The applicant complained that the members of a court-martial were appointed by the Convening Officer, who was closely linked to the prosecuting authorities. The members of the court-martial were subordinate in rank to the Convening Officer who had the power in prescribed circumstances to dissolve the court-martial either before or during the trial. The Strasbourg Court noted that all members of the court-martial fell within the chain of command of the Convening Officer with the result that the applicant’s doubts about the Tribunal’s independence and impartiality could be objectively justified.
Held: The procedures are unfair. The convening officer has too much influence over the court. For a Tribunal to be impartial and independent ‘it must also be impartial for an objective viewpoint, that is it must offer sufficient guarantees to exclude any legitimate doubt in this respect.’ There were fundamental flaws in the court-martial system and ‘Nor could the defects referred to above be corrected by any subsequent review of proceedings. Since the applicant’s hearing was concerned with serious charges classified as ‘criminal’ under both domestic and Convention law, he was entitled to a first instance tribunal which fully met with the requirements of Article 6 (1)’.
Times 27-Feb-1997, 110/1995/616/706, 22107/93, (1997) 24 EHRR 221, [1997] ECHR 8, [2011] ECHR 1668
Worldlii, Bailii
Army Act 1955, European Convention on Human Rights Art 6.1
Human Rights
Cited by:
Cited – Regina v Williams; Regina v Saunby; Regina v Ashby; Regina v Schofield; Regina v Marsh, Regina v Webb; Regina v Leese; Regina v Dodds; Regina v Clarkson; Regina v English CMAC 30-Jul-2001
The appellants variously claimed their convictions should be set aside because the court which had heard their cases was not independent and impartial. They alleged in particular that questions of military discipline and morale would affect the . .
Approved – Regina v Boyd, Hastie, Spear (Courts Martial Appeal Court), Regina v Saunby, Clarkson, English, Williams, Dodds, and others HL 18-Jul-2002
Corts Martial System Complant with Human Rights
The applicants were each convicted by courts martial of offences under civil law. They claimed that the courts martial were not independent tribunals because of the position of the president of the court, and that it was wrong to try a serviceman by . .
Cited – PD, Regina (on the Application of) v West Midlands and North West Mental Health Review Tribunal Admn 22-Oct-2003
The claimant was detained as a mental patient. He complained that a consultant employed by the NHS Trust which detained him, also sat on the panel of the tribunal which heard the review of his detention.
Held: Such proceedings did engage the . .
Cited – Cooper v The United Kingdom ECHR 16-Dec-2003
Hudoc Judgment (Merits and just satisfaction)
The claimant had been dismissed from the RAF after a court martial. He complained that the tribunal was not independent, and that his trial was unfair.
Cited – Grieves v The United Kingdom ECHR 16-Dec-2003
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 ; Costs and expenses partial award – Convention proceedings
The claimant had been dismissed from the Royal Navy after a court martial. He . .
Cited – Hammond, Regina (on the Application of) v Secretary of State for the Home Department Admn 25-Nov-2004
The defendant had heard that the sentencing judge would set his sentence tarriff without an oral hearing, and would then give his decision in open court. He sought judicial review.
Held: Review was granted. The availability of a right of . .
Cited – Greenfield, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Feb-2005
The appellant had been charged with and disciplined for a prison offence. He was refused legal assistance at his hearing, and it was accepted that the proceedings involved the determination of a criminal charge within the meaning of article 6 of the . .
Cited – Hammond, Regina (on the Application of) v Secretary of State for the Home Department HL 1-Dec-2005
The claimants had been convicted of murder, but their tariffs had not yet been set when the 2003 Act came into effect. They said that the procedure under which their sentence tarriffs were set were not compliant with their human rights in that the . .
Cited – McGonnell v The United Kingdom ECHR 8-Feb-2000
The applicant owned land in the parish of St Martin’s in Guernsey. He made a number of applications for planning permission for residential use, but they were all rejected. In about 1986 he moved into a converted packing shed on his land. In 1988 a . .
Cited – Haase, Regina (on the Application of) v Independent Adjudicator and Another CA 14-Oct-2008
The appellant complained that as a prisoner he was subjected to disciplinary proceedings for refusing to co-operate with drugs tests. He said that he had not been informed that there would be a penalty if he did not comply. He now complained that . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice, Human Rights, Armed Forces
Updated: 18 December 2021; Ref: scu.165486
