The court was asked whether proceedings in a military court against soldiers for disciplinary offences involved criminal charges within the meaning of Article 6(1): ‘In this connection, 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. 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. The very nature of the offence is a factor of greater import. When a serviceman finds himself accused of an act or omission allegedly contravening a legal rule governing the operation of the armed forces, the State may in principle employ against him disciplinary law rather than criminal law. In this respect, the court expresses its agreement with the Government. However, supervision by the court does not stop there. Such supervision would generally prove to be illusory if it did not also take into consideration the degree of severity of the penalty that the person concerned risks incurring. In a society subscribing to the rule of law, there belong to the criminal sphere deprivations of liberty liable to be imposed as a punishment, except those which by their nature, duration or manner of execution cannot be appreciably detrimental. The seriousness of what is at stake, the traditions of the Contracting States and the importance attached by the Convention to respect for the physical liberty of the person all require that this should be so. It is on the basis of these criteria that the court will ascertain whether some or all of the applicants were the subject of a ‘criminal charge’ within the meaning of Article 6(1).’
The Court established three criteria for determining whether proceedings are ‘criminal’ within the meaning of the Convention, namely (a) the domestic classification, (b) the nature of the offence, and (c) the severity of the potential penalty which the defendant risks incurring.
Article 5 is concerned with the deprivation of liberty and not with mere restrictions on freedom of movement. Article 6 applied to a Board of Visitors’ adjudication within a prison.
A distinction based on the rank of soldiers was a distinction based on status within Article 14. ‘A disciplinary penalty or measure which on analysis would unquestionably be deemed a deprivation of liberty were it to be applied to a civilian may not possess this characteristic when imposed upon a serviceman.’
The list in sub-paragraphs (a) to (f) of the cases where deprivations of liberty are permitted is exhaustive and is to be narrowly interpreted.
5101/71, 5354/72, 5102/71, 5370/72, [1976] ECHR 3, 5100/71, (1976) 1 EHRR 647
Worldlii, Bailii
European Convention on Human Rights 5(1) 14
Human Rights
Cited by:
Cited – Regina v H (On appeal from the Court of Appeal (Criminal Division)) HL 30-Jan-2003
The defendant had been found unfit to stand trial, at a later hearing under the section, the jury had found that he had committed the act complained of. He was discharged but ordered to be placed on the sex offenders register. He appealed on the . .
Cited – Regina (Mudie and Another) v Dover Magistrates’ Court and Another CA 4-Feb-2003
The applicants wished to challenge the confiscation of their goods by the Commissioners of Customs and Excise on their return to Dover. They appealed the refusal of Legal Aid.
Held: The Convention guaranteed the right to legal assistance for . .
Cited – Gillan and Quinton, Regina (on the Application of) v Commissioner of Police for the Metropolis and Another CA 29-Jul-2004
The appellants had challenged the lawfulness of being stopped and searched by police. The officers relied on an authorisation made under the 2000 Act. They had been on their way to attending an arms fair, intending to demonstrate.
Held: The . .
Cited – Campbell and Fell v The United Kingdom ECHR 28-Jun-1984
Campbell and others had been involved in conduct within the prison leading to charges against them of mutiny and of striking an officer with a broom handle. The nature of the conduct in question was plainly susceptible of giving rise to criminal . .
Cited – Regina v Carroll and Al-Hasan and Secretary of State for Home Department Admn 16-Feb-2001
The claimants challenged the instruction that they must squat whilst undergoing a strip search in prison. A dog search had given cause to supect the presence of explosives in the wing, and the officers understood that such explosives might be hidden . .
Cited – Regina v Parole Board ex parte Smith, Regina v Parole Board ex parte West (Conjoined Appeals) HL 27-Jan-2005
Each defendant challenged the way he had been treated on revocation of his parole licence, saying he should have been given the opportunity to make oral representations.
Held: The prisoners’ appeals were allowed.
Lord Bingham stated: . .
Cited – Regina (McCann and Others) v Manchester Crown Court CA 9-Mar-2001
Proceedings applying for an anti-social behaviour order, were properly civil proceedings, with civil standards of evidence, and the Human Rights Act provisions relating to criminal proceedings, were not applicable either. The section included acts . .
Cited – Clingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL 17-Oct-2002
The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . .
Cited – Tangney v The Governor of HMP Elmley and Another CA 29-Jul-2005
The claimant was a serving a life sentence. During prison disciplinary proceedings he was refused legal and other assistance, and an outside tribunal on the basis that since any finding would not lead to any loss of remission or extra time, his . .
Cited – Francis v Secretary of State for Work and Pensions CA 10-Nov-2005
The applicant had sought payment of a ‘Sure Start’ maternity grant. She had obtained a residence order in respect of her sister’s baby daughter who had been taken into care. She said that a payment would have been made to the partner of a mother or . .
Cited – MB, Re, Secretary of State for the Home Department v MB Admn 12-Apr-2006
The applicant challenged the terms of a non-derogating control order. It was anticipated that unless prevented, he would fight against UK forces in Iraq.
Held: The section allowed the Secretary of State to impose any necessary conditions, but . .
Cited – Gentle, Regina (on the Application of) and Another v The Prime Minister and Another HL 9-Apr-2008
The appellants were mothers of two servicemen who had died whilst on active service in Iraq. They appealed refusal to grant a public inquiry. There had already been coroners inquests. They said that Article 2 had been infringed.
Held: The . .
Cited – RJM, Regina (on the Application of) v Secretary of State for Work and Pensions HL 22-Oct-2008
The 1987 Regulations provided additional benefits for disabled persons, but excluded from benefit those who had nowhere to sleep. The claimant said this was irrational. He had been receiving the disability premium to his benefits, but this was . .
Cited – Austin and Another v Commissioner of Police of the Metropolis HL 28-Jan-2009
Movement retsriction was not Liberty Deprivation
The claimants had been present during a demonstration policed by the respondent. They appealed against dismissal of their claims for false imprisonment having been prevented from leaving Oxford Circus for over seven hours. The claimants appealed . .
Cited – Secretary of State for Defence v Smith, Regina (on the Application of) CA 18-May-2009
The soldier had died of heatstroke after exercises in Iraq. The Minister appealed against a finding that the circumstances of his death required an investigation compliant with Article 2 human rights, saying that he was not subject to such . .
See Also – Engel And Others v The Netherlands (Article 50) ECHR 23-Nov-1976
ECHR Judgment (Just Satisfaction) – Non-pecuniary damage – financial award; Non-pecuniary damage – finding of violation sufficient. . .
Cited – Secretary of State for The Home Department v AP SC 16-Jun-2010
The claimant challenged the terms of the control order made against him under the 2005 Act saying that it was too restrictive. Though his family was in London, the control order confined him to a house many miles away for 16 hours a day.
Held: . .
Cited – Smith, Regina (on The Application of) v Secretary of State for Defence and Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) SC 30-Jun-2010
The deceased soldier died of heat exhaustion whilst on active service in Iraq. It was said that he was owed a duty under human rights laws, and that any coroner’s inquest should be a fuller one to satisfy the state’s duty under Article 2.
Cited – Gale and Another v Serious Organised Crime Agency SC 26-Oct-2011
Civil recovery orders had been made against the applicant. He had been accused and acquitted of drug trafficking allegations in Europe, but the judge had been persuaded that he had no proper explanation for the accumulation of his wealth, and had . .
Cited – Kaplan v United Kingdom ECHR 14-Dec-1978
(Admissibility) The Secretary of State had, after preliminary procedures, served notices on an insurance company disallowing it from writing any new business, because its managing director the applicant, had been found not to be a fit and proper . .
Cited – Mubarak v Mubarak CA 2001
A judgment summons, issued was issued by the wife to enforce a lump sum order made against her husband in their divorce proceedings. The judge had performed his statutory duty which included having to satisfy himself under s. 25 of the 1973 Act of . .
Cited – Hallam, Regina (on The Application of) v Secretary of State for Justice SC 30-Jan-2019
These appeals concern the statutory provisions governing the eligibility for compensation of persons convicted of a criminal offence where their conviction is subsequently quashed (or they are pardoned) because of the impact of fresh evidence. It . .
Lists of cited by and citing cases may be incomplete.
Human Rights, Prisons, Armed Forces
Leading Case
Updated: 31 December 2021; Ref: scu.164879