House of Lords - Regina v Boyd Etc.

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Session 2001- 02
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Judgments - Regina v Boyd Etc.

HOUSE OF LORDS

Lord Bingham of Cornhill Lord Steyn Lord Hutton Lord Scott of Foscote Lord Rodger of Earslferry

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE
Boyd, Hastie and Spear Saunby and Others (Appellants)
v.
    The Army Prosecuting Authority

    and

    The Royal Air Force Prosecuting Authority

    and

    The Treasury Solicitor

    (Respondents)

ON 18 JULY 2002

[2002] UKHL 31

LORD BINGHAM OF CORNHILL

My Lords,

    1. The conjoined appeals before the House fall into two groups. The first group comprises the three cases of Aircraftman Boyd and Messrs Spear and Hastie. These three appellants were all non-commissioned officers, Boyd in the Royal Air Force, Spear and Hastie in the army. All three were charged (Spear and Hastie jointly) with assault occasioning actual bodily harm to another member of their respective services. All three were tried by district court-martial, pleaded not guilty, were convicted and were sentenced. At both the courts-martial a permanent president of courts-martial (or PPCM, Wing Commander Chambers in the first case, Lieutenant Colonel Stone in the second) presided. The sole issue in the appeal before the House in these cases is whether, because of the part played by the PPCM, the courts-martial lacked the qualities of independence and impartiality which article 6(1) of the European Convention on Human Rights requires of any judicial tribunal. The Courts-Martial Appeal Court (Laws LJ, Holman and Goldring JJ) decided this issue against the accused: [2001] QB 804.

    2. The second group of appeals comprises the cases of Mr Saunby, Sapper Clarkson, Lance Corporal English, Flying Officer Williams, Senior Aircraftman Dodds, Messrs Leese, Marsh and Webb and Aircraftman Ashby. They were charged with a variety of different offences (Clarkson and English jointly). All appeared before district courts-martial (DCMs) except Williams (who, as a commissioned officer, appeared before a general court-martial, or GCM). All pleaded not guilty but were convicted, save for Ashby who pleaded guilty. A variety of different sentences were passed, ranging from 84 days' imprisonment and dismissal (Saunby, Webb) to forfeiture of three years' seniority (Williams). Petitions for review were rejected in all cases save in that of Dodds, whose sentence of 112 days' detention was reduced to 28 days'. The Courts-Martial Appeal Court (Laws LJ, Turner and McCombe JJ) dismissed appeals by all appellants save in the case of Marsh, whose sentence of 56 days' imprisonment was reduced to 42 days' detention, a reduction which greatly mitigated the financial loss suffered by him on leaving the service: 30 July, 2001, unreported. All the offences of which these appellants were convicted were offences under the ordinary law applicable in the United Kingdom. All the offences (with two exceptions) were committed within the United Kingdom. The issue which arises in all these appeals is whether a trial by court-martial in the United Kingdom of an offence against the ordinary criminal law of the land is compatible with article 6(1) of the European Convention, either generally or in cases where the offence in question had been committed within the United Kingdom.

    3. Since the dawning of the modern age the defence of the state against the threats and depredations of external enemies has been recognised as one of the cardinal functions of government. To this end most countries have over time established regular armed forces, in this country a navy, then an army, and then in due course an air force. The effectiveness of such forces has been recognised to depend on their being disciplined forces: that is, forces in which lawful orders will be obeyed, the law will be observed and appropriate standards of self-control and conduct will be shown.

    4. While disciplinary rules and procedures will inevitably vary from state to state, three principles would now, I think, command acceptance in any liberal democracy governed by the rule of law. (In stating these principles I draw no distinction between different services, although the issues in these appeals do not concern the Royal Navy. Nor do I distinguish between regular and reserve or volunteer forces, or between men and women. It is convenient for purposes of exposition to speak of soldiers and of the army. Since the Army Act 1955 and the Air Force Act 1955 are, in the respects relevant to these appeals, indistinguishable, I shall refer only to the former and to the Courts-Martial (Army) Rules 1997 (SI 1997/169)). First, a man does not by becoming a soldier cease to be a citizen. On becoming a soldier he subjects himself to duties and exposes himself to the risk of penalties to which a civilian is not subject or exposed. But he remains subject to almost every law, including the criminal law, which binds other citizens and continues to enjoy almost all the same rights, including the right (if a charge of serious misconduct is made against him) to a fair trial before an independent and impartial tribunal. Secondly, the maintenance of the discipline essential to the effectiveness of a fighting force is as necessary in peacetime as in wartime: a force which cannot display the qualities mentioned above in time of peace cannot hope to withstand the much more testing strains and temptations of war. Thirdly, and whatever the practice in former times, a modern code of military discipline cannot depend on arbitrary decision-making or the infliction of savage punishments, nor can it depend on inherited habits of deference or gradations of class distinction. Such a code must of course reflect the hierarchical structure of any army and respect the power of command. But an effective code of military discipline will buttress not only the respect owed to their leaders by those who are led but also, and perhaps even more importantly, the respect owed by leaders to those whom they lead and which all members of a fighting force owe to each other.

    5. The dual status of the soldier, as both soldier and citizen, raises no issue where he is said to have committed a purely military offence, that is, an offence which could not be committed by anyone who was not a soldier. Some such offences are potentially very serious: mutiny, desertion, absence without leave, striking a superior officer are examples. Since these are offences which cannot be committed by those not subject to military discipline, it is unsurprising that they cannot be tried in the ordinary courts of the land and can only be tried in a military tribunal. But the effect of section 70 of the Army Act 1955 (as my noble and learned friend Lord Rodger of Earlsferry, whose citation of the relevant legislation and authority I gratefully adopt and need not repeat, has pointed out) is to expose the soldier accused of an offence against the ordinary criminal law of the land to prosecution either in the ordinary courts or in a military tribunal. Since he cannot be tried in either tribunal if he has already been tried in the other for substantially the same offence (see section 133 of the Army Act, and the ordinary common law rules of autrefois convict and acquit), a question may arise whether he should face trial in a civil court or in a military tribunal. As my noble and learned friend has shown, no hard and fast rules have been laid down to resolve this problem where it arises. Instead, a pragmatic solution has been adopted, largely dependent on identification of the public interest which the soldier's allegedly criminal conduct has infringed. If it appears to be the general public interest which has been injured (as where a civilian has been injured or non-military property damaged or stolen) a civil court is ordinarily regarded as the more appropriate forum, since the defendant's status as a soldier is essentially irrelevant to his criminal conduct. If, however, the public interest which the soldier's allegedly criminal conduct has infringed is primarily a service interest (as where another soldier has been injured or military property has been damaged or stolen) the charge is ordinarily considered appropriate for trial by a military tribunal: the general public interest is much less directly engaged, and an internal offence of this kind may well have a direct effect on the morale and discipline of the unit involved.

    6. The practice of other states is not dissimilar to our own. So much appears from such decisions as MacKay v The Queen (1980) 114 DLR (3rd) 393 at 413-414, 416-418, 419-421, 423-426; In re Tracey, Ex p Ryon (1989) 166 CLR 518 at 543-544; R v Généreux (1992) 88 DLR (4th) 110 at 135-136, 156-157. That there is a rational basis for the practice is made plain in those decisions, and in the statement of Air Chief Marshal Sir Anthony Bagnall, the Vice Chief of the Defence Staff which is before the House. In Findlay v United Kingdom (1997) 24 EHRR 221 the defendant was charged with a number of offences of which the more serious were offences against the ordinary criminal law. The European Court of Human Rights found serious breaches of article 6(1) of the convention in the structure and procedure under which courts-martial were then conducted, and a number of changes were made in the Armed Forces Act 1996. The effect of these changes was well summarised by Laws LJ in the first of the judgments under appeal: R v Spear; R v Boyd [2001] QB 804, 812-813, para 18. There is, however, nothing in the judgment of the European Court in Findlay, or in the earlier case of Engel v The Netherlands (No 1) (1976) 1 EHRR 647 or in the more recent case of Morris v United Kingdom (2002) 34 EHRR 1253, to suggest that trial by court-martial, whether of civil or purely military offences, necessarily involves a violation of rights protected by article 6(1).

    7. Lord Thomas of Gresford QC directed his initial challenge on behalf of the second group of appellants to the terms of section 70 of the Army Act 1955, which he criticised as incompatible with article 6(1). The short answer to this point is that given by Mr Havers QC, that this section does not engage article 6(1) at all. While the section provides that persons subject to military law who commit civil offences shall (save in the case of certain offences) be guilty of offences against the section, it makes no provision governing the constitution of the tribunal by which such persons shall be tried nor the procedure to be followed. Recognising this, Lord Thomas concentrated the weight of his argument on criticism of the independence and impartiality of courts-martial as a tribunal for the trial of civil offences committed by servicemen. In these appeals the House is concerned with GCMs and DCMs. It is unnecessary to consider field general courts-martial, which are governed by different provisions (see sections 103A(1) and (2) and 103B of the Army Act 1955), nor is it necessary to explore the differences between GCMs and DCMs. A court-martial of either type has no exact equivalent elsewhere in the British legal system but has features closely reflecting those of well-established judicial models:

(1)  Central to the conduct of a court-martial is the judge advocate, whose role is essentially that of the judge at a criminal trial on indictment in the crown court. He is a trained lawyer of standing and experience. He is responsible for ensuring the fair and regular conduct of the trial. He controls the course of evidence. He rules on legal objections. He gives all appropriate directions to the members of the court-martial on both the facts and the law. He elucidates issues on which the members seek further guidance. He plays no part in reaching a decision on guilt but (if the defendant is convicted) he guides the members on the question of sentence and casts a vote on that issue: see sections 84B(2) and 84B(3), 94(6), 96(1A) and rules 31, 32(1), 39, 69, 70(1), (2), 79, 80(2); and see also Judge J W Rant QC, Courts-Martial Handbook, (1998), pp 10, 146.

(2)  The role of the members of the courts-martial is closely analogous to that of jurors. They come to the case with no legal training (rule 17(b)) and no knowledge of the facts or issues (section 84C). At the outset of the hearing, the names of the members of the tribunal (and also of the judge advocate and of any interpreter) are read out, as is the practice with jurors, and the accused has the right to object to any of them: see section 92 (as amended) and rule 40. The members are bound to give effect to the legal directions given by the judge advocate and will heed the guidance which he gives (section 84B(4)). But they alone are the judges of fact, they alone must resolve issues of credibility and they alone decide whether the charge is proved or not (s 94(6)).

(3)  The role of the PPCM (such as served in the first group of cases under appeal and in the military cases in the second group) is similar to that of a juror in all the respects just noted. But his role differs from that of a juror, and from that of the other military members of the court-martial: during the period of his appointment his full-time professional occupation is to sit in courts-martial; he has administrative responsibilities in relation to the staging of the court-martial; it is his responsibility to see that the hearing is conducted in accordance with service tradition (rule 33(1)); and during the deliberations of the tribunal he will no doubt chair the members' discussion in the manner of a good chairman. The PPCM is in practice more than a permanent foreman of the jury, because he performs the functions already noted and because he has a casting vote on sentence (section 96(5)). Participating in a number of trials, he no doubt acquires a reasonable working knowledge of law and practice, such as a busy and experienced lay magistrate might acquire.

    8. The European Court has defined with great clarity and consistency the meaning of the article 6(1) requirement that a tribunal be independent and impartial. It is enough to quote paragraph 73 of the court's judgment in Findlay v United Kingdom (1997) 24 EHRR 221 at 244-245:

"The court recalls 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 also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect.

The concepts of independence and objective impartiality are closely linked and the court will consider them together as they relate to the present case."

It should also be remembered, as the court pointed out at p 245, para 76, that in order to maintain confidence in the independence and impartiality of the tribunal appearances may be of importance. Relying on these statements of principle, Lord Thomas submitted that courts-martial, in relation to the trial of civil offences committed in England, despite the changes made by the Armed Forces Act 1996, lack the independence and impartiality required of any judicial tribunal by article 6 of the convention. This radical challenge, rejected by the Court of Appeal, plainly calls for very careful consideration.

    9. Lord Thomas did not pursue in argument any challenge to the independence or impartiality of the judge advocate general. Given the key role played by the judge advocate general in the conduct of courts-martial, this is a very significant omission.

    10. Lord Thomas did challenge the independence and impartiality of the PPCM, and this challenge founded the first group of appeals. He naturally relied on the conclusion of Assistant Judge Advocate General Pearson given at the court-martial of Lance Corporal McKendry held at Aldershot on 6 March 2000 that "the appointments of Permanent Presidents do not give rise to an impartial and independent tribunal". But Lord Thomas faced the difficulty that the European Court in Morris v United Kingdom (2002) 34 EHRR 1253, after and with full knowledge of the decisions both in McKendry and (by the Courts-Martial Appeal Court) in the first group of appeals, reached the opposite conclusion: see paragraphs 68-71. I do not for my part doubt that the Courts-Martial Appeal Court and the European Court were correct. PPCMs are appointed to that office in the closing years of their service careers, whether in the army or the Royal Air Force. They are officers who have no effective hope of promotion and no effective fear of removal. While no doubt they are, as officers, answerable for any extra-judicial delinquency, as any judge might be, they are answerable to no one for the discharge of their decision-making function. The only factual matters on which Lord Thomas could rely were the reports written on Wing Commander Chambers who presided at the court-martial of Aircraftman Boyd (there being no report on any army PPCM). It would in my opinion be preferable if no annual report were written on officers serving as PPCMs, but those on Wing Commander Chambers gave no support in substance to Lord Thomas' argument. While praising the Wing Commander's efficiency and effectiveness as a PPCM, they made no allusion at all to the quality or outcome of any of his judicial decisions, but instead made express reference to the isolated, unsupervised and independent nature of his role. There is no substance in this challenge.

    11. Lord Thomas also challenged the independence and impartiality of the junior officers who serve on courts-martial, and in this respect was able to rely on a finding of the European Court in Morris that such officers lacked the necessary qualities of independence and that the applicant's misgivings about the independence of the court-martial were objectively justified: see paragraphs 72, 76. In the first of these paragraphs the court said:

"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."

    12. It goes without saying that any judgment of the European Court commands great respect, and section 2(1) of the Human Rights Act 1998 requires the House to take any such judgment into account, as it routinely does. There were, however, a large number of points in issue in Morris, and it seems clear that on this particular aspect the European Court did not receive all the help which was needed to form a conclusion. It is true that the junior officers who sit on courts-martial have very little legal training, but that is also true of the PPCM whose presence was accepted (paragraph 71) as a guarantee of the rights of the accused. It is also true that junior officers sitting on courts-martial remain subject to army discipline and reports. But there is nothing to suggest that any report ever is or ever has been made on any junior officer's decision-making as a member of a court-martial, and it is hard to see how any such report could be made given the prohibition on disclosure of the deliberations of the tribunal in the oath taken by the members. There is nothing to suggest that they remain subject to service discipline in relation to their judicial decision-making, and again it is hard to see how they could. It is true that there is no statutory bar on an officer being made subject to external army influence when sitting on the case. Any person seeking to influence the decision of a sitting member of a court-martial otherwise than at the hearing would, however, be at risk of prosecution either for perverting or attempting to pervert the course of justice or under section 69 of the Army Act. The officer members are drawn from a different command from the accused. Briefing notes sent to officer members of courts-martial before they sit enjoin them not to "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". They are instructed in writing not to talk to anyone about the case (other than the other members of the court-martial, when all are together) for as long as the trial continues, and this instruction is routinely emphasised by the judge advocate. The officers do not occupy accommodation at the unit of the accused and are told to be seen to avoid "local unit influences". They are instructed "not to associate with Formation or Unit personnel either professionally or socially until the trial is over". At the outset of the hearing the officers take an oath in terms quoted by the European Court in paragraph 27 of its judgment in Morris, swearing to try the accused "according to the evidence" and to "administer justice according to the Army Act 1955 without partiality, favour or affection". In considering the independence and impartiality of the PPCM both the Court of Appeal in its judgment in R v Spear; R v Boyd [2001] QB 804 at paragraphs 33 and 35 and the European Court in Morris (at paragraphs 68-69) attached weight to established convention and practice. In my opinion the rules governing the role of junior officers as members of courts-martial are in practice such as effectively to protect the accused against the risk that they might be subject to "external army influence", as I feel sure the European Court would have appreciated had the position been more fully explained.

    13. In its judgment in Morris (at paragraphs 73-75) the European Court criticised the role of the reviewing authority established under section 113 of the Army Act. Lord Rodger has outlined the role of the reviewing authority and I need not repeat his account. Its role can certainly be seen as anomalous, since ordinarily a binding decision of any court cannot be disturbed otherwise than (exceptionally) by itself or by a superior appellate court. It is however to be noted that the review of conviction and sentence carried out by the reviewing authority, whether the accused seeks such review or not (section 113(3) of both Acts), cannot work otherwise than to the advantage of the accused. The reviewing authority cannot substitute conviction of a more serious offence, nor can it substitute a sentence which is in its opinion more severe (section 113AA(4)). This subsection does not confer a discretion, but calls for an exercise of judgment. It is essentially the same exercise of judgment as is required of the Court of Appeal under sections 4(3) and 11(3) of the Criminal Appeal Act 1968, which has not given rise to difficulty in practice. If the reviewing authority were to substitute a sentence which the accused considered to be more severe than that imposed by the court-martial, it would be open to the accused to challenge the substituted sentence on appeal to the Courts-Martial Appeal Court, and it is important to note that the intervention of the reviewing authority in no way diminishes the rights of the accused on appeal. It is difficult to see any analogy with the situation which the European Court considered in Brumarescu v Romania (1999) 33 EHRR 862 where the applicant, with a final and irreversible judgment of a court in his favour, was deprived of the benefit of that judgment by a later decision in proceedings initiated by a party not involved in the earlier case. If a court-martial is not an independent and impartial tribunal for the trial of civil offences committed by service personnel in England and Wales, the reviewing authority could not be relied on to save it. But if it is, I find it difficult to understand how the role of the reviewing authority can undermine or reduce its independence and impartiality. Lord Thomas recognised the difficulty of this argument and did not seek to sustain the judgment of the European Court on the point. For similar reasons I find it unnecessary to consider the role of the prosecuting authority, of which Lord Thomas made certain (to my mind unpersuasive) criticisms.

    14. Lord Thomas also advanced a more general criticism of trial by court-martial. The whole culture and ethos of the services, he submitted, is such as to incline those who take part in courts-martial to attach excessive weight to the values of discipline and morale, to the point of rendering the trial of the accused unfair. He complained of the ritual which has accompanied the conduct of courts-martial, at any rate in the past, as being oppressive and intimidatory. I would for my part have no hesitation in agreeing that a court-martial is a court of law, not a parade, and its procedures (while properly involving some formality) should be those appropriate to a court of law and not the parade ground. I would also accept that officers serving on courts-martial will disapprove of those found to have acted in breach of the law governing their respective service. But judges and jurors in the crown court will similarly disapprove of those found to have infringed the ordinary criminal law. There is no reason to think that in the former case any more than in the latter such disapproval will infect the tribunal's approach to deciding whether the particular accused has broken the law in the manner charged. 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.

    15. In truth, as was pointed out in argument, Lord Thomas' submission was vitiated by a contradiction lying at its heart. For he raised no objection to the trial by court-martial of purely military offences charged against servicemen, wherever committed, and he accepted that civil offences charged against servicemen abroad, in places where the local administration of justice had broken down or was of unacceptable quality, could properly be tried by court-martial. But a court-martial either is or is not an independent and impartial tribunal. If it is, it can properly try civil as well as purely military offences. If it is not, it cannot, compatibly with article 6(1), try military offences, which may carry a severe sentence of imprisonment or detention. Nor, leaving aside issues concerning the territorial reach of the convention, and leaving aside also the special conditions in which a field general court-martial may be held, can it be compatible with the standard required by article 6(1) to subject service personnel accused of civil offences committed abroad to trial by court-martial if such is not an independent and impartial tribunal. Lord Thomas is not to be criticised for limiting his argument as he has, no doubt wisely, chosen to do. But if courts-martial are to be regarded, as in my opinion they are, as independent and impartial tribunals for the trial of military offences and civil offences committed abroad in the conditions noted, it must follow that they are also independent and impartial tribunals for the trial of civil offences committed in the United Kingdom.

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