CASE OF MORRIS v. THE UNITED KINGDOM
Violation of Art. 6-1 with regard to general structure of court martial system;No violation of Art. 6-1 with regard to specific complaints;No violation of Art. 6-3-c;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
Nicolas Bratza
9. In September 1991, at the age of 16, the applicant became a member of the British Army, joining the Life Guards regiment of the Household Cavalry. In November 1992 the applicant was posted to the Household Cavalry Mounted Regiment (“the HCMR”) where he was taught to ride a horse. The applicant alleges that during riding lessons he became the target of bullying by other soldiers, including a lance-corporal. According to the applicant, towards the end of November 1992 the lance-corporal hit him on the side of the head with his fist, causing him to fall and strike his head on the ground. On 30 November 1992, several days after the attack, the applicant reported sick and told the medical officer that the injury to his face had been caused by falling off a horse. On 26 February 1993 the applicant, who alleges to have feared a further physical attack, went absent without leave. On 17 March 1993 he wrote to the commanding officer (“CO”) of the regiment (a lieutenant-colonel), stating, inter alia, that “[his] inability to express sufficient enthusiasm during training sometimes resulted in physical abuse by certain NCOs [non-commissioned officers]”, and asking to terminate his service. He received no reply to this letter. 10. The applicant was arrested by the civilian police on 16 October 1996 and taken to the HCMR's barracks at Hyde Park, London. The following day he was charged with being absent without leave contrary to section 38(a) of the Army Act 1955. On 18 October 1996 he was remanded in close arrest by Major Kelly, acting as subordinate CO. On the “Eight Day Delay Report” dated 24 October 1996, the reason for the detention is stated: “Likely to absent himself ... – has already offered bribe to JNCO on guard to release him.” On 31 October 1996 he appeared before the CO and was remanded by him in close arrest for an abstract of evidence. He was subsequently released by the CO into open arrest on 11 November 1996. The CO remanded him for trial by district court martial on 13 March 1997. 11. In a statement dated 4 November 1996 to the Ministry of Defence Police, the applicant stated that the attack by the lance-corporal had occurred in the week prior to his going absent without leave, while in a statement dated 29 January 1997 he stated that the attack occurred sometime in February 1993. The police found that the lance-corporal had left the army and took statements from other soldiers who had been on the same riding course as the applicant. They found that there was no evidence to support his complaint. The applicant subsequently signed a statement saying, inter alia: “I have come to the conclusion that I just want to get out of the army and get on with my life ... Even though this assault happened, I do not want the Ministry of Defence Police ... to take any further action concerning the incident.” 12. Following the applicant's remand for trial, the CO appointed Captain A. as “defending officer”. Captain A. was an army officer with no legal training, serving as a troop commander with the HCMR. The applicant applied to the Army Criminal Legal Aid Authority (“the Legal Aid Authority”) for legal aid to enable him to be represented by a solicitor. On the application form he stated that his weekly income after deduction of tax, rent and national insurance was 158.13 pounds sterling (GBP), and that he had no savings or other property of value. The form was countersigned by his CO. By a letter dated 26 March 1997, the Legal Aid Authority replied that a charge of absence without leave did not normally warrant legal representation but that either the CO or the applicant should write setting out his reasons if he considered that, exceptionally, legal aid should be granted. The applicant's solicitor wrote to the Legal Aid Authority on 18 April 1997 pointing out that the applicant faced a custodial sentence and needed to be represented. The Legal Aid Authority offered the applicant legal aid subject to a down-payment of GBP 240 in a letter dated 21 April 1997. The Government maintain that he could have paid in ten weekly instalments of GBP 24 each, but this is disputed by the applicant. On 30 April 1997 the applicant's solicitor wrote asking the Legal Aid Authority to reconsider the down-payment condition, but on 2 May 1997, before the Legal Aid Authority had replied, the applicant refused the offer of legal aid and was not, therefore, represented by a solicitor at the court martial. 13. Also on 2 May 1997, the applicant signed a document, addressed “to whom it may concern”, in which he made the following statement: “This is to certify that I, 25009734 Tpr Morris D of The Life Guards no longer wish to be represented at my pending District Court Martial other than by my Defending Officer, Captain [A.]. I have made this decision of my own free will. I understand that all previous correspondence with regard to my application for legal representation will now be ignored.” 14. The applicant's court martial took place at Chelsea Barracks on 28 May 1997. The court was composed as follows: a president, Lieutenant-Colonel A.D. Hall of the Corps of Royal Electrical and Mechanical Engineers, who was a permanent president of courts martial (appointed to his post in January 1997 and due to remain until his retirement in September 2001); Captain R. Reid of the Royal Army Medical Corps, Aldershot; Captain W.D. Perks of the Second Battalion, Royal Gloucestershire, Berkshire and Wiltshire Regiment (Volunteers), Reading; and a legally qualified civilian judge advocate (see paragraph 26 below). All three military officers were outside the command area in which the applicant was serving. The president worked from home when not attending court-martial hearings. 15. Captain A. represented the applicant, who pleaded guilty to the charge of being absent without leave between 25 February 1993 and 16 October 1996. The applicant's letter of 17 March 1993 to his CO was handed to the court, but no other mention was made of the bullying allegedly suffered by him. The applicant was sentenced to dismissal from the army and nine months' detention. 16. After the hearing, Captain A. erroneously advised the applicant that if he appealed against the sentence he risked the commencement date for his sentence being put back to the date of dismissal of the appeal. On 31 May 1997 the applicant instructed a solicitor to represent him. On 19 June 1997 the solicitor lodged a petition with the Defence Council in its role as the “reviewing authority” (see paragraph 29 below), relying on the facts that the applicant had had no legal representation before the court martial and that his allegations of assault were not presented to the court, either by way of a defence of duress (which applies when a person charged with a criminal offence can show that, at the relevant time, he reasonably believed that he would be killed or seriously injured if he did not commit the offence) or in mitigation of sentence. The petition asserted that it was unlikely that the defending officer understood that the applicant might have had a defence on the basis of duress and that the defending officer had indicated that he had been “ordered” not to allude to the allegations at the court martial without indicating who had so ordered him. It also mentioned instructions which the defending officer had given about what the applicant ought to do in the event that the court martial should, of its own volition, ask the applicant about the allegations which had been made. It also indicated that the defending officer had advised the applicant that, “if he appealed, his sentence might well be increased”. On the same day the petition was introduced, the solicitor wrote to Captain A. asking for his comments on it and reminding him that he was subject to the rules of client privilege and should not disclose details of his dealings with the applicant to any third party. Despite this, Captain A. provided a statement to the Defence Council, in which he said, inter alia: “As [the applicant's] Troop Leader I was asked to represent him at Court Martial, this was the first Court Martial I have attended in any capacity. Although I have had experience in civil cases at both Magistrates' and Crown Courts. ... [The applicant] had indicated to me that he had gone absent from the Army for more than one reason. As expressed in his letter of 17 March 1993. He was showing reservations about his enthusiasm, commitment and devotion to duty. ... [T]he petition states that I assumed the petitioner had no choice but to plead guilty, as he had been Absent Without Leave. I was unaware that he could have entered a plea of not guilty to the charge on the basis of duress. [The applicant] and I did not discuss the allegations of bullying in any great detail. This was because these allegations had been withdrawn by him under interview by MOD Police. [The applicant] indicated to me that he wanted to drop all the references to the violence by the NCO during his training. This was in order that the trial date would be set significantly earlier and that the trial would be substantially shorter. This led me to advise [the applicant] to plead guilty as charged, as I had felt that this gave him his best opportunity to be discharged from the Army at the earliest date which was, after all, his overall aim. ... I discussed with the Adjutant my role as the Defending Officer. We talked about the procedural steps of the court martial and my conduct leading up to the trial. It was confirmed to me that a guilty plea would produce an earlier trial date than that of not guilty. I advised [the applicant] that references to his allegations of bullying could prolong and complicate his court martial. The mention of bullying would be introduced as part of his letter to his commanding officer dated 17 March 1993, which he agreed could be put forward for the court as mitigation. [The applicant] agreed that he did not wish to answer questions about his previous allegations, which he had dropped. I therefore advised him to refer such questions to me and I would state to the court that this was an avenue down which he did not wish to proceed. ...” 17. The petition was refused by the reviewing authority on 14 July 1997, in the following terms: “The Reviewing Authority has considered the petition submitted by your above-named client, and has denied it for the following reasons. The down payment for Legal Aid was carefully calculated, and was well in line with the amount the petitioner would have had to pay under the civil system. The certificate signed by him shows clearly that he had decided not to proceed with his application for legal representation. We cannot accept that [the applicant] was in any way forced to accept this decision. He also appears to have been content to accept Captain [A.] as his defending officer. The complaints about the petitioner being bullied were investigated by the SIB and the allegations could not be substantiated. Indeed it came to light during this investigation that the petitioner had told [another soldier] that he planned to go absent because he was merely tired of the training and the long hours being worked. In view of the SIB report, the Reviewing Authority must accept that the allegation that the petitioner was subjected to violence by a Non-Commissioned Officer cannot be substantiated, and cannot be regarded as a mitigating factor. In considering your complaint that, had the petitioner been advised by a qualified solicitor, he would have been able to plead not guilty on the basis of duress, we had to rely on the advice given by the Judge Advocate General. He stated that a person is subject to duress when words or conduct from another person cause him to fear that he will be killed or seriously injured, if he does not commit the offence. Clearly, the petitioner could never have reasonably believed that he had cause to fear that he would be killed or seriously injured. The Reviewing Authority notes that the petitioner had dropped his allegations of being subjected to violence by the time he appeared in Court. All Captain [A.] intended to do was to inform the Court that the petitioner did not wish to proceed with these allegations. In fact the Court was made aware of them because the letter from (sic) the Commanding Officer was read out to them. We accept that Captain [A.] was mistaken in referring the petitioner to the booklet 'Appeals and Petitions after conviction by Army Court Martial', which was out of date after 1 April 1997. In addition the wrong paragraph was used in his advice to the petitioner. However as we have now received a petition, in spite of this mistaken advice, we believe that no harm has been done. ...” 18. On 26 July 1997 the applicant lodged an application for leave to appeal against conviction and sentence to the Courts-Martial Appeal Court. Leave to appeal was refused by the single judge on 22 October 1997, on the grounds that the defence of duress had not been open to the applicant, that he had been properly advised to plead guilty, and that the sentence was not manifestly excessive. 19. The Armed Forces Act 1996 (“the 1996 Act”) came into effect on 1 April 1997, amending the Armed Forces Act 1955 (“the 1955 Act”). 20. Under the 1996 Act, the initial decision whether or not to bring a prosecution is taken by the higher authority, who is a senior officer who must decide whether any case referred to him by the accused's commanding officer should be dealt with summarily, referred to the prosecuting authority, or dropped. Once the higher authority has taken this decision, he has no further involvement in the case. 21. Where the accused is a member of the army, the role of prosecutor is performed by the Army Prosecuting Authority (“the prosecuting authority”). Following the higher authority's decision to refer a case to it, the prosecuting authority has absolute discretion, applying similar criteria as those applied in civilian cases by the Crown Prosecution Service, to decide whether or not to prosecute, what type of court martial would be appropriate and precisely what charges should be brought. In addition, it conducts the prosecution (1996 Act, Schedule I, Part II). The prosecution is brought on behalf of the Attorney-General. The current prosecuting authority is the Director of Army Legal Services. In his role as prosecuting authority, the Director of Army Legal Services is answerable to the Attorney-General, while in his coexisting role as the army's senior lawyer he is answerable to the Adjutant General (the army's principal personnel and training officer, responsible, inter alia, for army disciplinary policy and a member of the Army Board). In pursuit of his latter role, the Director of Army Legal Services provides some military legal advice to the army chain of command. He does not advise the disciplinary chain of command of the army, this role being reserved to the Brigadier Advisory. 22. The Army Criminal Legal Aid Authority is also the responsibility of the Adjutant General. 23. The Court-Martial Administration Office (now the Army Court Service), independent of both the higher authority and the prosecuting authority, is responsible for making the arrangements for courts martial, including arranging venue and timing, ensuring that a judge advocate and any court officials required will be available, securing the attendance of witnesses and selecting members of the court. Its officers are appointed by the Defence Council. Before commencement of the court-martial hearing, the power to dissolve it is vested in the responsible court-administration officer. Until early 2001 the person in charge of the Court-Martial Administration Office was a retired officer. The Army Court Service was then created in its place, the head of which is now a serving brigadier. 24. At the relevant time, a district court martial (“DCM”) was required to consist of a permanent president of courts martial, not less than two serving military officers of at least two years' military experience and a judge advocate (section 84D of the 1955 Act as amended by the 1996 Act). The court-administration officer, commanding officers of the accused, members of the higher authority, investigating officers and all other officers involved in inquiring into the charges concerned were all barred from selection to the court martial (section 84C(4) of the 1955 Act as amended by the 1996 Act). The Courts Martial (Army) Rules 1997 further provide that an officer serving under the command of: (i) the higher authority referring the case; (ii) the prosecuting authority; or (iii) the court-administration officer are ineligible for selection. The Queen's Regulations provide that a court martial is, so far as practicable, to be composed of officers from different units. 25. The post of permanent president of courts martial (“the permanent president”) was first created in 1941. Permanent presidents were routinely appointed thereafter to sit on DCMs whenever one was available until suspension of the post in 2000, around the time of a ruling by Assistant Judge Advocate Pearson on 6 March 2000 in McKendry (see paragraph 31 below) that the appointment of permanent presidents meant that courts martial did not have the necessary impartiality and independence for the purposes of Article 6 of the Convention. Permanent presidents were selected from the ranks of serving army officers of suitable age and rank. Until around the end of 1996, permanent presidents of courts martial held the rank of major. Thereafter their rank was raised to lieutenant-colonel, which resulted in permanent presidents routinely outranking the other serving officers on a DCM, who were never above the rank of major. Legal qualifications or experience were not required. Their appointment was usually expected to be for a period in excess of three years and was almost without exception the officer's last posting before his retirement from the army. The Military Secretary (a senior subordinate of the Adjutant General) had power to terminate the appointment of a permanent president, but this has never happened in practice. 26. Judge advocates are appointed by the Lord Chancellor and are civilians who must have at least seven years' experience as an advocate or five years' experience as a barrister. A judge advocate's rulings on points of law are binding on the court and he delivers a summing-up in open court before the court martial retires to consider its verdict. Once the court martial hearing has commenced, the power to dissolve it is vested in the judge advocate. He has a vote on sentence, but not on verdict. Under the 1996 Act, the Judge Advocate General lost his previous role of providing general legal advice to the Secretary of State for Defence (Schedule I, Part III, sections 19, 25 and 27). 27. Each member of a court martial has to swear the following oath: “I swear by Almighty God that I will well and truly try the accused before the court according to the evidence, and that I will duly administer justice according to the Army Act 1955 without partiality, favour or affection, and I do further swear that I will not on any account at any time whatsoever disclose or discover the vote or opinion of the president or any member of this court martial, unless thereunto required in the due course of law.” 28. Decisions on verdict and sentence are reached by majority vote (section 96 of the 1955 Act). The casting vote on sentence, if needed, rests with the president of the court martial, who also gives reasons for the sentence in open court. The members of the court are required to speak, and at the close of deliberations to vote on verdict and sentence, in ascending order of seniority. 29. All guilty verdicts reached and sentences imposed by a court martial must be reviewed by the “reviewing authority” (section 113 of the 1955 Act as amended by the 1996 Act). Although the ultimate responsibility rests with the Defence Council, the review is as a matter of practice generally delegated to a senior subordinate of the Adjutant General. Post-trial advice received by the reviewing authority from a judge advocate (different from the one who officiated at the court martial) is disclosed to the accused, who has the right to present a petition to the authority. The reviewing authority may quash any guilty verdict and associated sentence or make any finding of guilt which could have been made by the court martial, and may substitute any sentence (not being, in the authority's opinion, more severe than that originally passed) which was open to the court martial (section 113AA of the 1955 Act as amended by the 1996 Act). The reviewing authority gives a reasoned decision and its verdict and sentence are treated for all purposes as if they were reached or imposed by the court martial. 30. There is a right of appeal against both conviction and sentence to the Courts-Martial Appeal Court (a civilian court of appeal) (section 8 of the Courts-Martial (Appeals) Act 1968). An appeal will be allowed where the court finds that the conviction is unsafe, but dismissed in all other cases. The court has power, inter alia, to call for the production of evidence and witnesses whether or not produced at the court martial (section 28 of the Courts-Martial (Appeals) Act 1968). 31. The role of permanent president was examined by the Courts-Martial Appeal Court (which has the same composition as the civilian Court of Appeal) in R. v. Spear and another and in R. v. Boyd ([2001] Court of Appeal, Criminal Division (England and Wales) 2). The court dismissed the appellants' complaint that the position of permanent presidents on courts martial violated Article 6 § 1 of the Convention because permanent presidents lacked the necessary independence and impartiality. The court declined to follow the reasoning of Assistant Judge Advocate Pearson in McKendry. Lord Justice Laws, delivering the judgment of the court, said: “24. Mr Mackenzie of course relies on the decision of Assistant Judge Advocate General Pearson in McKendry. His judgment was given as we have said on 6 March 2000, by way of a ruling in a then current court martial upon objections raised on behalf of the defence to the PPCM [Permanent President] sitting as a member of the court. The judge advocate's essential reasoning appears at pp. 8-9 of the transcript, after he had correctly directed himself as to the Article 6 standards to be applied (the numbering attached to the judge advocate general's text is ours, not his): '1. I am concerned as to the terms of appointment of these Permanent Presidents. It seems to me that there is no fixed time limit other than a time which may be quite short – two, three or four years; certainly two years is probably too short to ensure full independence, four years may be suitable – I express no comment on that. 2. I am concerned as to their training. This reference to their visiting the APA [Army Prosecuting Authority], I suspect that is mistyping, nevertheless it is there in their current job description and I must be concerned with the perception of bias, and it does not look appropriate, in my view, for Permanent Presidents to be told they should attend a briefing from the Prosecuting Authority. 3. I am concerned obviously with their potential removal. Clearly anybody exercising judicial or quasi-judicial functions should be free from arbitrary removal, and there should be some sort of guarantee that the removal would only be on the basis of some sort of misconduct within that particular office. There is no security, therefore, it would seem to me, that applies to Permanent Presidents at the present time in their role. 4. I am also obviously concerned with the question of reporting, whether it be annual – which I doubt; it is more likely to be every two years, or perhaps on the renewal of their appointment – I cannot say, but certainly there is some reporting that appears to take place, and it seems to me again that is a significant difficulty which affects the perception of independence. Now, I have specified those three [in fact, four] as being the main concerns that I have ... those particular concerns are sufficient in my view for me to rule that in the particular circumstances of the system as it now stands, the appointments of Permanent Presidents do not give rise to an independent and impartial tribunal.' The judge advocate was at pains to insist that his ruling was 'limited to this particular case'; but its reasoning plainly applies at least to all DCMs presided over by a PPCM. 25. Mr Mackenzie sought to build on the reasoning in McKendry with a series of further points ... In particular, he submitted that (a) there were no objective regulatory provisions governing the PPCM's appointment, beyond the ordinary procedures for staff appointments; (b) 'the medium rank of PPCM prevents such officers from being immune from general Army influence' ...; (c) the PPCM is senior in rank to the other officers on the court martial ..., and would be likely to exert a substantial influence over them. 26. It is convenient to deal with this last point first. In McKendry the judge advocate stated at 6C-D (referring to junior members of a DCM): 'Speaking for myself, having of course sat in on many, many sentencing matters with Permanent Presidents, I can say that I have found that the junior members ... the fact that they happen to be junior in rank, has not prevented them from being very robust in their sentencing arguments.' As judge advocate he would not, of course, have participated in the court's deliberations upon conviction. It is to be noted that by paragraph 70(4) of the Court Martial (Army) Rules 1997 the junior officer is required to speak first in the course of any court martial's deliberations. The provision is plainly intended to ensure that junior members' genuine opinions are put forward. 27. Upon this point, Mr Mackenzie's argument does not go to the particular position of the PPCM at all, but rather to the differences in rank among the members of the court martial, whether the president is a PPCM or not. As such we doubt whether it is open to him. But we are clear in any event that there is no merit in it. If the argument were right, it would presumably mean that Article 6(1) required that the members of a court martial should be officers of the same rank. That cannot be the law. The notion, were it accepted, that it is reasonable to fear that between joint decision-makers of different rank there is a systematic likelihood that the more junior may be unduly influenced by the perceived views of the more senior would, surely, be an unlooked for and unwelcome side-effect of the Convention's beneficent regime. We consider it perfectly reasonable to suppose that junior officers would regard it as their duty to speak with their own voice, and that the modern culture of the Service would promote that very point of view. We do not think it would be reasonable for the accused soldier to entertain any different perception. This point is a bad one. 28. The argument as to the PPCM's medium rank and 'general Army influence' falls to be disposed of in like manner. But there is another point to be made. The way this argument is formulated – 'the medium rank of PPCM prevents such officers from being immune from general Army influence' – amounts, looked at rigorously, to an allegation of actual bias (whether unconscious or not). It is not, or not only, a matter of the appearance of the thing or of the presence or absence of objective guarantees. It is a delicate way of saying that such medium-ranking officers are relatively prone to take a prosecution line. That is quite a serious allegation, for which there is not a whisper of any supporting evidence. And in our view it is simply patronising to suggest that an officer in the rank of Lieutenant-Colonel ... will have his judgment on the concrete facts of a particular case affected by anything so amorphous as 'general Army influence'. 29. In our judgment Mr Mackenzie's further submission about the absence of any specific regulatory provision goes nowhere, unless it supports an argument to the effect that the PPCMs lack sufficient tenure in office for this court to be satisfied that the Article 6 requirements of independence and impartiality are met. ... 30. ... we should dispose of point (2) in McKendry. This rested in the judge advocate's understanding that Army PPCMs were required, as a training exercise, to visit and be briefed by the Army Prosecuting Authority. In fact the judge advocate himself reported (4E) the assurance given to him that no such visits took place. Lt Col Stone states in terms that he has never visited the APA. From the judge advocate's reasoning in McKendry it looks as if there must have been some rogue document or documents in circulation; but there is obviously nothing of substance in the point.” 32. Lord Justice Laws concluded as follows on the appellants' complaint about the position of permanent presidents (at paragraph 33): “... We consider that the conditions upon which PPCMs have been appointed, and held office, have involved no violation of Article 6(1), and in particular there was no violation on the facts of these cases. We should first collect the facts which have weighed with us. (1) The PPCMs effectively operated outside the ordinary chain of command. They advisedly lived their professional lives largely in isolation from their Service colleagues. (2) While Mr Havers rightly accepted that there was no 'written guarantee' against removal, there is in fact no record of a PPCM ever having been removed from that position. Removal from office, we may readily infer, would only take place in highly exceptional circumstances which have never eventuated. (3) The appointment was the officer's last posting, offering no prospect of promotion or preferment thereafter. Neither of the PPCMs in these cases entertained any such prospect, hope or expectation. ... (4) The term of these PPCMs' appointments was for no less than four years ... (5) There have been no reports on Army PPCMs since April 1997. ...” 33. In R. v. Généreux ([1992] 1 Supreme Court Reports 259), the Supreme Court of Canada examined, inter alia, the compatibility of a Canadian general court martial with section 11(d) of the Canadian Charter of Rights and Freedoms, which provides: “11. Any person charged with an offence has the right ... (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.” 34. A general court martial consisted of between five and nine voting members, who were joined by a judge advocate who was called upon to determine questions of law or mixed law and fact during the trial. The judge advocate was appointed to the general court martial by the Judge Advocate General on an ad hoc basis. 35. The Supreme Court concluded that the judge advocate did not possess sufficient security of tenure to satisfy the requirement of “independence” under section 11(d) of the Charter. Lamer CJ, delivering the leading judgment of the court, commented as follows: “... the judge advocate was appointed solely on a case by case basis. As a result, there was no objective guarantee that his or her career as a military judge would not be affected by decisions tending in favour of the accused rather than the prosecution. A reasonable person might well have entertained an apprehension that a legal officer's occupation as a military judge would be affected by his or her performance in earlier cases ... [or] that the person chosen as judge advocate had been selected because he or she had satisfied the interests of the executive, or at least has not seriously disappointed the executive's expectations, in previous proceedings. ... Military judges who act periodically as judge advocates must therefore have a tenure that is beyond the interference of the executive for a fixed period of time.” He went on to note that amendments to Canadian court-martial procedures, which had come into force subsequent to the proceedings at issue in the case, had corrected deficiencies in the judge advocate's security of tenure, providing for appointment for a period of between two and four years.