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 court martial an offence committed in the UK or abroad.
Held: The law laid down no rules to settle where a serviceman should be tried, but those involving service property or personnel would normally be dealt with by a courts martial, and where no such interests were involved, by a civil court. This was not unfair. The Presidents of the courts martial were senior officers reaching the end of their career. They had permanent positions, and sought no further advancement. They were independent. The lesser duties of lower court officers meant that the court could properly rely upon them to fulfil their oaths, and they were impartial. The system had been substantially improved, and was now compliant.
Lord Bingham of Cornhill observed: ‘Officers will appreciate, better than anyone, that to convict and punish those not shown to be guilty is not to promote the interests of good discipline and high morale but to sow the seeds of disaffection and perhaps even mutiny. In the absence of any evidence at all to support it, I could not accept the suggestion that any modern officer would, despite the oath he has taken, exercise his judgment otherwise than independently and impartially or be thought by any reasonable and informed observer to be at risk of doing so.’
Lord Bingham of Cornhill, Lord Steyn, Lord Hutton, Lord Scott of Foscote and Lord Rodger of Earlsferry
Times 19-Jul-2002, Gazette 19-Sep-2002, [2002] UKHL 31, [2003] 1 AC 734, [2002] 3 All ER 1074, [2002] ACD 97, [2002] HRLR 40, [2002] 3 WLR 437, [2002] HRLR 43, [2003] 1 Cr App R 1
House of Lords, Bailii
Army Act 1955 70, Air Force Act 1955 70, European Convention on Human Rights, Courts-Martial (Army) Rules 1997 (SI 1997/169)
England and Wales
Citing:
Cited – Morris v The United Kingdom ECHR 26-Feb-2002
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1 with regard to general structure of court martial system; No violation of Art. 6-1 with regard to specific complaints; No violation of Art. . .
Approved – Findlay v The United Kingdom ECHR 25-Feb-1997
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 . .
Appeal from – Regina v John Spear, Philip Hastie and David Morton Boyd CMAC 15-Jan-2001
The fact that the President of a Court Martial was appointed within the same authority as was prosecuting, did not necessarily mean that the tribunal was not impartial. Such officers were typically appointed at the end of their careers, and they . .
Cited 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 . .
Appealed to – Regina v John Spear, Philip Hastie and David Morton Boyd CMAC 15-Jan-2001
The fact that the President of a Court Martial was appointed within the same authority as was prosecuting, did not necessarily mean that the tribunal was not impartial. Such officers were typically appointed at the end of their careers, and they . .
Cited – Regina v Dundon CMAC 18-Mar-2004
The defendant had been convicted under a system of trial later confirmed not to be compliant with the need for a fair trial.
Held: The judge advocate in this trial had been a serving officer. Unless the positive obligation to show an . .
Cited – Kay and Another v London Borough of Lambeth and others; Leeds City Council v Price and others and others HL 8-Mar-2006
In each case the local authority sought to recover possession of its own land. In the Lambeth case, they asserted this right as against an overstaying former tenant, and in the Leeds case as against gypsies. In each case the occupiers said that the . .
Cited – Purdy, Regina (on the Application of) v Director of Public Prosecutions and others CA 19-Feb-2009
The claimant suffered a debilitating terminal disease. She anticipated going to commit suicide at a clinic in Switzerland, and wanted first a clear policy so that her husband who might accompany her would know whether he might be prosecuted under . .
Cited – Appleyard, Regina v CACD 17-Oct-2005
Resumed hearing of appeal against conviction at a court martial – suggestions that directions given by the judge advocate on duress were defective rejected. Now consideration on words used to jury as to attempts to reach a unanimous verdict.
Crime, Armed Forces, Human Rights
Leading Case
Updated: 01 November 2021; Ref: scu.174397
