(back to preceding text)

    53. Lord Thomas put at the forefront of his submissions a general argument that, because trial by court-martial infringed article 6 of the Convention, section 70 of the Acts should be declared to be incompatible with that article. Counsel for the respondents argued that this submission was totally misconceived since section 70 was a section which created an offence rather than one which conferred jurisdiction on courts-martial. In their judgment in R v Saunby, para 32 the Appeal Court accepted that argument and I would do so too. But even supposing that Lord Thomas could have founded such an argument on the reference in subsection (3) to "a person convicted by court-martial", the argument would necessarily have failed since, as the decision in Morris v United Kingdom 34 EHRR 1253 shows, it is impossible to say that in their very nature all trials by court-martial involve an infringement of the accused's article 6 rights.

    54. Since trial by court-martial does not necessarily involve an infringement of the accused's rights under article 6, the decision as to whether the court is to be regarded as an independent and impartial tribunal depends on the safeguards which are in place. It follows that the decision in these appeals depends on whether the safeguards of the independence and impartiality of the members of the courts-martial in these cases can be regarded as satisfactory.

    55. In Findlay v United Kingdom 24 EHRR 221, 244 - 245, para 73 the European Court recalled that

"in order to establish whether a tribunal can be considered as 'independent', regard must be had inter alia to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence.

"As to the question of 'impartiality', there are two aspects to this requirement. First, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect."

In Porter v Magill [2002] 2 WLR 37, 84A-B, para 103 Lord Hope of Craighead, with whom the other members of the House agreed, having surveyed the European Court, United Kingdom and Commonwealth case law on this point, concluded:

"The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased."

    56. Lord Thomas did not suggest that the members of the courts-martial in these cases had been subjectively biased. He argued, however, that the fair-minded and informed observer would conclude that the safeguards were inadequate to guarantee the independence and impartiality of the members of the courts-martial, especially having regard to the lack of security of tenure for permanent presidents and the ad hoc appointments of the other officers. Given their position as serving officers in the armed forces, the fair-minded observer would see it as possible that they would give undue weight to the need to maintain service morale and discipline and that, as officers, they would be unable fairly to judge cases involving lower ranks, especially if, say, convicting an officer or acquitting a private meant disbelieving an officer or non-commissioned officer. Courts-martial could not, therefore, be regarded as objectively impartial in terms of article 6.

    57. A submission of this kind requires one, as a starting-point, to consider what is meant by the requirement that a tribunal should be independent and impartial. As the European Court noted in Morris v United Kingdom (1992) 34 EHRR 1253, 1274, para 58, the concepts of independence and objective impartiality are closely linked. In the present cases, in substance, the court-martial must be guarded from the risk of influence by the prosecution and guarded from the risk of influence by the relevant Service authorities, especially superior officers who might wish to secure some particular result, supposedly in the interests of the morale or discipline of the Service or of some particular unit. As a result of the abolition of the role of the convening officer by the 1996 Act, no issue was raised in these cases as to the independence of the members of the tribunal from the prosecution. On the other hand, article 6 does not require that the members of the tribunal should not share the values of the military community to which they belong any more than it requires that the judge or members of the jury in a civil court should be divorced from the values of the wider community of which they form part. What matters is that, while sharing the values of the Service community, the members of the court-martial should put aside any prejudices which they may have and act - and be seen to act - independently and impartially in deciding the issues in the case before them.

    58. Lord Thomas dealt first with the position of permanent president. In R v Spear, in the trial involving Spear and Hastie, the president of the court-martial was a permanent president, Lieutenant Colonel Stone. In the trial of Boyd the president of the court-martial was again a permanent president, Wing Commander Chambers. In the trial of Saunby also the president was a permanent president, Lieutenant Colonel de Lisle. Another permanent president, Lieutenant Colonel Hall, sat in the trial of Clarkson and English. In challenging the role of the permanent presidents in these cases Lord Thomas had, of course, to take account of the judgment of the European Court on this point in Morris v United Kingdom 34 EHRR 1253, 1276-1277, paras 68-69:

"The court notes that the permanent president in the applicant's case was appointed to his post in January 1997 and was due to remain in post for four years, eight months until his retirement in September 2001. He also worked outside the chain of command. The Court considers that, in these respects, his position was similar to that of the military members of the Dutch Supreme Military Court in the above-mentioned Engel [v The Netherlands (No 1) 1 EHRR 647] case. In that case, in declaring the military court 'independen[t] and impartial', the court drew attention to the fact that the appointment of the military members was usually the last of their careers and that they were not, in their functions as judges, under the command of any higher authority or under a duty to account for their acts to the service establishment.

"The court recalls that, although irremovability of judges during their terms of office must in general be considered as a corollary of their independence, the absence of a formal recognition of such irremovability in the law does not in itself imply a lack of independence, provided that it is recognised in fact and that other necessary guarantees are present. It notes also that, as highlighted by the Courts Martial Appeal Court in the above-mentioned cases of R v Spear and R v Boyd, although there is no 'written guarantee' against premature removal of permanent presidents, there is no record of a permanent president ever having been removed from office.

"60. The applicant argues that the independence of the permanent president at the applicant's court martial could have been reinforced by formal security of tenure and by embodiment of his appointment in a legal instrument of some kind. However, the court finds that the presence of the permanent president did not call into question the independence of the court-martial. Rather, his term of office and de facto security of tenure, the fact that he had no apparent concerns as to future army promotion and advancement and was no longer subject to army reports, and his relative separation from the army command structure, meant that he was a significant guarantee of independence on an otherwise ad hoc tribunal."

    59. About two years before this judgment of the European Court, apparently giving a clean bill of Convention health to permanent presidents, in R v McKendry (unreported) 6 March 2000 Judge Advocate Pearson had held that the president of that particular district court-martial should stand down because he could not be regarded as independent and impartial for purposes of article 6(1). Although the judge advocate purported to limit his ruling to the particular case, the result of it was that the use of permanent presidents was forthwith abandoned. Officers who had been serving as permanent presidents found themselves without a role. It appears that, pending the outcome of these appeals, the use of permanent presidents has not been resumed.

    60. In R v Spear [2001] QB 804, 814, paras 22 and 23 the Appeal Court summarised the information given to them about the two permanent presidents, Lieutenant Colonel Stone and Wing Commander Chambers, in this way:

"Lieutenant Colonel Stone was appointed PPCM in January 1998. His appointment was specified to run until February 2002. It was always plain that this was to be his last posting; but in fact he was deployed in a staff job within First UK Armoured Division after and because of the abolition of the PPCM regime in May 2000 following R v McKendry, since at that date he still had some time to serve before retirement. He had no prospects of further promotion. He had no intention of seeking employment after his retirement within the Ministry of Defence as a retired officer. No reports were made upon him in his office as PPCM; indeed there have in the Army been no reports upon any PPCM since April 1997 when the 1996 Act came into force. Lieutenant Colonel Stone worked outside any regimental or other chain of command, from his married quarters home, and eschewed the officers' mess because 'to do otherwise could have compromised my position as a PPCM'.

23 There is a statement from Group Captain Trace, who is deputy director within the Personnel Management Agency responsible for the career management of all officers of the General Duties and Operations Support Branches up to and including the rank of Wing Commander. He has perused the personal file of Wing Commander Chambers, who sat as PPCM in Boyd's case. Wing Commander Chambers was appointed PPCM in June 1998 initially for some two years, but he accepted a two-year extension. This was his last posting. He had no prospects of promotion. He worked from home, and his only contacts of any substance with the Service were for purposes of administration and welfare. No reports were made upon him in respect of his decision-making functions as PPCM. We should add that when Boyd's applications were renewed to this court, his solicitor Mr Blades noted on the renewal form: 'Since this case was heard the president has been suspended. The Royal Air Force do not appear to believe that the president is independent.' There was also a suggestion that Wing Commander Chambers had at some stage been disciplined or reprimanded. This is not supported by any material of any substance which we have seen. There is no reference to any such matter in the documents emanating from the Royal Air Force. It was not pressed with any force by Mr Blades, and is not within the purview of Boyd's leave to appeal granted by us. There may be scope for some confusion since it appears from Group Captain Trace's letter that Wing Commander Chambers held office as PPCM 'until the post was suspended on 16 February 2000' (our emphasis)."

In R v Saunby no particular points were made about Lieutenant Colonel de Lisle or about Lieutenant Colonel Hall.

    61. So far as Lieutenant Colonel Stone is concerned, Lord Thomas accepted that the position was as outlined by the Appeal Court. In particular he accepted that, since 1997, in the Army there had been no reports on permanent presidents. That being so, in the appeals of Spear and Hastie Lord Thomas was not able to distinguish Morris v United Kingdom 34 EHRR 1253. Since he did not argue that, on its facts, this aspect of the decision in Morris had been wrong, Lord Thomas's submissions on behalf of these appellants were really of a more general nature, dealing with the perceived weaknesses in the role of any officer as a member of a court-martial.

    62. In the case of the appellant Boyd, however, Lord Thomas argued that the position was not so straightforward as the account given by the Appeal Court would suggest. Unlike the Army permanent presidents, in particular the permanent president in Morris v United Kingdom, Royal Air Force permanent presidents, such as Wing Commander Chambers, remained subject to reports. Mr Havers accepted that, for some reason that he could not explain, the Air Force had indeed continued the practice of preparing reports on officers who were serving as permanent presidents. In my view that practice is undesirable and, as the Army experience shows, unnecessary. It would be better if it were discontinued. Lord Thomas went on to submit that, contrary to the conclusion of the Appeal Court, an examination of the reports on Wing Commander Chambers written in August 1999 and August 2000 suggested that the practice of reporting had indeed jeopardised his independence. He pointed out that in one report the permanent president's function was said to be one on which "the Service's disciplinary ethos is based" and comments were then made as to the enthusiasm which Wing Commander Chambers brought to his role - for example, it was said that he "relishes the challenge each court brings". In 1999 the Air Secretary noted that he was well suited to continue to his retirement in 2000 "when consideration could again be given as to whether the post should be held by a recently retired officer…" In fact, Wing Commander Chambers' retirement date was extended for two years from December 2000 and so that particular issue did not arise, but it might be thought, said Lord Thomas, that an assessment of his performance as a permanent president would have been relevant to the decision as to whether or not his period of service should be extended. Thus the reporting process, with its possible consequences for his future, could have affected his independence and impartiality.

    63. As Mr Havers pointed out, however, while the reports make various comments on the way that Wing Commander Chambers tackled his role as a permanent president, these are better seen as referring to the administrative aspects of the job, such as checking the trial facilities and briefing the other participants. Crucially, there was not the slightest indication that the reports bore on his actual decisions when sitting as president of a court. On the contrary the reports recognise that that role is one in which the permanent president is "isolated and unsupervised" and which requires independence which the Air Secretary "honour[s] and respect[s]", there being only an administrative and welfare linkage. The reporting officer recognises the limitation on his role since he is not "allowed any direct insight into the way [Wing Commander Chambers] has discharged his duties. Indeed a key ingredient is the ability to work without supervision." In these circumstances I readily conclude that neither the fact that Wing Commander Chambers was subject to reports of this nature, nor the actual reports themselves that were made on him, give the slightest reason for considering that his independence or impartiality as a member of the appellant Boyd's court-martial was compromised. On the contrary, all involved in making these reports were well aware of the need not to intrude upon the decisions reached by him when sitting as president. Even had anyone wished to intrude, the oath of secrecy taken by the members of courts-martial would have made it impossible to investigate those decisions.

    64. That being so, there is nothing in the particular circumstances of the cases of Spear and Hastie or of Boyd which would be a reason to reach a different result from the European Court in Morris v United Kingdom on the issue of the independence and impartiality of the officers acting as president of their courts-martial. I respectfully agree with and adopt the reasoning of the European Court on this point. I would accordingly reject Lord Thomas's argument that these appellants' rights under article 6(1) were infringed because the presidents of their courts-martial were permanent presidents.

    65. When he turned to the position of the other officers on the courts-martial, Lord Thomas was able to claim support for his argument from the relevant aspect of the decision of the European Court in Morris v United Kingdom 34 EHRR 1253, 1277-1278, paras 70-72:

"70.  In contrast to the permanent president, 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. Although the court does not consider that the ad hoc nature of their appointment was sufficient in itself to render the make-up of the court-martial incompatible with the independence requirements of article 6(1), it made the need for the presence of safeguards against outside pressures all the more important in this case.

"71.  The court recognises that certain safeguards were in place in the present case. For example, the presence of the legally qualified, civilian judge advocate in his enhanced role under the 1996 Act was an important guarantee, just as the presence of two civilian judges in the Dutch Supreme Military court was found to be in the above-mentioned Engel case. This was particularly so since the applicant's guilt, upon which the judge advocate would have had no vote, was not at issue before the court-martial. As indicated at paragraph 69 above, the presence of the permanent president provided another guarantee. The court notes also the protection offered by the statutory and other rules about eligibility for selection to a court martial and the oath taken by its members.

"72.  However, the court considers that the presence of these safeguards was insufficient to exclude the risk of outside pressure being brought to bear on the two relatively junior serving officers who sat on the applicant's court martial. In particular, it notes that those officers had no legal training, that they remained subject to army discipline and reports, and that there was no statutory or other bar to their being made subject to external army influence when sitting on the case. This is a matter of particular concern in a case such as the present where the offence charged directly involves a breach of military discipline. In this respect, the position of the military members of the court-martial cannot generally be compared with that of a member of a civilian jury who is not open to the risk of such pressures."

Lord Thomas submitted that the House should follow this part of the decision of the European Court in Morris and that, indeed, it would be unprecedented for a court not to do so where the decision of the European Court was so recent.

    66. In reaching its decisions the European Court always pays careful attention to the facts of the case as explained to it. In the jargon of the subject, its decisions are said to be "fact-sensitive". As can be seen from the passage in question, the decision in Morris is no exception. For whatever reason, however, the European Court was given rather less information than the House about the safeguards relating to the officers serving on courts-martial. And, like the European Court, the House must have regard to all the relevant factual information presented to it when deciding whether the safeguards of the independence and impartiality of the members of the courts-martial were adequate.

    67. It is true that, apart from any permanent president, the officers selected to serve on courts-martial are appointed only ad hoc. As the European Court points out, that is not in itself sufficient to make the court incompatible with the independence requirements of article 6(1). Indeed, in performing the role only occasionally, the members of a court-martial resemble jurors and should bring to the task the freshness of approach which is one of the benefits of the jury system. Of course, as individuals and as officers in the armed forces, those asked to sit on a court-martial may well have certain prejudices. Jurors too have prejudices and, as McIntyre J rightly pointed out in MacKay v The Queen (1980) 114 DLR (3d) 393, 420-421, quoted above at paragraph [52], the same can be said of those appointed to judicial office in civilian society. In the light of their experience of jury trial, however, courts in countries which operate with juries have concluded that the safeguards of the oath and the judge's directions are generally sufficient to ensure that jurors put aside their prejudices and reach a just verdict on the evidence. Indeed, as Lord Hope of Craighead observed in Montgomery v HM Advocate [2001] 2 WLR 779, 810D, the entire system of trial by jury is based on the assumption that the jury will follow the instructions which they receive from the trial judge and that they will return a true verdict according to the evidence. The European Court too has recognised that the jurors' oath, to faithfully try the case and to give a true verdict according to the evidence, and their obligation to have regard to the directions given by the presiding judge will generally be sufficient to safeguard their independence and impartiality. This is so even in cases where there is reason to believe that one or more members of the jury may actually be prejudiced against the accused. I refer to the well-known decisions in Pullar v United Kingdom (1996) 22 EHRR 391, 405, para 40 and Gregory v United Kingdom (1997) 25 EHRR 577, 593-595, paras 43-48.

    68. In the cases under appeal these particular safeguards were present. The oath taken by the members of the court required them to well and truly try the accused "according to the evidence" and to do justice according to the relevant 1955 Act "without partiality, favour or affection". In addition the judge advocate gave the other members of the court-martial directions of the same kind as would have been given to a jury if the case had been tried in a civil court. There is no reason to suppose that the members of the court-martial would be any less faithful to their oath or any less diligent in applying the directions given by the judge advocate than would the members of a jury. Indeed it is at the very least arguable that the officers on a court-martial, as members of the armed forces for whom trust and obedience to commands are particularly important, would be even more likely than civilian jurors to be true to their oath and to follow the directions given to them.

    69. In any event, the steps taken to ensure that the members of a court-martial act independently and impartially are, on one view, even more strict than with a jury. Although these additional steps were not fully explained to the European Court, they are in my view important and must be recorded at some length, even at the risk of repeating some of what has been said already about the procedure to be followed.

    70. In the first place, the officers to serve on any court-martial are always taken from another unit, the aim being to ensure that they do not know the people involved or anything about the case. When they have been nominated and the court-martial has been convened, the prospective members are sent briefing notes along with a list of the witnesses for the prosecution. The members are told to examine the list and to tell the administration office if any of the witnesses is known to them. They are told that, if they subsequently discover that they do know someone, they should discreetly advise the judge advocate.

    71. The briefing notes, which in certain respects reflect the provisions in Parts V and VI of the Rules, give an outline of the procedure that will be followed. Paragraph 2 emphasises the central role of the judge advocate by telling the members:

"The main thing to remember is that the judge advocate conducts the court-martial... He will therefore decide all questions of law, practice and procedure… He is a member of the court and his rulings and directions are binding on the other members of the court and, of course, the parties to the proceedings. Subject to the judge advocate's conduct of the trial, it will be the president's duty to ensure that the trial befits the traditions and standards of the Service; and, in particular, that officers and other persons under instruction do not interfere in the trial…"

    72. The notes go on to warn the members:

"3.  When you arrive at the courts-martial centre, do not speak to any unit personnel and certainly not to any unit officer who may be attending the trial in an official capacity or as a spectator. If you disregard this direction you may find yourself inadvertently talking to, for example, a witness or a lawyer involved in the case, which in turn might result in your being debarred from the trial or, indeed, the trial being prejudiced. If someone has spoken to you and you have any doubts about your position in this respect, you must tell the judge advocate privately before the trial commences. Any queries you may have should be addressed to the clerk of the court who will advise you.

"4.  Mention has been made above of the president's duties. Apart from that, the principal function of the president and the members is to decide, on the evidence, whether the accused is guilty or not guilty; and if guilty, then to decide, together with the judge advocate, the sentence to be imposed. The judge advocate will tell you all you need to know about the law and procedure in order to discharge those functions."

    73. Paragraph 6 tells the members:

"You are exempted from occupying public accommodation at the accused's unit. Justice must manifestly be seen to be done and this aim is assisted by your being seen to avoid local unit influences."

Paragraph 8 then advises them that:

"Save for resolving any queries members may have about court etiquette (e g, putting on and removal of head-dress, etc) under no circumstances must the president purport to carry out any form of briefing with other members of the court in the absence of the judge advocate."

This, again, is obviously designed to support the pivotal role of the judge advocate, while minimising any risk that the president may seek to influence the other members of the court.

    74. Paragraph 9 is to this effect:

"It is the C[ourt] A[dministration] O[fficer]'s duty to ensure that the officer members of the court are qualified to act as members, i e, that they have the requisite number of years' commissioned service and that they have not sat as members of a court-martial which has tried the accused before, or been involved in any investigation or inquiry into matters relating to the subject matter of the charge against the accused … However, if before the date of trial, you think you may be ineligible … or not qualified to sit, or know something about the accused which could prejudice your impartiality, or know someone who might be a witness in the case (you will receive prior notice from the CAO of persons who may be called as prosecution witnesses) you must not mention the matter to any other member but should tell the CAO who will, if necessary, arrange for your place on the court to be taken by someone else. If your concern about any of the above matters does not arise until you get to court, you must not talk about it to anyone else but should ask to see the judge advocate privately and tell him. Likewise, if during the trial you realise that you know a witness, you should tell the judge advocate privately without mentioning it to anyone else."