DAVIES v. THE UNITED KINGDOM
Inadmissible
Matti Pellonpää;Nicolas Bratza
The applicant, Phillip Davies, is a British national, born in 1975 and living in Hartlepool. He is represented before the Court by Silver Savory Smith, a firm of solicitors practising in Cambridge. The respondent Government are represented by their Agent, Mr. C. Whomersley of the Foreign and Commonwealth Office. At the time of the events in question the applicant was a soldier in the British Army, holding the rank of Craftsman in the 39th Engineer Regiment of the Royal Electrical and Mechanical Engineers. In September 1997 the applicant’s regiment were on a tour of duty in Northern Ireland. On the evening of 11 September 1997 an altercation took place in a transit accommodation block between the applicant and another soldier, witnessed by three others. Statements were taken from the witnesses, but these were subsequently destroyed in view of the fact that the regiment was shortly to return to England where the incident would be investigated by the military police. Following the investigation, the applicant was charged with assault occasioning actual bodily harm, contrary to section 70 of the Army Act 1955 (see below). He pleaded not guilty on grounds of self-defence. His case was heard before a district court martial held at Colchester between 29 September and 3 October 1997. The applicant was legally represented at, and subsequent to, the hearing. The court martial consisted of three military officers and an Assistant Judge Advocate General. The applicant was found guilty and, on 3 October 1997, he was sentenced to eleven months’ detention and ordered to undergo stoppages of pay until he had made good the sum of GBP 600 by way of compensation to the victim of the assault. A petition for review of the finding and sentence of 22 October 1997 was refused by the Defence Council on 4 December 1997. The applicant applied for leave to appeal against conviction to the Courts-Martial Appeal Court on 23 December 1997, on the grounds that the trial judge had been wrong to allow the trial to continue given the destruction of the witness statements, and that the conviction was therefore unsafe and unsatisfactory. Leave to appeal against conviction was granted by a single judge on 10 February 1998. The appeal was dismissed on 11 May 1998. Between his conviction and the hearing of his appeal, the applicant was detained in Colchester Military Corrective Training Centre. Under the Army Act 1955 as amended by the Armed Forces Act 1996 (which came into force on 1 April 1997), neither the district court martial nor the Defence Council nor the Courts-Martial Appeal Court had any power to grant the applicant bail pending the determination of his appeal. Section 70 of the Army Act 1955 (“the 1955 Act”) renders offences under ordinary criminal law committed by members of the armed services offences against military law. Offences against military law are tried by way of court martial. Section 113 of the 1955 Act (as amended by the armed Forces Act 1996) provides (as relevant): “113.(1) Where a court-martial has found the accused guilty of any offence, the accused may ... present a petition to the Defence Council against finding or sentence or both. (2) The reviewing authority shall ... review any finding of guilt made, and sentence passed, by a court martial. ... (5) For the purposes of this Act the reviewing authority is - (a) the Defence Council; or (b) any officer to whom all or any of the powers of the Defence Council as reviewing authority may be delegated by the Defence Council.” Under section 120 of the 1955 Act, a court martial on passing sentence, or the reviewing authority acting under section 113 above, may order that a sentence be suspended. Under section 118(2) of the Act, where a sentence has been suspended before committal to detention it shall not begin to run until the suspension is determined. Under section 120A of the 1955 Act, a court martial on passing sentence, or the reviewing authority acting under section 113 above, may alternatively order that a sentence be postponed until the end of a period specified in the order. In the event of such an order, the sentence continues to run from the date on which it was pronounced, but does not have effect throughout the period of postponement. Section 19 of the Criminal Appeals Act 1968 provides the Court of Appeal with a power to grant bail to a civilian appellant in a criminal case pending the hearing of his appeal.