CASE OF HOOD v. THE UNITED KINGDOM
Violation of Art. 5-3;No violation of Art. 5-4;Violation of Art. 5-5;Not necessary to examine Art. 13;Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
John Freeland;Luzius Wildhaber;Nicolas Bratza;Paul Mahoney
7. The applicant, David Hood, is a British national born in 1970. He resides in the United Kingdom. At the relevant time, he was a soldier with the regular forces of the British army. 8. Prior to the events in question, the applicant went absent without leave from his unit in Germany three times. Prior to his third absence, he had been remanded for trial by court martial on an assault charge (later abandoned), he remained absent for almost two and a half years and he gave himself up to the civilian police in December 1993. 9. On 11 May 1994 the applicant did not return after two weeks’ leave (his fourth absence without leave). On 27 November 1994 he was arrested at his home by the civilian police and on 28 November 1994 he was taken by army escort to Brompton Barracks. Before the Court, the parties disputed whether the applicant was then brought before his commanding officer on 29 November 1994 pursuant to Rule 4 of the Rules of Procedure (Army) 1972 (see paragraph 29 below). 10. The applicant remained in close arrest until his court martial. He was detained in a cell in a guardroom under the supervision of a guard apart from certain occasions when he was taken to hospital for psychiatric care. 11. In or about December 1994 the applicant was informed that he would have to appear before the unit adjutant after Christmas. He retained a solicitor prior to Christmas, who advised him until 17 January 1995. On 4 January 1995 the applicant appeared before the unit adjutant and was given the abstract of evidence. He was told that he should read the abstract and check that it was accurate. The applicant was cautioned pursuant to Rule 10 of the Rules of Procedure (Army) 1972 (see paragraph 32 below). 12. Acting on his original solicitor’s advice, the applicant prepared his own statement and obtained a statement from his girlfriend, which statements were completed on 4 and 19 January 1995 respectively. The applicant submitted both statements to the adjutant on 20 January 1995, which statements were then attached to the abstract of evidence. The applicant was then remanded for trial by court martial by his commanding officer and he applied for legal aid from the military authorities. The charge sheet, dated 25 January 1995 and signed by his commanding officer and on behalf of the convening officer, recorded two charges of absence without leave and two of desertion contrary to the Army Act 1955. 13. Although the applicant instructed his present solicitor in early February, the latter did not commence work for the applicant until legal aid was granted by the Ministry of Defence by letter dated 14 February 1995. 14. By notice dated 17 March 1995 a district court martial was convened to try the applicant on the charges. The court martial took place on 3 and 4 April 1995. The assistant prosecuting officer was the unit adjutant. The applicant, who was legally represented, pleaded not guilty. 15. During the court-martial hearing, the applicant’s solicitor challenged (under section 78 of the Police and Criminal Evidence Act 1984) the admission into evidence of the statements of the applicant and his girlfriend. The judge advocate (having heard evidence from the unit adjutant and the applicant’s representative) found that Rule 10 of the Rules of Procedure (Army) 1972 had been followed. Given the applicant’s legal representation at the relevant time and the procedures followed, the judge advocate could not see “how a fairer situation could have arisen” and, accordingly, he rejected the applicant’s challenge. The judge advocate also clarified during the court martial that “we can take it as an agreed fact that the adjutant or the assistant adjutant will either be the prosecuting or assistant prosecuting officer in any court martial”. The applicant was convicted on the two charges of absence without leave and on one of the charges of desertion, and the remaining charge of desertion was reduced to one of “absent without leave”. He was sentenced to be imprisoned for eight months and to be dismissed from the service, the sentence expressly taking account of the period of close arrest immediately preceding the court martial. 16. After confirmation and promulgation of the conviction and sentence, the applicant petitioned the Army. By letter dated 13 July 1995 the applicant was informed that his petition to the Army Board had been rejected. His leave application to the single judge of the Courts-Martial Appeal Court was rejected on 13 September 1995 and his further appeal to the full Courts-Martial Appeal Court was also refused on 18 March 1996. 17. The seventy-second day of the applicant’s detention fell on or around 7 February 1995. Accordingly, and pursuant to Rule 6 of the Rules of Procedure (Army) 1972 and paragraph 6.045(c) of the Queen’s Regulations (see paragraphs 31 and 38 below), a direction from the convening officer was completed on 3 February 1995 attaching an authorisation from the Commander in Chief, the latter of whom directed the applicant’s continued detention “to prevent him absconding” before trial (“the delay report”). 18. Having requested a copy of the delay report and informed the authorities of his intention to apply for a writ of habeas corpus, the applicant’s solicitor issued those proceedings on 17 February 1995 challenging mainly the regularity of the delay report. That report was received by the applicant’s solicitor on 20 February 1995, following which further submissions were made to the High Court. 19. On 21 February 1995 the High Court rejected the application. The court found, inter alia, that the delay report had been properly completed in a timely fashion. It noted that the expressed reason for the applicant’s continued detention was to prevent his absconding and found that “perfectly understandable” given the charges against him. 20. At the relevant time the provisions governing the detention and trial of members of the army were contained in the Army Act 1955 (“the 1955 Act”), in the Rules of Procedure (Army) 1972 (“the 1972 Rules”) and in the Queen’s Regulations for the Army 1975 (“the Queen’s Regulations”). 21. Since the applicant’s court martial, the law has been amended by, inter alia, the Armed Forces Act 1996 (see the Findlay v. the United Kingdom judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I, p. 276, §§ 52-57) and by the Investigation and Summary Dealing (Army) Regulations 1997 (“the 1997 Regulations”). The provisions detailed below are those applicable at the time of the applicant’s arrest, detention and court martial. 22. A warrant for the arrest of a person subject to military law and considered to have deserted or to be absent without leave may be issued by the commanding officer and any such warrant must be addressed to the civilian police. A person arrested pursuant to that warrant must be handed over as soon as is practicable to the military (section 190A of the 1955 Act). 23. The relevant rules vary depending on whether the accused is a non-commissioned officer or soldier or, on the other hand, an officer or warrant officer. In the former case (described below), the commanding officer’s powers are generally broader as regards the investigation and pursuit of charges against an accused. 24. Desertion and absence without leave constitute offences under the 1955 Act. The punishment for the offence of desertion is imprisonment for an unlimited term (subject to the sentencing power of the court martial in question) and that for absence without leave is imprisonment for a maximum of two years. 25. Section 75 of the 1955 Act provides that the allegations against a person subject to military law who is under arrest shall be duly investigated without unnecessary delay and that as soon as may be, either proceedings shall be taken for punishing the offence or he shall be released from arrest. In addition, should that detention last longer than eight days without a court martial being convened, a report (a “delay report”) on the necessity for further delay shall be made by the person’s commanding officer to the prescribed authority in the prescribed manner and a similar report shall be made to the same authority and in the same manner every eight days until a court martial is assembled or the offence is dealt with summarily or the accused is released from detention. 26. Any allegation that the person subject to military law has committed an offence under the 1955 Act must be reported in the form of a charge to that person’s commanding officer and, before any action is taken, the commanding officer must investigate the charge (section 76). 27. After investigation, a charge (which cannot be dealt with summarily) may be dismissed by a commanding officer if he is of the opinion that it ought not to be proceeded with. Moreover, if it appears to the commanding officer that proceedings in respect of the matters to which the charge relates could be, and in the interests of the better administration of justice ought to be, taken against the accused otherwise than under the 1955 Act, the commanding officer may stay further proceedings (sections 77 and 77A). 28. If the commanding officer has not stayed the charge and if the charge is not one which can be dealt with summarily and it has not been dismissed or if it is a charge which can be dealt with summarily but the commanding officer is of the opinion that it should not be so dealt with, he shall take the “prescribed steps” with a view to the charge being tried by court martial (section 78(1) and (2)). Dealing summarily with a charge includes taking evidence, reducing it to writing, deciding as to the guilt or innocence of the accused and rendering sentence (section 78(3)). However, where the commanding officer has taken steps to have the charge tried by court martial, any higher authority to whom the case is forwarded may refer the charge back to the commanding officer to be tried summarily if the charge is one that can be dealt with summarily (section 78(6)) or with a direction to dismiss the charge or to stay all further proceedings therein. 29. Rule 4 of the 1972 Rules provides that when a person is detained by a military authority, his commanding officer shall, unless it is impracticable, within forty-eight hours of becoming aware that he is so detained have such person brought before him, inform him of the charge against him and begin to investigate it. If the investigation has not begun within the forty-eight hours, the commanding officer must report the case to a higher authority together with the reasons for the delay in commencing the investigation (Rule 4(2)). 30. The report to which section 75 of the 1955 Act refers shall be signed by the commanding officer of the person detained and shall be sent to the person who would be responsible for convening the court martial (Rule 5). According to Schedule 1 to the 1972 Rules the report must, inter alia, specify whether the accused is in close or open arrest, the reasons for his detention, certain details about the progress of the investigations and of the preparation for trial together with the reasons for the delay since the last report. 31. The accused shall not be held in arrest for more than seventy-two consecutive days without a court martial having been convened unless the convening officer directs in writing, citing reasons, that the accused shall not be released from detention (Rule 6). 32. Rule 10(1) provides that an abstract of evidence shall be made by the commanding officer or by another officer on the direction of the commanding officer. The accused shall not be present while the abstract of evidence is being made and it shall consist of a signed statement by, or a précis of the evidence of, each witness whose evidence is necessary to prove the charge. Once compiled, the accused is given (normally by the officer who compiled the abstract) a copy and the accused is cautioned as follows: “This is a copy of the abstract of evidence in your case; you are not obliged to say anything with regard to it unless you wish to do so, but you should read it and, when you have read it, if you wish to say anything, what you say will be taken down in writing and may be given in evidence.” (Rule 10(2) of the 1972 Rules) 33. Statements submitted by the accused (including those of witnesses which he wishes to be included in the abstract) shall be attached to the abstract of evidence and shall thereafter form part of it (Rule 10(4)). The pamphlet entitled “Rights of a Soldier” (which is given to accused persons and which is available in the cells in the guardroom) describes the purpose of the extract of evidence as, inter alia, to “provide a brief for the prosecutor at trial” and to inform the accused of the evidence which will be given at trial. 34. The prescribed steps to be taken by a commanding officer for sending a case for trial by court martial include, in accordance with Rule 13, sending to higher authority a draft charge sheet (signed by the commanding officer), the abstract of evidence, a statement of character together with the service record of the accused and a recommendation as to how the charge should be proceeded with (for example, by district or general court martial). It is the convening officer who finally decides on the charges to be retained against an accused and he generally does so by countersigning the draft charge sheet submitted by the commanding officer. 35. Paragraph 6.005 of the Queen's Regulations states that the mere allegation that a person subject to military law has committed an offence does not, of itself, necessarily warrant placing that person under arrest of any description. If the offence is trivial, the offender is to be informed of the charge and required to report to the unit orderly room at a specific date and time. If arrest is necessary, the category of arrest is to be determined in the interests of the service and by the nature of the alleged offence. Generally, a person is to be placed under close arrest only when confinement is necessary to ensure his safe custody or to maintain discipline. 36. The circumstances which would warrant placing an accused under close arrest include those where the accused is deliberately trying to undermine discipline, is likely to injure himself or others or is likely to suborn witnesses; where he has not surrendered but has been apprehended as an illegal absentee or has habitually absented himself; and where, having regard to the nature or prevalence of the alleged offence which is under investigation, it is undesirable in the interests of discipline that he should be at large or allowed to consort with his comrades (also paragraph 6.005). 37. Paragraph 6.007 provides that (subject to, inter alia, the general principle that the accused is not to be unnecessarily held under arrest) commanding officers are responsible for ensuring that in each case the need to keep an accused under arrest, together with the form of that arrest, is kept under constant review. As necessary, the form of arrest may be changed or the accused released. 38. Paragraph 6.045(c) provides that the person into whose custody the accused is committed is to inform the accused of the rank, name and unit of the person by whom he is alleged to have committed the offence and the nature of the allegation. Paragraph 6.047 provides that a charge preferred against an officer or soldier is to be dealt with at the earliest opportunity. Accordingly, it is provided, inter alia, that on the receipt of every delay report the convening officer is to satisfy himself (if the accused is in detention) as to the necessity of the ongoing detention (subsections (a) and (b)). On receipt of the fourth delay report, or, in any event, after forty days’ detention, the convening officer is to make a special report to his/her superior officer outlining the reasons for the delay, when it is expected the accused will be brought to trial and the reasons for the continued detention (subsection (c)). If an accused is not brought to trial by the seventy-second day, the latter superior officer must, in turn, make a special report to the Commander in Chief by that day (subsection (d)). On receipt of such special reports, the superior officer and Commander in Chief mentioned are to take all practical steps to expedite the trial of the accused (subsection (e)). 39. Where an accused has been in detention for seventy-two consecutive days without a court martial being convened, a direction in accordance with Rule 6 of the 1972 Rules not to release the accused can only be given with the prior approval of the Commander in Chief. This report is to contain the reasons for the delay, when it is expected the accused will be brought to trial and the reasons for the continued detention (paragraph 6.047(f)). Delay reports are not, as a rule, copied to the accused or his representative. 40. Habeas corpus is a procedure whereby a detained person may make an urgent application for release from custody on the basis that his detention is unlawful. Jurisdiction is normally exercised by the Divisional Court of the Queen’s Bench Division of the High Court and habeas corpus is available to persons in military custody (R. v. Royal Army Service Corp. Colchester, ex parte Elliott [1949] 1 All England Law Reports at p. 373). 41. The scope of this review will depend on the context of the particular case and, where appropriate, the terms of the relevant statute under which the power of detention is exercised. However, the court will examine the legal validity of an accused’s detention and whether there is sufficient evidence to detain him, and, if the power to detain depends on the prior establishment of an objective fact, the court will decide whether that fact exists (Khawaja v. Secretary of State for the Home Department [1984] Appeal Cases at p. 74). 42. Legal aid is not available from the military authorities for applications to the civilian courts, including applications for writs of habeas corpus. However, legal aid from the civilian authorities is available for such proceedings. A person will not be granted representation for the purposes of any such proceedings unless it is considered that there are reasonable grounds for taking, defending or being a party to proceedings (section 15(2) of the Legal Aid Act 1988). Such an application for legal aid will only be approved after all the questions of fact or law arising in the action, cause or matter to which the application relates, and all the circumstances in which the application was made, have been considered (Civil Legal Aid (General) Regulations 1989). 43. An application for an emergency legal aid certificate can be made pursuant to the Civil Legal Aid (General) Regulations 1989. The information furnished must be such as to allow the area director to decide the nature of the relevant proceedings, the circumstances in which it is required, whether the application is likely to fulfil the conditions under which legal aid may be granted and whether it is in the interests of justice that the applicant should as a matter of urgency be granted legal aid. 44. The relevant provisions of the 1955 Act relating to general courts martial are set out in the above-mentioned Findlay judgment (at pp. 272-75, §§ 32-51). These provisions (summarised at paragraph 45 below) apply equally to a district court martial with certain relevant differences. A district court martial comprises a president and a minimum of two other officers and the minimum rank of those members is lower than for a general court martial. 45. Central to the court-martial system under the 1955 Act was the role of the “convening officer”. This officer (who had to be of a specified rank and in command of a body of the regular forces or of the command within which the person to be tried was serving) assumed responsibility for every case to be tried by court martial. That officer had the final decision on the nature and detail of the charges to be brought and the type of court martial required, and was responsible for convening the court martial. The convening officer would draw up a convening order, which would specify, inter alia, the date, place and time of the trial, the name of the president and the details of the other members, all of whom he could appoint. Failing the appointment of a judge advocate by the Judge Advocate General’s Office, the convening officer could appoint one. He also appointed, or directed a commanding officer to appoint, the prosecuting officer. Prior to the hearing, the convening officer was responsible for sending an abstract of the evidence to the prosecuting officer and to the judge advocate, and could indicate the passages which might be inadmissible. He procured the attendance at trial of all witnesses to be called for the prosecution. When charges were withdrawn, the convening officer’s consent was normally obtained, although it was not necessary in all cases, and a plea to a lesser charge could not be accepted from the accused without it. He had also to ensure that the accused had a proper opportunity to prepare his defence, legal representation if required and the opportunity to contact the defence witnesses, and was responsible for ordering the attendance at the hearing of all witnesses “reasonably requested” by the defence. The convening officer could dissolve the court martial either before or during the trial, when required in the interests of the administration of justice. In addition, he could comment on the proceedings of a court martial. Those remarks would not form part of the record of the proceedings and would normally be communicated in a separate minute to the members of the court, although in an exceptional case, where a more public instruction was required in the interests of discipline, they could be made known in the orders of the command. The convening officer usually acted as confirming officer also. The findings of a court martial were not effective until confirmed by the confirming officer, who was empowered to withhold confirmation or substitute, postpone or remit in whole or in part any sentence.