Regina v Boyd Etc.
53. Lord Thomas put at the forefront of his submissions a general argument that, because trial by court-martial infringed article 6 of the Convention, section 70 of the Acts should be declared to be incompatible with that article. Counsel for the respondents argued that this submission was totally misconceived since section 70 was a section which created an offence rather than one which conferred jurisdiction on courts-martial. In their judgment in R v Saunby, para 32 the Appeal Court accepted that argument and I would do so too. But even supposing that Lord Thomas could have founded such an argument on the reference in subsection (3) to "a person convicted by court-martial", the argument would necessarily have failed since, as the decision in Morris v United Kingdom 34 EHRR 1253 shows, it is impossible to say that in their very nature all trials by court-martial involve an infringement of the accused's article 6 rights.
54. Since trial by court-martial does not necessarily involve an infringement of the accused's rights under article 6, the decision as to whether the court is to be regarded as an independent and impartial tribunal depends on the safeguards which are in place. It follows that the decision in these appeals depends on whether the safeguards of the independence and impartiality of the members of the courts-martial in these cases can be regarded as satisfactory.
55. In Findlay v United Kingdom 24 EHRR 221, 244 - 245, para 73 the European Court recalled that
In Porter v Magill  2 WLR 37, 84A-B, para 103 Lord Hope of Craighead, with whom the other members of the House agreed, having surveyed the European Court, United Kingdom and Commonwealth case law on this point, concluded:
56. Lord Thomas did not suggest that the members of the courts-martial in these cases had been subjectively biased. He argued, however, that the fair-minded and informed observer would conclude that the safeguards were inadequate to guarantee the independence and impartiality of the members of the courts-martial, especially having regard to the lack of security of tenure for permanent presidents and the ad hoc appointments of the other officers. Given their position as serving officers in the armed forces, the fair-minded observer would see it as possible that they would give undue weight to the need to maintain service morale and discipline and that, as officers, they would be unable fairly to judge cases involving lower ranks, especially if, say, convicting an officer or acquitting a private meant disbelieving an officer or non-commissioned officer. Courts-martial could not, therefore, be regarded as objectively impartial in terms of article 6.
57. A submission of this kind requires one, as a starting-point, to consider what is meant by the requirement that a tribunal should be independent and impartial. As the European Court noted in Morris v United Kingdom (1992) 34 EHRR 1253, 1274, para 58, the concepts of independence and objective impartiality are closely linked. In the present cases, in substance, the court-martial must be guarded from the risk of influence by the prosecution and guarded from the risk of influence by the relevant Service authorities, especially superior officers who might wish to secure some particular result, supposedly in the interests of the morale or discipline of the Service or of some particular unit. As a result of the abolition of the role of the convening officer by the 1996 Act, no issue was raised in these cases as to the independence of the members of the tribunal from the prosecution. On the other hand, article 6 does not require that the members of the tribunal should not share the values of the military community to which they belong any more than it requires that the judge or members of the jury in a civil court should be divorced from the values of the wider community of which they form part. What matters is that, while sharing the values of the Service community, the members of the court-martial should put aside any prejudices which they may have and act - and be seen to act - independently and impartially in deciding the issues in the case before them.
58. Lord Thomas dealt first with the position of permanent president. In R v Spear, in the trial involving Spear and Hastie, the president of the court-martial was a permanent president, Lieutenant Colonel Stone. In the trial of Boyd the president of the court-martial was again a permanent president, Wing Commander Chambers. In the trial of Saunby also the president was a permanent president, Lieutenant Colonel de Lisle. Another permanent president, Lieutenant Colonel Hall, sat in the trial of Clarkson and English. In challenging the role of the permanent presidents in these cases Lord Thomas had, of course, to take account of the judgment of the European Court on this point in Morris v United Kingdom 34 EHRR 1253, 1276-1277, paras 68-69:
59. About two years before this judgment of the European Court, apparently giving a clean bill of Convention health to permanent presidents, in R v McKendry (unreported) 6 March 2000 Judge Advocate Pearson had held that the president of that particular district court-martial should stand down because he could not be regarded as independent and impartial for purposes of article 6(1). Although the judge advocate purported to limit his ruling to the particular case, the result of it was that the use of permanent presidents was forthwith abandoned. Officers who had been serving as permanent presidents found themselves without a role. It appears that, pending the outcome of these appeals, the use of permanent presidents has not been resumed.
60. In R v Spear  QB 804, 814, paras 22 and 23 the Appeal Court summarised the information given to them about the two permanent presidents, Lieutenant Colonel Stone and Wing Commander Chambers, in this way:
In R v Saunby no particular points were made about Lieutenant Colonel de Lisle or about Lieutenant Colonel Hall.
61. So far as Lieutenant Colonel Stone is concerned, Lord Thomas accepted that the position was as outlined by the Appeal Court. In particular he accepted that, since 1997, in the Army there had been no reports on permanent presidents. That being so, in the appeals of Spear and Hastie Lord Thomas was not able to distinguish Morris v United Kingdom 34 EHRR 1253. Since he did not argue that, on its facts, this aspect of the decision in Morris had been wrong, Lord Thomas's submissions on behalf of these appellants were really of a more general nature, dealing with the perceived weaknesses in the role of any officer as a member of a court-martial.
62. In the case of the appellant Boyd, however, Lord Thomas argued that the position was not so straightforward as the account given by the Appeal Court would suggest. Unlike the Army permanent presidents, in particular the permanent president in Morris v United Kingdom, Royal Air Force permanent presidents, such as Wing Commander Chambers, remained subject to reports. Mr Havers accepted that, for some reason that he could not explain, the Air Force had indeed continued the practice of preparing reports on officers who were serving as permanent presidents. In my view that practice is undesirable and, as the Army experience shows, unnecessary. It would be better if it were discontinued. Lord Thomas went on to submit that, contrary to the conclusion of the Appeal Court, an examination of the reports on Wing Commander Chambers written in August 1999 and August 2000 suggested that the practice of reporting had indeed jeopardised his independence. He pointed out that in one report the permanent president's function was said to be one on which "the Service's disciplinary ethos is based" and comments were then made as to the enthusiasm which Wing Commander Chambers brought to his role - for example, it was said that he "relishes the challenge each court brings". In 1999 the Air Secretary noted that he was well suited to continue to his retirement in 2000 "when consideration could again be given as to whether the post should be held by a recently retired officer " In fact, Wing Commander Chambers' retirement date was extended for two years from December 2000 and so that particular issue did not arise, but it might be thought, said Lord Thomas, that an assessment of his performance as a permanent president would have been relevant to the decision as to whether or not his period of service should be extended. Thus the reporting process, with its possible consequences for his future, could have affected his independence and impartiality.
63. As Mr Havers pointed out, however, while the reports make various comments on the way that Wing Commander Chambers tackled his role as a permanent president, these are better seen as referring to the administrative aspects of the job, such as checking the trial facilities and briefing the other participants. Crucially, there was not the slightest indication that the reports bore on his actual decisions when sitting as president of a court. On the contrary the reports recognise that that role is one in which the permanent president is "isolated and unsupervised" and which requires independence which the Air Secretary "honour[s] and respect[s]", there being only an administrative and welfare linkage. The reporting officer recognises the limitation on his role since he is not "allowed any direct insight into the way [Wing Commander Chambers] has discharged his duties. Indeed a key ingredient is the ability to work without supervision." In these circumstances I readily conclude that neither the fact that Wing Commander Chambers was subject to reports of this nature, nor the actual reports themselves that were made on him, give the slightest reason for considering that his independence or impartiality as a member of the appellant Boyd's court-martial was compromised. On the contrary, all involved in making these reports were well aware of the need not to intrude upon the decisions reached by him when sitting as president. Even had anyone wished to intrude, the oath of secrecy taken by the members of courts-martial would have made it impossible to investigate those decisions.
64. That being so, there is nothing in the particular circumstances of the cases of Spear and Hastie or of Boyd which would be a reason to reach a different result from the European Court in Morris v United Kingdom on the issue of the independence and impartiality of the officers acting as president of their courts-martial. I respectfully agree with and adopt the reasoning of the European Court on this point. I would accordingly reject Lord Thomas's argument that these appellants' rights under article 6(1) were infringed because the presidents of their courts-martial were permanent presidents.
65. When he turned to the position of the other officers on the courts-martial, Lord Thomas was able to claim support for his argument from the relevant aspect of the decision of the European Court in Morris v United Kingdom 34 EHRR 1253, 1277-1278, paras 70-72:
Lord Thomas submitted that the House should follow this part of the decision of the European Court in Morris and that, indeed, it would be unprecedented for a court not to do so where the decision of the European Court was so recent.
66. In reaching its decisions the European Court always pays careful attention to the facts of the case as explained to it. In the jargon of the subject, its decisions are said to be "fact-sensitive". As can be seen from the passage in question, the decision in Morris is no exception. For whatever reason, however, the European Court was given rather less information than the House about the safeguards relating to the officers serving on courts-martial. And, like the European Court, the House must have regard to all the relevant factual information presented to it when deciding whether the safeguards of the independence and impartiality of the members of the courts-martial were adequate.
67. It is true that, apart from any permanent president, the officers selected to serve on courts-martial are appointed only ad hoc. As the European Court points out, that is not in itself sufficient to make the court incompatible with the independence requirements of article 6(1). Indeed, in performing the role only occasionally, the members of a court-martial resemble jurors and should bring to the task the freshness of approach which is one of the benefits of the jury system. Of course, as individuals and as officers in the armed forces, those asked to sit on a court-martial may well have certain prejudices. Jurors too have prejudices and, as McIntyre J rightly pointed out in MacKay v The Queen (1980) 114 DLR (3d) 393, 420-421, quoted above at paragraph , the same can be said of those appointed to judicial office in civilian society. In the light of their experience of jury trial, however, courts in countries which operate with juries have concluded that the safeguards of the oath and the judge's directions are generally sufficient to ensure that jurors put aside their prejudices and reach a just verdict on the evidence. Indeed, as Lord Hope of Craighead observed in Montgomery v HM Advocate  2 WLR 779, 810D, the entire system of trial by jury is based on the assumption that the jury will follow the instructions which they receive from the trial judge and that they will return a true verdict according to the evidence. The European Court too has recognised that the jurors' oath, to faithfully try the case and to give a true verdict according to the evidence, and their obligation to have regard to the directions given by the presiding judge will generally be sufficient to safeguard their independence and impartiality. This is so even in cases where there is reason to believe that one or more members of the jury may actually be prejudiced against the accused. I refer to the well-known decisions in Pullar v United Kingdom (1996) 22 EHRR 391, 405, para 40 and Gregory v United Kingdom (1997) 25 EHRR 577, 593-595, paras 43-48.
68. In the cases under appeal these particular safeguards were present. The oath taken by the members of the court required them to well and truly try the accused "according to the evidence" and to do justice according to the relevant 1955 Act "without partiality, favour or affection". In addition the judge advocate gave the other members of the court-martial directions of the same kind as would have been given to a jury if the case had been tried in a civil court. There is no reason to suppose that the members of the court-martial would be any less faithful to their oath or any less diligent in applying the directions given by the judge advocate than would the members of a jury. Indeed it is at the very least arguable that the officers on a court-martial, as members of the armed forces for whom trust and obedience to commands are particularly important, would be even more likely than civilian jurors to be true to their oath and to follow the directions given to them.
69. In any event, the steps taken to ensure that the members of a court-martial act independently and impartially are, on one view, even more strict than with a jury. Although these additional steps were not fully explained to the European Court, they are in my view important and must be recorded at some length, even at the risk of repeating some of what has been said already about the procedure to be followed.
70. In the first place, the officers to serve on any court-martial are always taken from another unit, the aim being to ensure that they do not know the people involved or anything about the case. When they have been nominated and the court-martial has been convened, the prospective members are sent briefing notes along with a list of the witnesses for the prosecution. The members are told to examine the list and to tell the administration office if any of the witnesses is known to them. They are told that, if they subsequently discover that they do know someone, they should discreetly advise the judge advocate.
71. The briefing notes, which in certain respects reflect the provisions in Parts V and VI of the Rules, give an outline of the procedure that will be followed. Paragraph 2 emphasises the central role of the judge advocate by telling the members:
72. The notes go on to warn the members:
73. Paragraph 6 tells the members:
Paragraph 8 then advises them that:
This, again, is obviously designed to support the pivotal role of the judge advocate, while minimising any risk that the president may seek to influence the other members of the court.
74. Paragraph 9 is to this effect: