Background
1. The Naval Discipline Act 1957 (Remedial) Order
2004,[1] has been made
and laid before each House by the Secretary of State for Defence
in accordance with the 'urgent' procedure under section 10 of
and Schedule 2 to the Human Rights Act 1998. Its purpose is to
remove an incompatibility between the provisions of the Naval
Discipline Act 1957 governing the composition of naval courts
martial and the right under ECHR Article 6.1 to a fair hearing
before an independent and impartial tribunal in the determination
of criminal charges. The incompatibility was established by a
judgment of the European Court of Human Rights in Grieves v.
United Kingdom.[2]
2. The basis of the finding of incompatibility was
that naval courts martial instituted under the Naval Discipline
Act 1957 lacked the independence and impartiality required by
Article 6.1 of the European Convention on Human Rights (ECHR)
in the determination of criminal charges. Article 6.1 provides,
so far as relevant:
In the determination … of any criminal charge
against him, everyone is entitled to a fair … hearing …
by an independent and impartial tribunal …
3. The Court had held in earlier cases that a court
martial may be regarded as a tribunal determining criminal charges
against the accused, and that its independence falls to be assessed
by reference to (among other considerations) the manner in which
its members are appointed, the guarantees against outside pressures
on its members, and the extent to which it presents an objective
appearance of independence and impartiality.[3]
In the case of Grieves, the Court decided that the manner
of appointment of Judge Advocates in the Royal Navy, their status
as serving naval officers, and the reporting practices in operation
at the time of the case deprived naval Judge Advocates of the
necessary appearance of independence.
4. The Court concluded that there were objectively
justifiable doubts about the independence of naval Judge Advocates
for the following reasons.
a) Naval Judge Advocates were serving naval officers,
performing other duties besides acting as Judge Advocate at courts
martial, and as such were part of the normal command and disciplinary
structure of the Navy.
b) The Chief Naval Judge Advocate, a senior naval
officer appointed by the First Sea Lord and accountable to the
Second Sea Lord, took the lead in the appointment of naval Judge
Advocates, identifying suitable candidates, conferring with the
Judge Advocate of the Fleet (an experienced civilian lawyer who
at the relevant time was a circuit judge) and, with the agreement
of the Judge Advocate of the Fleet, 'ticketing' the successful
candidates to act as Judge Advocates.
c) At the time of the case, comments on the performance
of Judge Advocates could be passed to the Chief Naval Judge Advocate
and to the Judge Advocate's service reporting officer.
5. In Grieves, the Court held that the combination
of those factors undermined the objective independence of Royal
Navy courts martial. There was no objective justification for
the absence of a civilian involvement in naval courts martial,
having regard to the fact that all naval courts martial since
1986 have been held on land. The Court also considered that the
absence from the Royal Navy of a post of Permanent President of
Courts Martial with no hope of promotion and no effective fear
of removal deprived naval courts martial of a significant guarantee
of independence. In addition, the Court considered that the relative
lack of detail and clarity in the briefing notes sent to members
of naval courts martial as compared with those provided for Royal
Air Force courts martial, deprived the courts martial of another
effective safeguard for the independence of ordinary members of
naval courts martial from inappropriate outside influence.[4]
Accordingly the Court found that there had been a violation of
Article 6.1.
6. After the court martial in question, certain changes
had been made to the rules governing naval Judge Advocates in
the light of judgments of the European Court of Human Rights relating
to courts martial in the Army and the Royal Air Force. In particular,
Queen's Regulations, Royal Navy (QRRN) 3630 made the civilian
Judge Advocate of the Fleet solely responsible for acting as the
reporting officer in respect of naval officers' performance of
their duties as Judge Advocates.
7. However, the naval Judge Advocates (unlike those
in the Army and Royal Air Force) continued to be serving officers,
and the method of appointment remained the same.
8. Section 10 of the Human Rights Act 1998 provides,
so far as is relevant, that if—
… it appears to a Minister of the Crown …
that, having regard to a finding of the European Court of Human
Rights … a provision of legislation is incompatible with
an obligation of the United Kingdom arising from the Convention
… he may by order make such amendments to the legislation
as he considers necessary to remove the incompatibility.
Schedule 2 to the Act, goes on to set out the procedure
for making such remedial orders, either by an urgent or non-urgent
procedure.
9. The judgment of the Court meant that it was impossible
to conduct a naval court martial in accordance with the provisions
of the Naval Discipline Act 1957 without it violating Article
6.1 of the ECHR. The Minister therefore considered that it was
appropriate to amend the Naval Discipline Act 1957 to bring the
method of appointing naval Judge Advocates into line with the
requirement of independence contained in Article 6.1. The importance
and urgency of the situation was considered to justify the Minister
in making the amendment by means of a remedial order under section
10 of the Human Rights Act 1998, and in using the urgent procedure
under Schedule 2 to the Act whereby the Order can be made and
come into effect without prior parliamentary scrutiny, but ceases
to have effect if not approved by an affirmative resolution of
each House within 120 sitting days[5]
of being made.
The Order
10. The Order was made on 14 January 2004, laid before
each House on 15 January and came into effect on 16 January. It
amends the relevant provisions of the Naval Discipline Act 1957
and related legislation to allow only the Judge Advocate of the
Fleet (a civilian circuit judge) to appoint Judge Advocates in
naval matters.
1 S.I. 2004, No. 66. Back
2
App. No. 57067/00, judgment of 16 December 2003 (Grand Chamber). Back
3
See e.g. Findlay v. United Kingdom, Eur. Ct. HR, judgment
of 25 February 1997, RJD 1997-I, at para. 73; Incal v. Turkey,
Eur. Ct. HR, judgment of 9 June 1997, Reports 1998-IV,
para. 71. Back
4
See App. No. 57067/00, judgment of 16 December 2003 (Grand Chamber),
paras. 74-91. Back
5
On the meaning of this term, see below, para. 12. Back
