment." HELD Appeal allowed. The ET never fully investigated the relevant facts about the applicant's whole employment. They took too narrow an approach in law to the relevant period of time for deciding whether the applicant 'wholly or mainly' did his work in Great Britain within s.8(1). The tribunal erred in law in only taking account of the period during which the alleged discrimination occurred ie from September 1998 to December 1999 at Akrotiri. Case remitted to a different tribunal to determine the issue of jurisdiction in accordance with this judgment. Coram Mummery, Tuckey, and Clarke, LJJ Applicant: Robin Allen QC, Paul Epstein; Respondent: Thomas Linden Top of Page
Scallan, R-v- Court-Martial/Powers on Election/Subordinate Commander	EWCA Crim 2040 CMAC
Appellant appeared before a subordinate commander, on a charge of leaving a duty contrary to section 29(A)(a) of the Air Force Act 1955, for which she was fined £1,000. She argued that Section 85, AFA 1955 dictates that, upon election for trial by court martial, an accused will not be awarded any punishment which could not have been awarded by the commanding officer or appropriate superior authority who would have dealt summarily with the preliminary charge if the election had not been made. Therefore, as the preliminary charge would have been dealt with by the subordinate commander, the punishment was in excess of that which could have been awarded by him. Held: The the full powers of the commanding officer are available to any subsequent court martial. NB, appeal suceeded on other grounds. Coram: Kennedy LJ, Crane and Hedley JJ Appellant: Ms F Edington Respondent: Mr W Wood Acknowledgment: RAF Legal Services. Top of Page
Schofield v United Kingdom ECHR/art 6/fair trial/court composition	ECtHR, 10 January 2006 Application 8681/02
Convicted by GCM of two offences of rape of a junior female army officer (a Lieutenant). Sentenced to nine years’ imprisonment and dismissed with disgrace from the service. The GCM comprised four officers (not below the rank of Captain), a permanent president and a judge advocate. The Reviewing Authority did not alter the GCM’s finding or sentence. The applicant argued that trial by court-martial comprised exclusively of officers violated the impartiality guarantee of Article 6 of the Convention where the complainant was an officer, the accused was a soldier from the ranks and the issues in the case turned on the credibility of the evidence of those individuals. Held: Following Hastie and Spear and Cooper, the fact that courts-martial were at the time necessarily and exclusively composed of officers, even when the complainant was an officer, does not of itself give rise to a violation of Article 6 § 1: the Court’s concern is rather the sufficiency of the safeguards in place. The application was inadmissible. [See also: Schofield, below]. Top of Page
Schofield, R -v- Sentencing	17 May 00, GCM Gütersloh (Unreported)
LCpl found guilty of two counts of rape of a female officer in her room in the Officers' Mess. He wore a balaclava to hide his identity. Made threats to her life. Pleaded not guilty. Argued that no fair trial where complainant is an officer and all members of the Board are officers. Convicted. Sentenced to 9 years imprisonment and dismissal from the service. Coram: J.A. Chapple Top of Page
Secretary of State for Defence -v- Pensions Ombudsman and another Employment/Pensions/Widow	[2003] All ER (D) 270 Court of Appeal
The widow of an RAF sergeant claimed pensions under the Armed Forces Pension Scheme (AFPS) and the War Pensions Scheme (WPS). Her husband was killed in a mountaineering accident whilst taking part in a privately planned and funded training expedition in preparation for an approved joint forces expedition to Greenland. Each pension scheme required that the death or injury of the serviceman was attributable to service. The widow's claim under the WPS was initially refused but succeeded on appeal. Her claim under the AFPS was, however, refused on the ground that her husband's death was not attributable to service. The Ombudsman upheld her claim. The SoS appealed. Held: Dismissing the appeal, The DSS was the only official decision maker on the issue whether an injury or death was attributable to service. The natural and ordinary meaning of the language used in QR 3090(1) was that the DSS would determine whether death was attributable to service and that it would neither be necessary nor permissible for the panel to repeat the exercise. The decision of the DSS necessarily preceded an AFPS application to the panel and was meant to be binding on it. Top of Page
Sirdar v The Army Board Employment/Discrimination	26 Oct 99, European Court of Justice
Female Army cook wished to join Royal Marines. She was accepted, until they found out she was a woman. Held: 1. Decisions taken by Member States in regard to access to employment, vocational training and working conditions in the armed forces for the purpose of ensuring combat effectiveness do not fall altogether outside the scope of Community law. 2. The exclusion of women from service in special combat units such as the Royal Marines may be justified under Article 2(2) of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, by reason of the nature of the activities in question and the context in which they are carried out. ECJ decision. Top of Page
Skuse, R-v- Fair Trial/Uniformed Judge	CMAC, [2002] EWCA Crim 991
The focus of the appeal related to the independence of the judge advocate at a naval court martial, as he is a barrister who is also a serving officer. The court reviewed Strasbourg and domestic case law. HELD: The Judge Advocate of the Fleet (“JAF”) is appointed by the Queen on the recommendation of the Lord Chancellor, to whom he is responsible. He is entirely independent of the executive. His office and functions are recognised in section 73 of the Naval Discipline Act 1957. His prime responsibility is to review all courts martial, save for those in which the accused pleads guilty, so as to be able to advise the Admiralty Board. Judge advocates while in office are responsible solely to the JAF for the performance of their professional duties in courts martial. They receive no appraisal reports nor additional or separate pay for their duties in such office. Nor is their pay or promotion affected by their performance or status as judge advocates. In the present case, there is the special factor that the judge advocate was due for retirement within the year. As in the case of PPCMs, for whom that appointment is their last posting, this is an answer to this concern and a guarantee of independence in this case. The JAF is an entirely independent figure who reviews every contested court martial and for these purposes reads the record of the proceedings and can advise the Admiralty Board to quash a conviction. This is a safeguard which does not exist in the case of a civilian criminal trial. (cf the ECtHRs view of review, in Morris). Appeal dismissed. Reported by BAILII, notified by NIMJ Comment: this case should no longer be follwed. It is effectively overruled by the decision in Dundon Top of Page
Smith, R-v- Sentencing	CMAC, 18 Jan 2000, Case Nº 1999/04008 S2
Accused found guilty of indecent assault and sentenced to be dismissed and to undergo detention for 6 months. Since leaving the army he had found a good job which included a pension. On appeal he argued that the sentence of dismissal carried with it a severe financial penalty, particularly regarding pension rights. Considering Love and Cooney, it was HELD that dismissal was the correct sentence as the court-martial was in the best position to exercise discretion in these matters. The case involved sexual misconduct which affected other service personnel. Coram: Bingham LJ, Tucker & Hallett JJ. Top of Page
Smith, Catherine, The Queen on the Application of - and - Secretary of State for Defence ECHR, jurisdiction, article 2, Right to life, soldier on active service.	[2009] EWCA Civ 441 - Case No: C1/2008/1049 See also First instance
On appeal from the High Court (see also below on this page). The Court considered the wording of article 2 of the Convention, from which the UK had not derogated, and Section 6(1) of the Human Rights Act, which provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. It is common ground that the British army is a public authority within the meaning of section 6. The Court also considered Bankovic and Al Skeini. The Court held that British soldiers on active service are subject to the jurisdiction of the UK within the meaning of article 1 of the Convention. The Court went on to consider the position under article 2 whether the inquest into Private Smith's death must conform with article 2 of the Convention in a particular way. The Court concluded that the procedural question, which is whether the inquest into Private Smith's death must satisfy the requirements of article 2 of the Convention as set out in Middleton, should be answered in the affirmative. They were not persuaded that so to hold does any more than apply the principles adopted by the ECtHR. It does not therefore infringe the principle in Al Skeini at [106]. The precise limits of the inquest will of course be a matter for the coroner but the coroner would be expected to consider the questions whether there were any systemic failures in the army which led to Private Smith's death and, indeed, whether there was a real and immediate risk of his dying from heatstroke and, if so whether all reasonable steps were taken to prevent it. Appellant: Pushpinder Saini QC and Sarah Moore (instructed by HM Treasury Solicitor); Respondent: Ben Emmerson QC and Jessica Simor (instructed by Hodge Jones & Allen) Intervener: The Hon Michael Beloff QC and Raza Husain (instructed by the Legal Director of the Equality and Human Rights Commission) Top of Page
Spear and another; R v Boyd, R-v- Human Rights/Fair Trial/PPCM	C-MAC, 15 Jan 2001 Law Report Summary See also: [2001] Crim.L.R. 485
A permanent president of a court-martial did not lack those characteristics of independence and impartiality required by art 6 of the ECHR. LAWS LJ, HELD that the defendants relied on a ruling by Assistant Judge Advocate General Pearson in R v McKendry on 6 March 2000 to the effect that the appointment of a PPCM did not give rise to an impartial and independent tribunal. The assistant judge advocate general had been at pains to insist that his ruling was limited to that particular case, but its reasoning plainly applied at least to all district courts-martial presided over by a PPCM. Their Lordships had considered Starrs v Ruxton 2000 SLT 42 . Their lordships had nevertheless come to the clear conclusion that the position of PPCMs was categorically different and also fell to be sharply distinguished from Findlay v United Kingdom (1997) 24 EHRR 221 and Incal v Turkey (41/1997/825/1031, 9 June 1998). PPCMs effectively operated outside the ordinary chain of military command, living their professional lives largely in isolation from their service colleagues; although there was no guarantee against removal there was in fact no record of a permanent president of a court-martial ever having been removed from that position; the appointment was the officer's last posting, offering no prospect of promotion or preferment thereafter; and the term of appointment was for no less than four years. The measures and practices relating to PPCMs offered objective guarantees or safeguards which in the court-martial setting were well sufficient for the purposes of art 6. [See above, HL decision]. Top of Page
Stoodley, ex parte , R-v-DCM sitting at RAF Lynham, Judicial Review	[1998] EWHC Admin 56. QB DC Smith Bernal Case N° CO/4597/97
(1) Abuse of Process. Applications for adjournment - considerations for granting. While it is not possible or desirable to identify hard and fast rules as to when adjournments should or should not be granted, the guiding principle is that Courts should fully examine the circumstances leading to applications for delay, the reasons for those applications and the consequences both to the prosecution and the defence. Last minute adjournments deprive other defendants of the opportunity of speedy trials when recollections are fresh. (2) Availability of alternative remedy: Crown submitted that where an application for adjournment had been refused the case should go on and that if the defendant was convicted he could then appeal on the basis that he had been denied a fair trial and that if the point was a good one his conviction would be set aside. Held: The C-MAC court has a supervisory jurisdiction to interfere with the judgment of the judge advocate and there are no policy reasons which have the effect of removing that jurisdiction. Top of Page
Stow, R-v- Human Rights/Human RIghts/Independence/Prosecution	[2005] EWCA Crim 1157 CMAC
Challenge to the independence of the Navy Prosecuting Authority, who was reported upon by the chain of command. Held: While the Prosecuting Authority may not enjoy such a pivotal role as the Judge Advocate, his independence and impartiality is of great importance to a fair trial. It seemed to the court that the court-martial of the appellant cannot, in these circumstances, be held to have observed the appellant's rights under Article 6(1). If his trial was not fair, then his conviction could not be regarded as safe. A further appeal point raising concern over the absence of a PPCM was considered unnecessary to address in the light of the court's conclusion about the Prosecuting Authority. Coram: Keene LJ, Treacy and Wilkie JJ For Appellant: M Tregilgas-Davey Esq; For Respondent: Lieutenant Commander Towler. Top of Page
Tadic (Dusko) The Prosecutor-v- ICTY/War Crimes/International or Internal armed conflict	Case No. IT-94-1-T; See also IT-94-1-A
Tadic was arrested in February 1994 in Germany, where he was then living, on suspicion of having committed offences at the Omarska camp in the former Yugoslavia in June 1992, including torture and aiding and abetting the commission of genocide, which constitute crimes under German law. He was charged with individual counts of persecution, inhuman treatment, cruel treatment, rape, wilful killing, murder, torture, wilfully causing great suffering or serious injury to body and health, and inhumane acts alleged to have been committed at the Omarska, Keraterm and Trnopolje camps and at other locations. HELD: For the purpose of the applicability of Article 2 of the Statute: a) a conflict is international in nature where a State exercises overall control over subordinate armed forces or militias or paramilitary units engaged in armed conflict with another State. The control required for those powers to be considered de facto State organs goes beyond the mere financing and equipping and involves also participation in the planning and supervision of military operations. However, it is not required that specific orders or instructions relating to single military actions be issued; b) victims are "protected persons" if they do not owe allegiance to and receive diplomatic protection from the party in whose hands they find themselves. 4. The "common purpose" doctrine requires an actus reus amounting to a plurality of persons, the existence of a common plan, design or purpose which amounts to or involves the commission of a crime provided for in the Statute, and the participation of the accused in the common design. The mens rea requires the intention to participate in and further the common criminal activity or purpose, while responsibility for crimes outside the common plan arises only if the commission of such a crime by a group member was foreseeable and the accused willingly took that risk. 5. An act carried out for the purely personal motives of the perpetrator can constitute a crime against humanity. 6. Except for "persecutions" under Article 5(h) of the Statute, a discriminatory intent is not required for crimes against humanity. Prosecution: Mr. Grant Niemann Ms. Brenda Hollis Mr. Alan Tieger, Mr. William Fenrick, Mr. Michael Keegan; Defendant: Mr. Michaïl Wladimiroff, Mr. Steven Kay, Mr. Milan Vujin, Mr. Alphons Orie, Ms. Sylvia de Bertodano, Mr. Nikola Kostic. Top of Page
Tait , R v Sentencing	7 Oct 99, DCM Gütersloh (Unreported)
Official Secrets Act 1989, section 8. Corporal trained in the handling and safety of classified documents. Over a period of years hoarded a large quantity of classified documents and materials in his accommodation, having removed them from several security areas where he had worked. Poor or inadequate supervision by superiors. Pleaded guilty. Full admissions of responsibility. Sentence: reduced to the rank of Lance Corporal. Coram: J.A. Bayliss Top of Page
Tariq -v- The Home Office *New* Employment/Human Rights/Article 6/Disclosure	[2009] UKEAT 0168_09_1610 Employment Appeal Tribunal 16 Oct 2009
The Claimant, a Pakistani Muslim, had been employed by the Respondent as an immigration officer. His brother and cousin were arrested during an investigation into a suspected plot to mount a terrorist plot. The brother was subsequently released without charge, but his cousin was convicted of conspiracy to murder, having already pleaded guilty to two counts of conspiracy to cause explosions and to commit a public nuisance. There was no information to suggest that Mr Tariq had been involved in the plot, but there were concerns that he could be vulnerable to attempts to make him abuse his position as an immigration officer. His security clearance was withdrawn. He unsuccessfully lodged an internal appeal against that decision. He complained that the withdrawal of his security clearance amounted to race and religious discrimination, both direct and indirect. Much of the evidence could not be disclosed to Mr Tariq and his legal team, and would have to be given in private at a hearing from which members of the public should be excluded. He also argued that exclusion from closed proceedings was incompatible with the ECHR. HELD: The Tribunal did not err in law by hearing closed evidence before hearing the open evidence. There must be a recognition of the need to strike the right balance between competing considerations; It was not been suggested by the Appellant that the power of a tribunal or an employment judge to order that all or part of the proceedings be conducted in private is incompatible with Art. 6, or that it was inappropriate for such an order to be made in Mr Tariq's case; Even in control order cases or cases in which someone is in detention in which national security is at stake, Art 6 still requires the claimant to be provided with the allegations against him in sufficient detail to enable him to give effective instructions to the special advocate so that those allegations can be challenged effectively; Provided that this can be done, sensitive information can be withheld, and a system which permits the non-disclosure of such information save to special advocates who have received security clearance is not of itself incompatible with Art 6; In deciding whether to order further materials to be disclosed to the claimant to make the hearing of the claim Art. 6 compliant, the Employment Tribunal should first be informed what the parties' open cases are, and then be informed in closed session what the respondent's case is; The Special Advocate is appointed by the Attorney-General for a particular case, but he or she is just one of a large number of counsel from the independent bar on the panel maintained by the Attorney-General following open competition. The allegation of lack of independence was more a matter of form than a matter of substance. Coram: Keith, J Appellant: Robin Allen QC, Mr Paul Troop and Ms Judith Farbey (Special Advocate); Respondent: James Eadie QC and Ms Kate Grange Top of Page
Thapa-v-Ministry of Defence Employment/Discrimination/Gurkhas	CRE website, 6 Dec 02
Former Lance Corporal Hari Thapa challenged the Army in 1998 alleging that he was unfairly paid only around 60% of what an identical British soldier was paid. He accepted an out-of-court settlement in his claim of racial discrimination against the Ministry of Defence. The Commission for Racial Equality, which supported his case, said that the settlement was an amount equivalent to all Mr Thapa's back pay for his 15 years' service in the Brigade of Gurkhas. The Army had argued the Race Relations Act 1976 did not apply to Mr Thapa because he worked outside Great Britain for about 80% of his 15 years' service. The MoD had argued that Gurkhas' pensions are adequate because most of them retire to Nepal, where the cost of living is a fraction of that in the UK. Mr Thapa was born in Hampshire, where his Gurkha father was stationed, and therefore holds a British passport. But because of his Nepalese background, he was recruited to the armed forces under a 1947 tripartite agreement between the UK, India and Nepal, which links Gurkhas' pay and pensions to those in the Indian army. Unreported case. Summary of CRE website article by Aspals Top of Page
Thompson-v- United Kingdom See also admissibility Fair Trial/Summary Dealing	ECtHR, Application N° 00036256/97 15 June 2004
Pre-AFDA 2000 case. Summary Dealing by CO. Article 6 was applicable as the summary proceedings involved the determination of the applicant’s sentence following a plea of guilty to a "criminal" charge. The Court did not consider that any choice by him of a summary trial as opposed to electing trial by court-martial would have constituted a valid waiver of his rights under Article 6 §§ 1 and 3 of the Convention. 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. The Court noted, the applicant was directly subordinate, and in close structural proximity, to his Commanding Officer, a factor which undoubtedly would have affected the free and unambiguous nature of any choice between a summary trial and a court-martial.The fact that the option was presented to him at all meant that his Commanding Officer considered him to be guilty as charged and, further, that he warranted more than a minor punishment. Secondly, the court-martial option would have been presented to the applicant at a time when the court-martial system, found in the Findlay case to violate the independence and impartiality guarantees of Article 6 § 1, remained in place. Thirdly, the applicant was a layman not in a position to evaluate his legal position or, consequently, the options to be pursued by him. In addition, legal representation was not allowed at the summary hearing when the opportunity to elect was afforded to an accused which absence, in turn, would have rendered it difficult for a lawyer to comprehensively advise an accused during the following twenty-four hours when the election would have become definitive. Accordingly, the summary proceedings conducted by the CO were not compatible with Article 6 § 1. They presented even clearer structural independence and impartiality problems than those established in Findlay. A person charged with a criminal offence who does not wish to defend himself in person must be able to have recourse to legal assistance of his own choosing. The Court held that the exclusion of legal representation from the applicant’s summary trial constituted a violation of Article 6 § 3(c) Top of Page
Thompson-v- UK Fair Trial/Summary Dealing	ECtHR, App N° 36256/97
Court ruled admissible applicant's complaints about ·his pre-trial detention between 27 January and 7 March 1997 (concerning the independence of his Commanding Officer and an alleged delay between the applicant's arrest and his being brought before that Officer, together with the availability of an enforceable right to compensation in these respects); and his summary trial (concerning the independence and impartiality of the Commanding Officer and the availability of legal representation. The Court did not consider that the domestic remedies could constitute effective remedies for complaints which essentially raise the compliance of the domestic summary trial provisions with Article 6 of the Convention. The Court considered these complaints raised serious issues under Article 6 §§ 1 and 3 of the Convention which required determination on the merits. It followed that these matters could not be dismissed as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. [Reported by Mr John McKenzie] Comment: This case is concerned with the pre-AFA 96 and AFDA 2000 procedures. Latest decision at this link Aspals Top of Page
Torrance, R-v- Sentencing	18 Nov 98, GCM Höhne, (Unreported )
Charged with attempted rape of a German civilian female and assaulting her thereby occasioning actual bodily harm. Accused did not give evidence. JA (J Bayliss) gave direction under Section 35 Criminal Justice & Public Order Act 1994 concerning the ability of the court to draw such inferences from his refusal to testify as they deemed proper. Sentenced to 6 years 5 months imprisonment, reduced to the ranks, dismissed with disgrace from HM forces. Top of Page
Walker, Ex parte; R-v-Ministry of Defence, Employment/Injury/Combat	[2000] UKHL 22; [2000] 2 All ER 917 , (6th April, 2000) House of Lords
A soldier, seriously injured as a result of a single round fired by a Serbian tank into the accommodation block he was based in while serving in Bosnia as part of the UN Protection Force in the former Yugoslavia, was rightly refused compensation by the MoD under a scheme it operated providing discretionary ex gratia compensation for members of the Armed Forces who were the victims of crimes of violence while serving abroad. The scheme was designed to compensate for injuries resulting from action akin to domestic crime and not from warlike or military conduct while peacekeeping in a foreign battlefield. It made no difference that there existed a scheme whereby the UN would have reimbursed the MoD. The availability of an indemnity from the UN for payments made to UN personnel injured by warring factions did not make irrational a general policy of the ministry not to make such payments. It is not for the courts to consider whether the scheme with its exclusion is a good scheme or a bad scheme, unless it can be said that the exclusion is irrational or so unreasonable that no reasonable minister could have adopted it. Majority decision of CA upheld. (Lord Hobhouse of Woodborough dissenting: "By accepted norms, the attack on the civilian non-combatant U.N. peacekeepers was criminal. Further it had been declared to be such by the United Nations Convention on the Safety of United Nations and Associated Personnel, of 9 December 1994. (See now the United Nations Personnel Act 1997.) He was injured as the result of a criminal act of violence. He was not injured by an "enemy". He was not injured as a result of a "war" operation or some military activity by a "warring" party... U.N. peacekeepers... are not one of the warring factions nor engaged in any warlike operation.") Top of Page
Walsh, R-v- s.66/Disgraceful conduct of an indecent kind/test	CMAC unreported, 4 July 1980
No amount of mental gymnastics can enable one to interpret the word "disgraceful" as being subject to a subjective test in law. The correct test is an objective one. Coram: Lord Lane, CJ, Comyn and McNeil JJ Top of Page
Webster , R -v- Trial/Theft/Ownership/s.5 Theft Act 68/Sentence/Financial Factors	[2006] EWCA Crim 2894 CMAC, 10th November 2006
The appellant, a sergeant, advertised a medal belonging to an officer on eBay and sold it for £605. Found guilty of one offence of theft. Sentenced to be reduced to the ranks. He unsuccessfully petitioned the reviewing authority. VJAG Hunter advised the Reviewing Authority that the matter raised in the petition might better be determined by the Court of Appeal. At the close of the prosecution case there had been a submission of no case to answer on the ground that the medal was owned by the officer and the charge wrongly averred that it was owned by the Secretary of State. The trial Judge Advocate rejected the submission, holding, first, that the medal was to be regarded as belonging to the medals office and therefore the Secretary of State for the purposes of section 5(1) of the Theft Act; and, secondly, that on the officer's evidence that he had given the medal to the appellant to return to the medals office, section 5(3) would be engaged. The issue on appeal was whether there was a misdirection rendering the conviction unsafe. The factual dispute related to the question of dishonesty. There was no disputed issue of fact relevant to the matter with which the CMAC had been dealing. In those circumstances it was open to the judge advocate to direct the jury that as a matter of law the Secretary of State retained a proprietary interest in the medal and that the medal, therefore, belonged to the Secretary of State as set out in the charge. Appeal against conviction dismissed. Appeal against sentence on the basis that the conviction would cause him to lose pension rights alone in excess of £200,000. The court martial may not have given sufficient weight to an important mitigating factor, namely that of financial consequences, because it did not have before it the full information now available to the CMAC. The sentence imposed was excessive and it would have been sufficient and entirely appropriate to order that the appellant be reduced to corporal. Sentence varied accordingly. Coram: Richards LJ, Teare J and Sir Michael Wright Appellant: M Scott Esq; Respondent: D J Richards Esq Top of Page
Whitworth, R v Sentence/Principles	[2003] EWCA Crim 2236 CMAC, 14th July 2003
Tried by GCM on three charges of indecent assault against the same female complainant. Acquitted of two charges and convicted of third. Sentence to be dismissed from service. Applications for leave to appeal against conviction and sentence refused by the Single Judge and application for leave to appeal conviction also refused by the Full Court which, however,granted leave to appeal sentence.The court considered the cases of Love, Cooney and Allam, and McEnhill.They substituted the sentence of a reduction to the rank of sergeant for the penalty that was imposed. Coram: Lord Justice Rose, Mr Justice McCombe, Mrs Justice Cox Appellant: D Barlow, Esq; Respondent: P Rogers, Esq. Top of Page
Whyman and Garbutt, R-v- Identification/Judge's Direction	[2006] EWCA Crim 3656 CMAC
Convicted of affrayand sentenced to 112 days' detention (Whyman) and six months' detention (Garbutt). Petitions to reviewing authority were refused. Appeal against conviction by leave of the single judge. Issue of identification. Inconsistencies in evidence. HELD: summing-up defective because it failed to draw to the attention of the court some weaknesses of significance which were potentially of importance. They were not simply minor discrepancies. The weaknesses are in the case of Smalley the varying evidence as to the duration of the assault, the inconsistency as to the clothing worn by his attacker, and the inability to recollect that his attacker had a noticeable northern accent. In the case of Chase, there was his initial uncertainty as to the reliability of his identification evidence and there were some cross-over points to which the court referred in the course of the judgment. Coram: Sir Igor Judge, Langstaff, J and Sir Paul Kennedy Appellant: Mr G Blades; Respondent: Mr R Milne. Top of Page
Wignall, Ex Parte Phillip George; R -v-General Courts-Martial (Warminster Barracks) Judicial Review	[1997] EWHC Admin 690
Application for leave to apply for judicial review to challenge conviction and sentence of GCM. Attempted to argue that High Court enjoys supervisory jurisdiction over Courts-Martial. There are instances where that has been the case, but not in order to review convictions by Courts-Martial. Until very recently the anomalous situation was that those convicted by a Court-Martial had a right to appeal to the Courts-Martial Appeal Court only against conviction. Happily the law has since changed and that is no longer the situation. Judge by no means satisfied that this court has the same kind of supervisory jurisdiction over Court-Martial courts as it traditionally has over Magistrates' Courts. It is not open to an Applicant such as this to run the same point in judicial review proceedings which could and should have been run before the Courts-Martial Appeal Court. Coram: Tucker, J Top of Page
Williams; Saunby; Ashby; Schofield; Marsh; Webb; Leese; Dodds; Clarkson; English, R-v- Fair Trial/Court-Martial	Courts-Martial Appeal Court: Laws LJ, Turner and McCombe JJ: 30 July 2001, Law Reports
An unsuccessful 'root and branch' challenge to the independence and impartiality of the court martial system, in challenging the right of a military disciplinary tribunal to try civil criminal charges. The CMAC held that the procedure and process of courts-martial did not inherently violate an accused person's right to be tried by an "independent and impartial tribunal" under article 6 of the ECHR as set out in Schedule 1 to the Human Rights Act 1998. However the CMAC did grant a Certificate on a point of law of public importance which is as follows 'Is a trial by court martial in the UK of a civilian criminal offence compatible with Art.6 of the European Convention on Human Rights as now introduced into English law by the Human Rights Act 1998?' A petition to the House of Lords to grant leave to appeal has been granted. Reported by Gilbert Blades . [See above, HL decision] Top of Page
Williamson, R-v- Trial/Advice by JAG to Reviewing Authority/Rejected	[2005] EWCA Crim 3336 CMAC
Army Reviewing Authority declined to set aside the sentence imposed by the Court-Martial notwithstanding advice to the contrary effect from the Judge Advocate General. HELD: CMAC should give special weight to the views of the Army Reviewing Authority and of the Court-Martial itself when it comes to assessing the seriousness of offending in the context of service life. The Court-Martial did not err in principle in imposing a sentence of dismissal in relation to this offence of dishonesty, nor in considering the overall sentence, which included a period of 30 days detention, nor did the Court-Martial fail to consider the mitigation or to give sufficient consideration to the appellant's plea of guilty. Appeal dismissed. Coram: Dyson LJ, Tomlinson and Smith JJ Appellant: Miss Tremeling; Respondent: J Mason Esq. Top of Page
Wisely; R-v- Summary Appeal Court	Summary Appeal Court at Bulford, 18/19 October 2001 Deputy Judge Advocate HillL
The SAC upheld a submission by the appellant’s advocate Gilbert Blades that an order given by Staff Sergeant LINTON to Signaller Bobby Lee WISELY of 1st Mechanised Brigade HQ & Signal Squadron (215) on the 19th September 2001 at about 18.00 hours in the following terms namely "Parade outside the Guardroom at 20.00 hours in combat 95 and sober" was not an order pursuant to Section 34 of the Army Act 1955 which the appellant had wilfully or through neglect disobeyed. The finding by the Commanding Officer Major A.J.Botterill and the sentence of 7 days detention was quashed.The order by Staff Sergeant Linton had been given at a time when the appellant was under the influence of intoxicating liquor, and in civilian clothes, and there was no evidence that the court could be satisfied that the appellant would have been sober by 20.00 hours, and therefore could not be lawfully required to parade in uniform and sober. Reported by Gilbert Blades Esq, solicitor. Top of Page
Wittekind, R-v- Fair Trial/Sex Discrimination	RAF DCM at RAF Aldergrove; 14 Aug 2001
Charge of disobedience to standing orders which specified the offence as having a "member of the opposite sex" in single sex accommodation after 2359hrs. After RAFPA notified that a Pre-Trial Hearing required on discriminatory nature of the charge following Lustig- Prean -v- UK, the charge was dropped. The standing order is of a standard format which has not been changed to reflect the fact that gays now serve; the order is worded to expressly approve homosexual and lesbian contact after 2359hrs, and expressly forbids heterosexual contact. It therefore appears to offend Art 8 and Art 14. I believe this form of wording is still routinely used, and although this decision to discontinue carries no precedent it is a useful reminder to service personnel and practitioners. Reported by Lewis Cherry Top of Page
Woodward, R-v- Sentencing	19 Nov 98, Guildford Cr Ct, (News item)
Drunken Army training instructor Sergeant at a training camp followed a female teenage recruit when she went to go to bed made her perform fellatio before raping her. He denied the offence. Convicted - jailed for seven years. Top of Page
Wright (Ex parte ); R v RAF GCM and Anr, Judicial Review	QBD, [1999] EWHC Admin 465
No abuse of process for the same officer of the RAF directorate of legal service who had advised a commanding officer on whether to refer charges to a higher authority or to dimiss them, later to make the decision in the same case whether to prosecute. Queen's Bench Divisional Court dismissed an application by Wing Commander Timothy Wright for judicial review of the decision of Judge Advocate Hunter made at a General Court-Martial sitting at Uxbridge, on November 3 and 5, 1998 not to stay proceedings against him on grounds of abuse of process. The dual role of officers of the directorate as advisers to commanding officers and thereafter, following referral by higher authority, as prosecuting officers, did not offend against the principles of natural justice. The giving of advice to the commanding officer regarding the allegations was not a manipulation of the procedure so as to constitute an abuse of process. Top of Page
Yamashita War Crimes/Command responsibility	Law Reports of Trials of War Criminals 8th October-7th December, 1945
Responsibility of a Military Commander for offences committed by his troops. The sources and nature of the authority to create military commissions to conduct War Crime Trials, Non-applicability in War Crime Trials of the United States Articles of War and of the provisions of the Geneva Convention relating to Judicial Proceedings. Extent of review permissible to the Supreme Court over War Crime Trials. Tomoyuki Yamashita, formerly Commanding General of the Fourteenth Army Group of the Imperial Japanese Army in the Philippine Islands, was charged with unlawfully disregarding and failing to discharge his duty as commander to control the acts of members of his command by permitting them to commit war crimes. The essence of the case for the Prosecution was that the accused knew or must have known of, and permitted, the widespread crimes committed in the Philippines by troops under his command (which included murder, plunder, devastation, rape, lack of provision for prisoners of war and shooting of guerrillas without trial), and/or that he did not take the steps required of him by international law to find out the state of discipline maintained by his men and the conditions prevailing in the prisoner-of-war and civilian internee camps under his command. Top of Page
Yanikoglu -v- Turkey Human Rights/Fair Trial	Application no. 46284/99 14 October 2004
The applicant, a civilian, was arrested and placed in police custody by police officers from the Ankara Security Directorate on suspicion of his involvement in the activities of an illegal organisation. On 13 April 1993 the Ankara State Security Court, composed of three judges including a military judge, convicted the applicant as charged. Both the applicant and the public prosecutor appealed. On 27 November 1997 the Ankara State Security Court sentenced the applicant to twelve years and six months’ imprisonment. HELD: there had been a breach of inter alia §6.1, as the bench which tried him included a regular army officer and member of the Military Legal Service and his fear as to the State Security Court’s lack of independence and impartiality could be regarded as objectively justified. Top of Page

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