CASE OF G.W. v. THE UNITED KINGDOM
Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
Matti Pellonpää;Nicolas Bratza
9. The applicant was born in 1957 and lives in Portsmouth. In 1980 he joined the Royal Navy. 10. In or around early 1996, he was charged, pursuant to section 42 of the Naval Discipline Act 1957 (“the 1957 Act”), with three civilian offences (one under the Theft Act 1968 and two under the Forgery and Counterfeiting Act 1981). He was also charged, inter alia, on four counts of misapplication of public property contrary to section 30 of the 1957 Act. The charge sheet was signed by the convening authority, Rear Admiral N.E. Rankin (Flag Officer Portsmouth). 11. By convening order dated 1 February 1996, the convening authority acknowledged receipt of the “circumstantial letter” and ordered the convening of a court-martial for 26 February 1996 (see paragraph 21 below). He appointed the Prosecutor by name (of lower rank and in the convening authority’s chain of command). He also appointed the President of the court-martial and the other four members by name: all were subordinate in rank to the convening officer but were not in his chain of command. The Judge Advocate was also appointed by name by the convening authority and was not in the latter’s chain of command. 12. Advised that he could be represented by a civilian or naval lawyer, the applicant instructed a civilian lawyer, his current representative. 13. The court-martial took place on board HMS NELSON on 18 March 1996 and the applicant pleaded guilty to all charges. Having presented evidence in mitigation of sentence, he was sentenced, inter alia, to four months’ imprisonment, to be discharged from the navy and to stoppages of pay in the sum of 2,655 pounds sterling. 14. By letter dated 19 April 1996 the applicant was informed that his petition against sentence, which had been reviewed on behalf of the Admiralty Board by the Naval Secretary/Director General Naval Manning, had been rejected but that he could request that the petition be further considered by the Admiralty Board. He subsequently renewed his petition against sentence. On 17 May 1996 he was released from prison and by letter dated 7 June 1996 he was notified that his petition had been rejected. 15. The law and procedures in respect of naval courts-martial were contained in the Naval Discipline Act 1957 (“the 1957 Act”) and in certain statutory instruments made under the 1957 Act including the Naval Courts-Martial General Orders (Royal Navy) 1991 (“the 1991 Orders”). Following the Commission’s report in the case of Findlay v. the United Kingdom, certain provisions of the 1957 Act were amended by the Armed Forces Act 1996 (“the 1996 Act”) which Act came into force on 1 April 1997 (Findlay v. the United Kingdom, no. 22107/93, Commission’s report of 5 September 1995 and, see also, judgment in that case of 25 February 1997, Reports of Judgments and Decisions 1997-I). Sections A-G below concern the applicable law and practice prior to the entry into force of the 1996 Act. 16. Under section 42 of the 1957 Act “civilian” offences were also offences under the 1957 Act. Accordingly, even if the charge amounted to a civilian offence, in most cases naval personnel could be tried on that charge by the naval authorities under the 1957 Act. 17. At the material time a naval court-martial consisted of between 5-9 naval officers not below the rank of lieutenant, though the rank of the members might have been higher depending on the rank of the accused. Not all members belonged to the same ship or naval establishment and the captain and executive officer of the accused’s ship could not sit on the court-martial. 18. A President of the court-martial was appointed from the members. A Judge Advocate also took part in every naval court-martial. The Prosecutor could be a legally qualified naval officer or any other competent person. In exceptional cases, a civilian lawyer was appointed to act as Prosecutor. 19. An accused was allowed to engage, inter alia, an officer or civilian counsel (“the accused’s friend”) who advised the accused, examined the accused if he desired to give evidence, cross-examined witnesses for the prosecution and examined witnesses for the defence. If the accused wished to be represented by a civilian lawyer he could apply to the convening authority for approval of legal aid. 20. The convening authority was an officer authorised by the Defence Council to convene a court-martial. Appendix 5 to Volume II of the Manual of Naval Law (published by the naval authorities) gave a list of officers who could act as convening authority: Commander in Chief, Fleet; Commander in Chief, Naval Home Command; Flag Officer Plymouth; Flag Officer Scotland and Northern Ireland; Flag Officer Naval Aviation; Flag Officer Portsmouth; Flag Officer Surface Flotilla; Flag Officer Sea Training; Commander UK Task Force; and Commander British Forces Gibraltar. 21. An application for a court-martial to be held was generally made to the convening authority by the Commanding Officer by way of a “circumstantial letter”. This letter reported the circumstances upon which a charge was based in sufficient detail to show the real nature and extent of the offence. Any statement made by the accused in the course of inquiries, during investigation or after he was charged had to be forwarded in a separate document annexed to the letter. A charge sheet in the prescribed form, a list of witnesses for the prosecution, summaries of evidence of those witnesses and a list of exhibits which the Prosecutor proposed to put in evidence accompanied the letter. 22. Based on the material submitted, the convening authority decided on the charges to be retained against an accused and, if he was satisfied with the charge sheet accompanying the circumstantial letter, he could countersign the charge sheet. He also decided on the necessity to hold a court-martial on the charges retained. In this latter respect, the convening authority was guided by the principles issued by the Director of Public Prosecutions under section 10 of the Prosecution of Offences Act 1985 and was not to order the holding of a court-martial unless satisfied that the charges were correct, that the evidence was sufficient (namely, that there was a realistic prospect of a conviction) and that there was a “service interest” in trying the matter by court-martial. In convening the court-martial, the convening authority appointed the date, time and place for trial. 23. The convening authority appointed the President and other members of the court-martial. He also appointed, or directed an officer to appoint, a Judge Advocate and a Prosecutor. He ensured that the accused was properly assisted. In this latter respect, and unless the accused wished to represent himself or to instruct civilian counsel, the convening authority would nominate a competent naval officer to act as the accused’s friend. 24. The convening authority could, in exceptional circumstances, countermand the ordering of a court-martial before its commencement and dissolve a court-martial during the trial if circumstances arose which, in his opinion, rendered such action necessary (orders 13(2) and 28(2) of the 1991 Orders). 25. The Judge Advocate of the Fleet was appointed by the Queen on the recommendation of the Lord Chancellor and was removable on the same authority for inability or misbehaviour. He had to be a barrister or advocate of not less than ten years’ standing. He acted as legal advisor to the Admiralty Board on matters regarding the administration of justice under the 1957 Act. It was his duty to review all contested courts-martial whether the verdict was guilty or not guilty and, in particular, he advised that Board whether a court-martial had been properly conducted according to law and whether the conviction could stand, he gave a view on the sentence and he drew attention to any gross errors or irregularities. He also gave the Chief Naval Judge Advocate his view as to the manner in which the naval barristers had conducted themselves as Judge Advocate, Prosecutor and as the accused’s friend. As a result of the latter advice, “there may well be downstream actions issuing guidance either specifically or generally” (Manual of Naval Law, Appendix 5). 26. The Chief Naval Judge Advocate was a serving officer of the rank of captain of the Royal Navy and he was also a barrister. The Chief Naval Judge Advocate was assisted by a staff of serving naval officers who were barristers. His duties included assisting and consulting with the Judge Advocate of the Fleet, advising on the selection and appointment of naval barristers and sitting as Judge Advocate at naval courts-martial where the seriousness of the charges, the complexity of the trial, the rank of the accused or the interests of the Service so required. 27. In all other cases, a Judge Advocate was appointed to a court-martial from the staff of the Chief Naval Judge Advocate. 28. Before the trial the Judge Advocate appointed informed the convening authority of any defect in the constitution of the court-martial. He advised the court-martial, whether his opinion was requested or not, upon all questions of law and procedure which arose and the court-martial had to accept his advice unless there were weighty reasons for rejecting it, in which case those reasons had to be recorded. 29. The Judge Advocate had to ensure that the accused did not suffer any disadvantage during the hearing in consequence of, inter alia, the accused’s position, ignorance or incapacity to examine witnesses. Before the closing of the trial the Judge Advocate summed up the relevant law and evidence. The Judge Advocate was not present when the court considered its finding and, if during the court-martial’s deliberations on the charges further advice was required, the court-martial had to receive that advice in open court. The Judge Advocate advised the court-martial on sentence but not in open court. 30. The accused could object to any particular member of the court-martial and to its general constitution. If the objection to the President was upheld the court had to adjourn until another was appointed. If an objection to a member was upheld, another member could be appointed from the “spare members list” and, if an objection as to the constitution of the court-martial was upheld, the court-martial had to adjourn and report the matter to the convening authority. All members of the court and any other officers of the court-martial had to take a prescribed oath or affirmation (section 60 of the 1955 Act). The opinion of the President and of each member of the court-martial had to be given orally and on each charge separately, and their opinions had to be given in order of seniority commencing with the junior in rank. The vote of the majority determined sentence. 31. Before the court accepted a plea of guilty, the Judge Advocate had to ensure that the accused understood the charge to which he had pleaded and the different procedure which would result from that plea. The Prosecutor then read the circumstantial letter. Before the court proceeded to deliberate on sentence, the Prosecutor, whenever possible, called relevant witness evidence on information in the possession of the naval authorities as to the accused’s background and history which might have rendered the accused more likely to commit the offence, as to his service history and as to his previous convictions. The accused could also give evidence and call witnesses in mitigation. The court-martial had to take note of the accused’s naval record (for example, awards for gallantry). The members of the court-martial retired (with the Judge Advocate) to consider the sentence. The court-martial did not give reasons for its decision on sentence. 32. Having received the report of the finding and sentence, the convening authority took the necessary steps to give effect to the sentence (either by a committal order or otherwise) or he could order the suspension of the sentence pursuant to section 90 of the 1957 Act. Chapter 15 of the Manual of Naval law (Volume II) pointed out that before the convening authority gave effect to or suspended the sentence, he (or, inter alia, the Commander in Chief) had to satisfy himself so far as he was able, that no errors had been made in the conduct of the court-martial likely, in his opinion, to invalidate the finding of the court-martial. If he doubted the correctness of the finding, in fact or in law, or the legality of the sentence, he could not execute the sentence pending reference to the Defence Council. In such circumstances, the accused was retained in custody or the sentence was suspended under section 90 of the Act. 33. The convening authority (among other naval authorities) could at any time, and had to at intervals of not more than three months, reconsider any case of suspension and if on reconsideration it appeared that the conduct of the offender since his conviction had been such as to justify a remission of sentence, he had to remit the whole or any part of it (section 92 of the 1957 Act). 34. A certified transcript of the proceedings was completed and sent through the commander-in-chief or senior naval officer to the Defence Council. The Defence Council could, at any time, review a finding of guilt, any sentence awarded in respect of such a finding and any finding by a court-martial that a person was unfit to stand trial or was not guilty by reason of insanity. This had to be done by the Defence Council in the case of a court-martial as soon as practicable after the receipt of the record of proceedings (section 70(1) of the 1957 Act). 35. A convicted person could also petition the Defence Council against the findings or sentence or both (section 70(2) of the 1957 Act). Having reviewed the petition, the Defence Council could, inter alia, quash or alter findings, authorise a re-trial and annul, remit or alter sentences. However, those powers could be, and were normally, carried out by the Admiralty Board or by any officer so empowered by the Admiralty Board. Once an appeal was lodged with the Courts-Martial Appeal Court, the review functions of the Defence Council ceased. 36. The Courts-Martial Appeal Court (“CMAC”) was established by the Courts-Martial (Appeals) Act 1951 and was confirmed by the Courts-Martial (Appeals) Act 1968. The CMAC had the same status and, in essence, the same procedure as the Criminal Division of the Court of Appeal and considered appeals from courts-martial. The judges of this court included ordinary and ex officio judges of the Court of Appeal and such judges of the High Court as were nominated by the Lord Chief Justice. There was no provision for an appeal against sentence only, although certain powers of revising such sentences, pursuant to an appeal against conviction, were available to the CMAC. Once an application to the CMAC was received by the Registrar of the CMAC, the Defence Council’s duty to review ceases. 37. The changes to the naval court-martial system brought about by this Act are set out in the Court’s judgment in the case of Grieves v. the United Kingdom ([GC], no. 57067/00, §§ 16-62, ECHR 2003XII).