Judgments - Regina v Boyd Etc.

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    16. For these reasons, and those more fully given by Lord Rodger with which I am in full agreement, I would dismiss both groups of appeals.

LORD STEYN

My Lords,

    17. I have read the opinions of Lord Bingham of Cornhill and Lord Rodger of Earlsferry. For the reasons they give I would also dismiss the appeals.

LORD HUTTON

My Lords,

    18. I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Bingham of Cornhill and Lord Rodger of Earlsferry. I agree with them, and for the reasons they give I would also dismiss the appeals.

LORD SCOTT OF FOSCOTE

My Lords,

    19. I have had the advantage of reading in draft the speeches of my noble and learned friends, Lord Bingham of Cornhill and Lord Rodger of Earlsferry. I agree with them and for the reasons they give I too would dismiss the appeals.

LORD RODGER OF EARLSFERRY

My Lords,

    20. The appeals before the House challenge the compatibility of the appellants' trials by court-martial with article 6 of the European Convention on Human Rights and Fundamental Freedoms. In particular on behalf of the appellants Lord Thomas of Gresford QC based his challenge on their right to the determination of the charges against them by "an independent and impartial tribunal" in terms of the first sentence of article 6(1):

    "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

    21. There are in total 12 appeals against decisions of the Courts-Martial Appeal Court ("the Appeal Court"). In a judgment dated 15 January 2001 the Appeal Court, comprising Laws LJ, Holman and Goldring JJ, refused the appeals of John Spear and Philip Hastie along with the separate appeal of David Morton Boyd: R v Spear [2001] QB 804. I refer to the three appeals by that name. The Appeal Court (Laws LJ, Turner and McCombe JJ) subsequently refused the other nine appeals, along with an appeal by John Scofield, in an unreported judgment dated 30 July 2001: R v Williams and others [2001] EWCA Crim 2311. In the documentation of these appeals before the House the appeal of David Saunby appeared first and it is therefore convenient to refer to them collectively under his name (R v Saunby).

    22. In R v Spear the Appeal Court certified that the following question of law of general public importance was involved:

    "Whether proceedings by way of courts-martial regularly constituted and conducted in accordance with a procedure prescribed by Parliament may nevertheless be incompatible with the provisions of article 6 of the European Convention on Human Rights when those proceedings are chaired by (a) a permanent president of the courts-martial and (b) a deputy judge advocate".

Before the House Lord Thomas accepted that no issue arose as to the role of the deputy judge advocate and he therefore concentrated on the role of the permanent president. In R v Saunby the Appeal Court certified that the nine appeals involved this point of law of general public importance:

    "Is a trial by court-martial in the United Kingdom of a civilian criminal offence, that is to say, an offence falling under section 70 of the Air Force Act 1955 or section 70 of the Army Act 1955, compatible with article 6(1) of the European Convention on Human Rights (a) generally, or (b) at least in regard to cases where the offence in question is said to have been committed in the United Kingdom?"

At the hearing of the appeals there were accordingly two certified questions in play but both counsel treated the more particular question in R v Spear, relating to the role of the permanent president, as one aspect of the wider challenge to the compatibility with article 6 of trial by courts-martial of what the certified question in R v Saunby calls "civilian criminal offences". The submissions of counsel in relation to this wider challenge were advanced in respect of all the appeals, while the submissions on the position of the permanent president were advanced in respect of all the appeals where the court-martial had been chaired by a permanent president.

    23. Since various other, discrete, issues were canvassed in the proceedings before the Appeal Court, it was necessary for that court to examine the circumstances of the individual cases in some detail. In the proceedings before the House, on the other hand, the debate was conducted without reference to the particular circumstances of the individual cases. For present purposes therefore I need not narrate those circumstances and I can simply, and gratefully, refer to the full accounts given by the Appeal Court in both their judgments. Some of the appellants were serving in the Army and the others in the Royal Air Force. They were, accordingly, all persons to whom military law applied by virtue of section 205 of the Army Act 1955 or section 205 of the Royal Air Force Act 1955 ("the Acts").

    24. The military law set out in the Acts contains many offences which are peculiar to the forces, e g, mutiny (section 31), being absent without leave (section 38) and spreading reports that are likely to create despondency or unnecessary alarm (section 63A). In addition, however, section 70 provides inter alia:

    "(1)  Any person subject to military law who commits a civil offence, whether in the United Kingdom or elsewhere, shall be guilty of an offence against this section.

    (2) In this Act the expression 'civil offence' means any act or omission punishable by the law of England or which, if committed in England, would be punishable by that law; and in this Act the expression 'the corresponding civil offence' means the civil offence the commission of which constitutes the offence against this section.

    (3) Subject to section 71A below a person convicted by court-martial of an offence against this section shall -

      (a) if the corresponding civil offence is treason … be liable to suffer death;

      (aa) if the corresponding civil offence is murder, be liable

      to imprisonment for life;

      (b) in any other case, be liable to suffer any punishment or punishments which a civil court could award for the corresponding civil offence, if committed in England, being a punishment or punishments provided by this Act, or such punishment, less than the maximum punishment which a civil court could so award, as is so provided…

      (4) A person shall not be charged with an offence against this section committed in the United Kingdom if the corresponding civil offence is treason, murder, manslaughter, treason-felony or rape…

      (6) A person subject to military law may be charged with an offence against this section notwithstanding that he could on the same facts be charged with an offence against any other provision of this Part of this Act."

The effect of subsections (1) and (2) is, first, that where anyone who is subject to military law is guilty of an act or omission in England that would be punishable by the law of England, he is also guilty of an offence under section 70. Similarly, anyone who is guilty of an act or omission that would be punishable by the law of England if committed in England is guilty of an offence under section 70 wherever he commits it, whether in some other part of the United Kingdom or elsewhere in the world: Cox v Army Council [1963] AC 48. So, for instance, a soldier or airman who possesses cocaine in England is guilty not only of an offence under section 5(1) of the Misuse of Drugs Act 1971 but also of an offence against section 70 of the Army Act or the Air Force Act, as the case may be, although he can, of course, be prosecuted for only one of them. If he possesses cocaine while on duty in Afghanistan, on the other hand, he does not commit an offence under section 5(1) of the 1971 Act since the legislation does not apply there, but he is guilty of an offence under section 70 of the relevant 1955 Act, because he would have been guilty of a contravention of section 5(1) if he had been in possession of the drug in England. Offences of this kind, which mirror offences under English criminal law, are referred to as "civil" offences (section 70(2)). As section 70(3) makes clear, these civil offences are triable by court-martial. All of the appellants were convicted of civil offences of this kind after trial by court-martial. The question of law certified by the Appeal Court in R v Saunby relates only to the trial by court-martial of such civil offences. Put shortly and subject to what I say later, Lord Thomas's contention was that, if committed in the United Kingdom or in a country with an acceptable criminal justice system, civil offences should be tried by the ordinary criminal courts rather than by court-martial and that the appellants' article 6 right to a fair trial of the charges against them had been infringed by their being subjected to trial by court-martial.

    25. All the appellants were tried by a district court-martial comprising, in accordance with the minimum statutory requirement, a judge advocate, a president and two other officers (section 84D(2)). In R v Spear and in the cases of David Saunby, Lee Martin Clarkson and Paul Anthony English the president was a "permanent president", i e an officer towards the end of his career whose only Service function was to act as the president of courts-martial. In the other appeals the president, like the other members, was appointed ad hoc. The powers of general and district courts-martial are set out in section 85:

    "(1) A general court-martial shall have power to try any person subject to military law for any offence which under this Act is triable by court-martial, and to award for any such offence any punishment authorised by this Act for that offence.

    (2) A district court-martial shall have the powers of a general court-martial except that it shall not try an officer or sentence a warrant officer to imprisonment, discharge with ignominy, dismissal or detention, and shall not award the punishment of death or of imprisonment for a term exceeding two years or make an order committing a person to be detained under section 71AA of this Act for a period exceeding two years."

The district courts-martial therefore had the appropriate powers of punishment from among those listed in section 71(1):

    "(a) death,

    (b) imprisonment,

    (bb) detention by virtue of a custodial order made under section 71AA of this Act [dealing with young service offenders],

    (c) dismissal with disgrace from Her Majesty's service,

    (d) dismissal from Her Majesty's service,

    (e) detention for a term not exceeding two years,

    (f) forfeiture of seniority for a specified term or otherwise,

    (g) reduction to the ranks or any less reduction in rank,

    (h) fine,

    (i) severe reprimand,

    (j) reprimand,

    (k) in the case of an offence which has occasioned any expense, loss or damage, stoppages, and

    (l) such minor punishments as may from time to time be authorised by the Defence Council."

Subsection (1) goes on to provide that:

    "For the purposes of this Part of this Act a punishment specified in any of the above paragraphs shall be treated as less than the punishments specified in the paragraphs preceding that paragraph and greater than those specified in the paragraphs following it;

    Provided that detention shall not be deemed to be a less punishment than imprisonment if the term of detention is longer than the term of imprisonment."

    26. After the appellants had been convicted and sentenced by their respective district courts-martial, their conviction and sentence were subject to review by the reviewing authority under section 113. The reviewing authority reviews both conviction and sentence in all cases, whether or not the convicted person petitions for a review (section 113(2)). For these purposes the reviewing authority is the Defence Council or any officer to whom all or any of the powers of the Defence Council as reviewing authority have been delegated (section 113(5)(b)). In practice such reviews are carried out by an officer who gives the person affected the reasons for his decision: rule 83 of the Courts-Martial (Army) Rules 1997 (SI 1997/169) and of the Courts-Martial (Royal Air Force) Rules (SI 1997/171)("the Rules"). Conviction and sentence are also reviewed by the Judge Advocate General who will advise the reviewing authority if he thinks that either the conviction or the sentence should be altered in the convicted person's favour. The advice is disclosed to the convicted person. The reviewing authority may quash a finding of guilt and quash the related sentence or substitute a finding of guilt if it is one that the court-martial could have validly made and the reviewing authority is of the opinion that the court-martial must have been satisfied of facts which would justify the making of that finding (section 113AA(2)). Where the reviewing authority substitutes a finding in exercise of that power, it may

    "pass any such sentence (not being, in the opinion of the authority, more severe than the sentence originally passed) open to a court-martial on making such a finding as appears proper."

Similarly, when reviewing sentence the authority may quash the original sentence or substitute a sentence which was open to the court-martial, "not being, in the opinion of the authority, more severe than the sentence originally passed" (section 113AA(4)).

    27. Two important points to notice about the powers of the reviewing authority are that they are confined by the terms of the original charge against the convicted person and that the reviewing authority cannot pass any sentence that is, in its opinion, more severe than the sentence originally passed. The system is therefore intended to operate solely to the advantage of persons convicted and sentenced by court-martial. The House was supplied with figures showing that in the year 2000, in prosecutions under the Army Act 1955, 455 cases were reviewed, 107 after petition, the remaining 348 without any petition by the convicted person. In the petition cases 19 sentences were mitigated and three quashed, while in the non-petition cases five sentences were mitigated and three quashed. In fact, however, in none of the cases which form the subject of these appeals, except that of Andrew Alistair Dodds, did the reviewing authority touch either the conviction or the sentence. The court-martial sentenced Dodds to 112 days' detention but on review this was reduced to 28 days.

    28. Even after a case has been reviewed by the reviewing authority, the convicted person may appeal to the Appeal Court against his conviction or sentence, with leave of that court, under section 8(1) of the Courts Martial (Appeals) Act 1968. The Appeal Court must allow an appeal against conviction and quash the conviction if they think that it is unsafe (section 12). Where a conviction is quashed on appeal, the person is not liable to be tried again for that offence by a court-martial or any other court (section 18), unless the Appeal Court authorise a retrial by court-martial in the interests of justice (section 19(1)). The Appeal Court have power to quash any sentence if they consider that it is not appropriate for the case and in that event they may pass a sentence that is not of greater severity than the one for which it is substituted (section 16A). In addition the Appeal Court have, of course, a range of ancillary powers, e g, to order the production of documents, to order that witnesses should be examined and to receive fresh evidence (section 28(1)). It is unnecessary to explore these powers since there was no suggestion that the Appeal Court who heard the appeals in these cases lacked the powers necessary to provide an effective remedy.

    29. The present appeals are by no means an isolated phenomenon. They are the latest in a series of challenges to the system of trial by court-martial under United Kingdom law which has been going on for a number of years. These challenges have borne fruit in the shape of substantial reforms to the court-martial system. Particularly important was the judgment of the European Court of Human Rights ("the European Court") in Findlay v United Kingdom (1997) 24 EHRR 221 which criticised the system as it stood before the Armed Forces Act 1996 introduced a number of very significant changes, in particular the abolition of the institutions of "the convening officer" and "the confirming officer". The changes were designed to ensure the independence of the prosecuting authority and of its decision-making and also to make the courts-martial themselves independent of both the prosecuting authority and the wider Service command structure. The effects of the reforms were accurately summarised by the Appeal Court in R v Spear [2001] QB 804, 812-813, para 18. In Morris v United Kingdom (2002) 34 EHRR 1253, 1275, para 61 the European Court noted that these reforms had gone a long way to meeting its concerns in Findlay. All the appeals before the House arise from cases conducted in accordance with the reformed procedures. Despite the reforms, challenges to the system continue to come before the European Court. It was indeed only after leave to appeal to this House had been granted in the present cases that the European Court gave judgment in Morris v United Kingdom. Your Lordships were told that there were other cases in the pipeline. In Morris the Third Chamber of the European Court rejected a challenge based on the role of the permanent president but upheld the contention that there were no adequate safeguards of the independence of the other two officers. The Court also held that the role of the reviewing authority was incompatible with a court-martial being an independent "tribunal" in terms of article 6(1). The Government did not request that the case should be referred to the Grand Chamber. In these circumstances Lord Thomas placed considerable weight on the decision in Morris as to the position of the officers other than the permanent president. For the respondents Mr Havers QC founded on the part of the decision where the European Court rejected the challenge to the role of the permanent president. He also indicated that, in cases still to be heard by the European Court, the Government would argue that the decision in Morris on the role of the other officers and of the reviewing authority had proceeded on a view of the factual position that was incomplete. While the decision in Morris is not binding on the House, it is, of course, a matter which the House must take into account (section 2(1)(a) of the Human Rights Act 1998) and which demands careful attention, not least because it is a recent expression of the European Court's view on these matters.

    30. In presenting the appeal, Lord Thomas made a number of separate criticisms of the system of trial by court-martial, his purpose being to show that, taken overall, the system as operated in the appellants' cases had infringed their right to a fair trial under article 6. In order to evaluate those criticisms, I must look in more detail at how the system actually works.

    31. When a possible offence is reported, it is necessary to decide whether it should be prosecuted and, if so, whether it should be prosecuted in the civil courts or dealt with by the Service authorities, in particular by prosecution before a court-martial. The guiding principles, which have been agreed with the relevant civil authorities, are set out in Queen's Regulations. Where the offence is against military law only, jurisdiction will be with the Service authorities (J7. 002 a(1)). Where, as in these appeals, the offence is a civil offence, in the United Kingdom jurisdiction lies with both the Service authorities and the civil authorities except in a number of particularly serious offences, such as treason, murder, manslaughter and rape, when jurisdiction lies wholly with the civil authorities (J7. 002 a(2) and (3)). When the offence is committed abroad, jurisdiction lies wholly with the civil authorities if the offence is an offence only under the local law (J7. 002 b(2)). When the offence committed abroad is an offence against military law only, then, subject to the local law of the country concerned or the terms of any relevant agreement or treaty, jurisdiction is wholly with the Service authorities (J7. 002 b(1)). When the offence is one against both military law and local law then, again subject to the law of the country concerned or the terms of any relevant treaty or agreement, jurisdiction lies with both the Service authorities and the civil authorities (J7. 002 b(3)).

    32. The precise way in which a case involving an alleged civil offence is handled will depend, to some extent, on the way the alleged offence comes to light. For instance, an offence allegedly committed on Service property is more likely to come initially to the notice of the Service authorities, while the equivalent offence committed elsewhere may well first come to the notice of the civil police. In minor cases - and there are, of course, more minor than major cases - the commanding officer may feel able to handle the matter within the Service disciplinary structure but, where it is necessary to involve the civil authorities, the matter will be reported to the chief police officer for the area. The relevant regulation (J7. 004A) makes it clear that, as well as cases of murder, manslaughter or rape, the commanding officer must report "any other case where civilians are involved and Ministry of Defence police are not in situ or readily available". In addition to certain road traffic offences, he must report any other offence which may require to be dealt with by the civil authorities, for example, because it is one of a category of offences of importance to the community either locally or nationally.

    33. Where jurisdiction lies with either the Service or the civil authorities, regulation J7. 005 provides that in cases reported to the police it is for the chief officer of police to decide, normally after consultation with the commanding officer, whether the alleged offender is to be tried by the civil court or is to be dealt with by the Service authorities. Counsel informed the House, however, that the decision is nowadays one for the Crown Prosecution Service, just as, in Scotland, it is one for the local procurator fiscal under the direction of the Lord Advocate (regulation J7. 012 a). Again, regulation J7. 007 provides that certain qualifications have to be taken into account, including

    "b. If the alleged offender was on duty at the time and the offence constituted a breach of that duty, the police will normally hand him over to the Service authorities even though the offence may affect the property of a civilian. This would not apply to a charge such as dangerous driving which involves risk to the general public.

    c. The Service authorities will generally deal with an offence committed by a member of the forces on Service premises, if it can be dealt with summarily, and was either a minor assault on a civilian or a minor offence against the property of a civilian."

In Scotland these particular qualifications do not apply (regulation J7. 012 a).

    34. Regulation J7. 013 deals with jurisdiction in Commonwealth and foreign countries and provides inter alia:

    "a. When United Kingdom forces are stationed in Commonwealth or foreign countries, or members of those forces are serving on loan or otherwise with the forces of such countries, it is the policy of Her Majesty's Government to secure arrangements which protect members of the United Kingdom forces, the civilian component, and their dependants from the jurisdiction of local military law and from the criminal jurisdiction of local courts. In some cases exclusive jurisdiction for the United Kingdom Service authorities is sought; elsewhere it is sought in respect of offences committed on duty and in certain other circumstances. Such arrangements are usually made by provisions included in defence agreements, status of forces, loan or training team agreements, or local visiting forces Acts."

It is apparent, therefore, that the policy behind Queen's Regulations is very different from the thinking behind the submission advanced by Lord Thomas. Whereas he contended that the general rule should be that, wherever possible, alleged acts which would constitute offences under both local and military law should be tried by the local criminal courts, the policy of Queen's Regulations has been to "protect" members of the armed forces, the civilian component and their dependants from local courts. Lord Thomas sees the court-martial system as something from which Service offenders should be shielded, whereas the regulations see the availability of trial by court-martial as a boon to them.

    35. In a case of overlapping Service and civil jurisdiction, it is ultimately the civil authorities who decide whether an offender is to be dealt with under the civil system or under military law. Lord Thomas stressed that in fact the majority of civil offences which go to trial are tried by the civil courts. So, he said, if the House were to hold that trial of civil offences by court-martial was incompatible with article 6, with the result that all such offences had to be tried by the civil courts, this would be neither a breakthrough in principle nor any very radical step in practice. He was merely arguing for a return to the position as understood by Lord Loughborough LC who held in Grant v Gould (1792) 2 H Bl 69, 99 that

    "In this country, all the delinquencies of soldiers are not triable, as in most countries in Europe, by martial law; but where they are ordinary offences against the civil peace, they are tried by the common law courts."

That had indeed remained the position until the enactment of section 45 of the Naval Discipline Act 1866 (29&30 Vict c 109), in the case of the Navy, and the enactment of section 41 of the Army Discipline and Regulation Act 1879. While returning to the original position would involve some increase in the workload of the civil prosecuting and judicial authorities, the increase would, said Lord Thomas, be relatively slight and could be accommodated.

    36. Under the existing system, an allegation that a person subject to military law has committed an offence must be reported to his commanding officer in the form of a charge and the commanding officer must investigate the charge: section 76(1) and (2) of the Acts. After investigation, the commanding officer may decide to refer the charge to higher authority under section 76(5)(b) and, if he does so, then the higher authority must usually refer the case to the prosecuting authority (section 76A(1)). For these purposes "the prosecuting authority" is an officer, appointed by Her Majesty, who has been legally qualified for at least 10 years (section 83A). If the prosecuting authority considers that court-martial proceedings should be instituted, he must determine any charge to be preferred and whether it is to be tried by general or district court-martial, and he must also prefer the charge (section 83B(4)). The prosecuting authority must notify the accused's commanding officer and a court administration officer (section 83B(6)). The prosecuting authority has the conduct of any subsequent court-martial proceedings against the accused and has power to make all the decisions relating to the prosecution (section 83B(7) and (8)). The prosecuting authority may delegate any of his functions to officers whom he appoints as prosecuting officers, but they too must be legally qualified (section 83C).

 
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