AS TO THE ADMISSIBILITY OF
Application no. 35574/97
Ian LE PETIT
against the United Kingdom
The European Court of Human Rights (Third Section), sitting on 5 December 2000 as a Chamber composed of
Mr J.-P. Costa,
Mr W. Fuhrmann,
Mr L. Loucaides,
Mr P. Kūris,
Mr K. Jungwiert,
Sir Nicolas Bratza,
Mr K. Traja, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 21 March 1997 and registered on 8 April 1997,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant is a British national, born in 1957 and living in Bristol. He is represented before the Court by Mr John Mackenzie, a lawyer practising in London.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant joined the Royal Navy in 1974. By October 1995 he held a senior non-commissioned rank and was an experienced administrator, budget manager, service accountant and travel budget holder. He had, however, come to the attention of the Royal Navy Police as regards fraudulent submission of travel allowance claims.
On 20 October 1995 the applicant, while on duty in the United States, was informed by Lt Commander Blake (the Naval Provost Marshal on the Staff of the Flag Officer Plymouth) that he was under investigation on suspicion of travel fraud. He was also informed that he was to be interviewed under caution and offered the opportunity to speak to a naval barrister, Lt Commander Hawkins (a naval barrister and, at the time, the legal adviser on the staff of the Flag Officer Portsmouth). The applicant accepted this offer and was given Lt Commander Hawkins’ telephone number. Lt Commander Blake had already contacted Lt Commander Hawkins asking if the latter would be available to give legal advice if asked and the latter was informed only that the investigation in question was into alleged irregularities with a travel budget. (Lt Commander Blake had previously been one of 7 regulating officers serving in different units in the Portsmouth Naval base area and Lt Commander Hawkins had served on the Headquarters staff of the Flag Officer Portsmouth. Over 4 years, during part of which these two officers had served on the same port base area, Lt Commander Hawkins had prosecuted or defended in cases in which Lt Commander Blake had been involved).
The applicant telephoned Lt Commander Hawkins. The latter informed the applicant that the applicant was under no obligation to speak to him. He was advised that, if he did, the contents of their conversation would be protected by legal privilege and that the advice given to the applicant at that stage would be limited in the circumstances. The applicant indicated that he understood and was content to talk to Lt Commander Hawkins.
Lt Commander Hawkins advised the applicant that he had four options as regards the interview: if he was guilty and wished to get the maximum credit at court, he could make early admissions, but even in these circumstances he should not admit to anything he had not done or was not sure about; or if he had innocent explanations as to the allegations, he could provide answers to clear his name; or if he wished to hear all the evidence against him he could say “no comment” throughout the interview so that the interview would be inadmissible against him in subsequent proceedings; or if he was uncomfortable in any way he should state that he did not want to be interviewed without a solicitor present and ask that he be brought back to the United Kingdom to be interviewed with a solicitor present and that such a request would probably be successful. The applicant confirmed that he understood the advice given.
The applicant then attended two interviews. At the beginning of both interviews he was cautioned pursuant to section 76 of the Police and Criminal Evidence Act 1984 and given a copy of MOD Form 811A which informed him of his rights with regard to legal advice. On each occasion he acknowledged receipt of the form and indicated in writing that he required neither legal advice nor a legal adviser to be present at the interview. He indicated during one of those interviews that he was satisfied that he had received all of the legal advice he would need. (Subsequently, during his court-martial the applicant indicated that he had investigated service offences himself and knew that accused persons were entitled to have a solicitor present while being interviewed for serious service offences.)
At the applicant’s first interview, Divisional Commander Pollack (the Executive Officer of his submarine) attended as an observer with the applicant’s consent. The applicant was expressly offered the right to take legal advice and to have a legal adviser present and he was informed that he could exercise those rights at any time during the interview. The applicant declined. When asked whether he agreed to commence the interview without a legal adviser present, he confirmed that he was. During the interview he was presented with accounting documents and was asked to explain a series of travel claim forms completed by him. The applicant explained one transaction (in respect of which he was not later charged) and made admissions in relation to others. (During his later court-martial he explained that he was able to think sufficiently clearly to respond to detailed questions and that he was not confused about the charges against him). He then gave permission for his interviewers to have access to his bank accounts. Following that access, on 27 November 1995 the applicant was interviewed for the second time and after the second interview he was charged.
The “circumstantial letter” was sent to the Flag Officer Submarines (the convening authority) on 18 March 1996 by which time the applicant was represented by a civilian solicitor. The charge sheet approved by the convening authority listed six charges against the applicant (pursuant to section 42 of the Naval Discipline Act 1957) of obtaining property and a service by deception contrary to section 15 (five charges) and section 1 (one charge) of the Theft Act 1968. All charges related to the making of false misrepresentations between November 1994 and September 1995 regarding travel allowance claims.
By notice dated 3 July 1996 the convening authority (Rear Admiral Perowne, Flag Officer Submarines - “FOSM”) ordered the convening of a court-martial to try the applicant on the charges. He appointed the President of the court-martial by name (Captain Munns, Royal Navy, Staff of the Second Sea Lord and Commander in Chief Naval Home Command). He also appointed the members of the court-martial by name as follows:
- Commander Griffin, Royal Navy, HMS DRAKE;
- Lt Commander Brown, Royal Navy, Staff of Flag Officer C Training;
- Lt Commander Smith, Royal Navy, HMS RALEIGH;
- Lt McMullan, Royal Navy, HMS RALEIGH.
The Judge Advocate (Commander Cooper, Royal Navy, of the Staff of the Second Sea Lord and Commander in Chief Naval Home Command) was appointed by the Chief Naval Judge Advocate. The convening authority also appointed by name the Prosecutor (Lt Cooper, Royal Navy, Barrister on the staff of the convening officer) and the Clerk of the court-martial (Warrant Officer Writer Hawkins, of the Staff of the Commander-in-Chief Fleet). None of the members of the court-martial were serving within the convening authority’s chain of command.
The court-martial took place between 8 and 10 July 1996. The applicant was represented by his current representative, a civilian solicitor. The applicant’s preliminary objections to, inter alia, the admission in evidence of his interviews with the Royal Naval Police were rejected. The applicant therefore pleaded guilty as charged. On 10 July 1996 the applicant was sentenced to three months’ imprisonment.
On 16 July 1996 the applicant submitted a petition to the Defence Council against conviction and sentence arguing that his interviews should not have been admitted in evidence and that the sentence was excessive. In October 1996 the applicant amended his petition to submit that his conviction should be quashed in the light of the House of Lords judgment in R v. Preddy 3AER 483. The applicant’s subsequent appeal to a single judge of the Courts-Martial Appeal Court for leave to appeal to that court was rejected on 11 December 1996. The single judge found that there were no arguable grounds for saying that his admissions during interview were obtained by oppression, nor for setting aside his conviction following the above cited R v. Preddy case.
By letter dated 14 January 1997, the applicant’s representative was informed of the decision taken by the Admiralty Board to reject the petition. The Board considered that the admissions were not the result of oppression and that, given the seriousness of the offences, the sentence was neither manifestly excessive nor wrong in principle.
B. Relevant domestic law and practice
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 Court’s judgment in the Findlay case (Findlay v. the United Kingdom judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I), certain provisions of the 1957 Act have been amended by the Armed Forces Act 1996 (“the 1996 Act”), which Act came into force on 1 April 1997. Apart from section 8 below, the following is an outline of the applicable law and practice prior to the entry into force of the 1996 Act.
Under section 42 of the 1957 Act “civilian” offences are also offences under the 1957 Act. Accordingly, even if the charge amounts to a civilian offence, in most cases naval personnel can be tried on that charge by the naval authorities under the 1957 Act.
Section 1 of the Theft Act 1968 provides that a person is guilty of theft if he or she “dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it”. Section 15 of the 1968 Act, insofar as relevant, read as follows:
“1. A person who by any deception dishonestly obtains property belonging to another, with the intention of permanently depriving the other of it, shall on conviction on indictment be liable to imprisonment for a term not exceeding ten years.”
Misappropriation of money by bank transfer was considered, prior to 1996, to fall within the class of offence which was the subject of section 15(1) of the Theft Act 1968 (R v. Duru (1974) 1 WLR 2, R v. Mitchell (1993) Crim. LR 788 and R v. Williams (unreported, 30 July 1993). In the subsequent R v. Preddy case the Court of Appeal found likewise, whereas the House of Lords in that case (1996 3AER 483) found that section 15(1) of the 1968 Act did not cover cases where the property misappropriated was money obtained by means of a bank transfer. Section 1(1) of the Theft (Amendment) Act 1996 amended section 15 of the 1968 Act to include such transactions.
2. Composition of a naval court-martial
A naval court-martial consists of between five and nine naval officers not below the rank of lieutenant, though the rank of the members may be higher depending on the rank of the accused. Not all members may belong to the same ship or naval establishment and the captain and executive officer of the accused’s ship cannot sit on the court-martial.
A President of the court-martial will be appointed from the members. A Judge Advocate must also take part in every naval court-martial. A Clerk of the Court is also appointed and is responsible for certain administrative and routine duties in connection with the court-martial. A Provost Marshal may be appointed to take the accused into custody and to keep the accused until he is delivered in due course of law. A Prosecutor must be appointed and he may be a legally qualified naval officer or any other competent person. In exceptional cases civilian counsel will be appointed as Prosecutor.
An accused may engage, inter alia, an officer or civilian counsel (“the accused’s friend”). This representative may advise the accused, examine the accused if he desires to give evidence, cross-examine witnesses for the prosecution and examine witnesses for the defence. The accused’s friend may make any submissions that the accused might make and may, on the accused’s behalf, open and close the defence case and, if necessary, make a statement in mitigation of punishment. An accused may engage the services of an officer who is a serving barrister and serving outside of the chain of command of the convening authority. An accused who wished to be represented by a civilian lawyer at the relevant time applied to the Chief Naval Judge Advocate for a grant of legal aid under the Royal Navy Legal Aid Scheme.
3. Convening authority
A court-martial may be convened by the Defence Council and any officer authorised by the Defence Council. Any officer so authorised may in turn authorise an officer under his command (including a flag officer) to so convene a court-martial. The officer who convenes the court-martial is referred to as the convening authority. Appendix 5 to Volume II of the Manual of Naval Law (published by the naval authorities) gives a list of officers who may act as a convening authority and these are the 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.
An application for a court-martial to be held is generally made to the convening authority by the Commanding Officer by way of a “circumstantial letter”. This letter must report the circumstances upon which a charge is 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 has been charged must 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 proposes to put in evidence must accompany the letter.
Based on the material submitted, the convening authority decides on the charges to be retained against an accused and, if he is satisfied with the charge sheet accompanying the circumstantial letter, he can countersign the charge sheet. He also decides on the necessity to hold a court-martial to try the accused on the charges so retained. In this latter respect, the convening authority should be guided by the principles issued by the Director of Public Prosecutions under section 10 of the Prosecution of Offences Act 1985 and must not order a court-martial unless satisfied that the charges are correct, that the evidence is sufficient (namely, that there is a realistic prospect of a conviction) and that there is a “service interest” in trying the matter by court-martial. In convening the court-martial, the convening authority must appoint the date, time and place for the trial and post notice of the court-martial in a place accessible to the public and press at least twenty-four hours before the court-martial.
The convening authority appoints the President and other members of the court-martial. He also appoints, or directs an officer to appoint, a Judge Advocate, a Clerk, a Prosecutor and a Provost Marshal, if the latter is deemed necessary. He must also ensure that the accused is properly assisted. In this latter respect, and unless the accused desires to represent himself or to instruct civilian counsel, the convening authority will nominate a competent naval officer to act as the accused’s friend. The convening authority must also inform the accused that any witnesses he may desire to call and whose attendance may be reasonably procured, will be summoned on his behalf.
The convening authority can, in exceptional circumstances, countermand the ordering of a court-martial before its commencement and dissolve a court-martial during the trial if circumstances arise which, in his opinion, render such action necessary (orders 13(2) and 28(2) of the 1991 Orders).
4. Judge Advocates
The Judge Advocate of the Fleet is appointed by the Queen on the recommendation of the Lord Chancellor and is removable on the same authority for inability or misbehaviour. He must be a barrister or advocate of not less than ten years’ standing. He acts as a legal advisor to the Admiralty Board on matters regarding the administration of justice under the 1957 Act. It is his duty to review all contested courts-martial whether the verdict is guilty or not guilty and, in particular, he advises that Board whether a court-martial was properly conducted according to law and whether the conviction can stand, gives a view on the sentence and draws attention to any gross errors or irregularities. He also gives the Chief Naval Judge Advocate his view as to the manner in which the naval barristers have 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).
The Chief Naval Judge Advocate is a serving officer of the rank of captain of the Royal Navy and is also a barrister. The Chief Naval Judge Advocate is assisted by a staff of serving naval officers who are barristers. His duties include 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 require.
In all other cases a Judge Advocate is appointed to a court-martial from the staff of the Chief Naval Judge Advocate.
Before the trial the Judge Advocate appointed must inform the convening authority of any defect in the constitution of the court-martial. He advises the court-martial, whether his opinion is requested or not, upon all questions of law and procedure which may arise and the court-martial must accept his advice unless there are weighty reasons for rejecting it, in which case those reasons must be recorded.
The Judge Advocate must ensure that the accused does 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 sums up the relevant law and evidence. The Judge Advocate is not present when the court considers its finding and, if during the court-martial’s deliberations on the charges further advice is required, the court-martial must receive that advice in open court. The Judge Advocate also advises the court-martial on sentence but not in open court.
5. The court-martial hearing
The accused is given an opportunity to object to any particular member of the court-martial and to its general constitution. If the objection to the President is upheld the court must adjourn until another is appointed. If an objection to a member is upheld, another member may be appointed from the “spare members list” and, if an objection as to the constitution of the court-martial is upheld, the court-martial must adjourn and report the matter to the convening authority. All members of the court, the Judge Advocate, the Clerk and any other officers of the court-martial must 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 must be given orally and on each charge separately, and their opinions must be given in order of seniority commencing with the junior in rank and the vote of the majority determines sentence.
6. Procedure in the event of a plea of guilty
Before the court accepts a plea of guilty, the Judge Advocate must ensure that the accused understands the charge to which he has pleaded and the different procedure which will result from the plea. The Prosecutor then reads the circumstantial letter. Before the court proceeds to deliberate on sentence, the Prosecutor must whenever possible call relevant witness evidence as regards information in the possession of the naval authorities as to the accused’s background and history which may have rendered the accused more likely to commit the offence, as to his service history and as to his previous convictions. The accused may also give evidence and call witnesses in mitigation. The court-martial must also take note of the accused’s naval record (for example, awards for gallantry).
The members of the court-martial retire (with the Judge Advocate and the Clerk) to consider the sentence. The court-martial does not give reasons for its decision on sentence.
7. Post-hearing matters
Having received the report of the finding and sentence of a court-martial, the convening authority must take the necessary steps to give effect to the sentence (either by a committal order or otherwise) or he can order the suspension of the sentence pursuant to section 90 of the 1957 Act. Chapter 15 of the Manual of Naval law (Volume II) points out that before the convening authority gives effect to or suspends the sentence, he (or, inter alia, the Commander in Chief) must satisfy himself so far as he is able, that no errors have been made in the conduct of the court-martial likely, in his opinion, to invalidate the finding of the court-martial. If he doubts the correctness of the finding, in fact or in law, or the legality of the sentence, he cannot execute the sentence pending reference to the Defence Council. In such circumstances, the accused can be retained in custody or the sentence can be suspended under section 90 of the Act.
The convening authority (among other naval authorities) may at any time, and must at intervals of not more than three months, reconsider any case of suspension and if on reconsideration it appears that the conduct of the offender since his conviction has been such as to justify a remission of sentence, he must remit the whole or any part of it (section 92 of the 1957 Act).
A certified transcript of the proceedings is completed and sent through the commander-in-chief or senior naval officer to the Defence Council. The Defence Council may at any time review a finding of guilt, any sentence awarded in respect of such a finding by any tribunal and any finding by a court-martial that a person is unfit to stand trial or is not guilty by reason of insanity. This must 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).
A convicted person may 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 may, inter alia, quash or alter findings, authorise a re-trial and annul, remit or alter sentences. However, those powers may be, and are normally, carried out by the Admiralty Board or by any officer empowered in this respect by the Admiralty Board. Should an appeal be lodged to the Courts-Martial Appeal Court, the review functions of the Defence Council cease.
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 has the same status and, in essence, the same procedure as the Court of Appeal, Criminal Division and considers appeals from courts-martial. The judges of this court include ordinary and ex officio judges of the Court of Appeal and such judges of the High Court as are nominated by the Lord Chief Justice. There is no provision for an appeal against sentence only, although certain powers of revising such sentences, pursuant to an appeal against conviction, are available to the CMAC. Once an application to the CMAC has been received by the Registrar of the CMAC the Defence Council’s duty to review ceases.
8. The Armed Forces Act 1996
Under the 1996 Act, the role of the convening authority ceased to exist and his functions were split among three different bodies: the higher authority, the prosecuting authority and court administration officers (Schedule I).
The higher authority, a senior officer, decides whether any case referred to him by the accused’s commanding officer should be tried summarily, referred to the new prosecuting authority, or dropped. Once the higher authority has taken this decision, he has no further involvement in the case.
A prosecuting authority is to be appointed for each Service. Following the higher authority’s decision to refer a case to it, the prosecuting authority has an absolute discretion, applying similar criteria to 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 what charges should be brought. It also conducts the prosecution (Schedule I, Part II).
Court administration officers have also been appointed in each Service. They are independent of both the higher and the prosecuting authorities and are responsible for making the arrangements for courts-martial, including arranging venue and timing, ensuring that a judge advocate and any court officials required are available, securing the attendance of witnesses and the selection of members. Officers under the command of the higher authority will not be selected as members of the court-martial (Schedule I, Part III).
Every court-martial should now include a judge advocate as a member. His advice on points of law is binding on the court and he has a vote on sentence (but not on conviction). The casting vote, if needed, rests with the president of the court-martial, who gives reasons for the sentence in open court (Schedule I, Part III).
A reviewing authority has been established in each Service to conduct a single review of each case. Reasons are now given for the decision of the reviewing authority. As part of this process, 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 (Schedule V). A right of appeal against sentence to the CMAC has been added to the existing right of appeal against conviction (section 17 of the 1996 Act).
(a) The main focus of the applicant’s complaint is that the court-martial was not independent or impartial due to the connection between the members and other officers of the court-martial with the convening authority, the latter being effectively the prosecuting authority. He also refers to the completely naval composition of the court-martial and to alleged institutional connections between the Judge Advocate and the Prosecutor and between the two naval barristers who advised him and the Judge Advocate.
(b) He further complains that he did not have a fair hearing, submitting that the lawyer who advised him prior to his interviews with the naval police did not fully inform him, had a working relationship with the prosecution and was selected to advise the applicant by an investigating police officer. He also takes issue with the later admission in evidence of those interviews. In addition, the applicant argues that the court-martial was not “established by law” since an administrative body (the Admiralty Board) could quash the applicant’s conviction and sentence.
(c) He further complains that the court-martial was not “public” given the obligation on those who attended the court-martial to record their names and addresses with the naval authorities.
“In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...”
(a) His main submission under Article 6 § 1 is that the court-martial was neither independent nor impartial within the meaning of Article 6 § 1 because of the controlling role of the convening authority. In particular, the applicant points to the latter officer’s institutional connection with the prosecution of the case and with the members and other officers of the court-martial. He also refers to the completely naval composition of the court-martial and to alleged institutional connections between the Judge Advocate and the Prosecutor and between the two naval barristers who advised him and the Judge Advocate.
The Government point out that, following the Commission’s Report in the above-cited Findlay case (Comm. Report of 5 September 1995), the Royal Navy took steps to ensure that the members of the applicant’s court-martial were not in the convening authority’s chain of command. Although those members were subordinate to him, what concerned the Court in the Findlay case was that the members of Mr Findlay’s court-martial were in the direct chain of command of the relevant convening officer. None of the members of the present applicant’s court-martial were in the convening authority’s chain of command, so that the applicant could not therefore have any objective doubts about the independence and impartiality of his court-martial. The Government point out that he did not challenge the composition of the court-martial prior to his trial as he could have.
Moreover, there is no ‘confirming stage’ after the court-martial in naval courts-martial as there was in Mr Findlay’s court-martial. Instead a finding of guilt is checked by a Reviewing Authority. The Reviewing Officer is independent of all others involved in the court-martial process and that officer can only be advised on any legal questions by a naval officer who is not involved in any court-martial work for the duration of his appointment.
Accordingly, the Government submit that the convening authority only convened the court-martial and appointed the Judge Advocate, the Prosecutor and the court-martial members. Once the court-martial commenced, he played no further role. Although the Court in the Findlay judgment also expressed concerns as to the post-trial procedure, that procedure does not affect the independence and impartiality of the court-martial which tried the applicant. As the Court stated at paragraph 80 of its Findlay judgment, its misgivings arose in particular from the role played by the convening officer in the organisation of the court-martial and not from any of the post-trial procedures.
As to the applicant’s allegations that he was tried on offences against the Royal Navy by a court-martial whose members and officers were all from the Royal Navy, the Government point out that one charge related to a non-Ministry of Defence company and that, in any event, the members of the court-martial could not be considered to be members of the “aggrieved party” which was the Ministry of Defence. Nor was the President of the court-martial from the same staff as Lt Commander Hawkins as alleged by the applicant; Lt Commander Hawkins was, at the relevant time, serving in an independent command.
The Government also dispute the applicant’s allegation that the Judge Advocate and the Prosecutor were members of the same Royal Navy department, the Supply and Secretariat Branch, in which the Judge Advocate was the Prosecutor’s senior officer. The Government point out that the Judge Advocate and the Prosecutor served in different units from each other. Although the former held higher rank, the Judge Advocate was neither responsible for, nor did he have any supervisory role over, the Prosecutor. The Government also clarify that there is no Royal Navy legal branch. They further deny the applicant’s allegation that the two lawyers who provided the applicant with advice (Lt Commander Hawkins and Lt Commander Crozier) were members of the same department as the Prosecutor and the Judge Advocate; they point out that both those advising officers worked in separate units which were independent of the staffs of the Convening Officer and of the Flag Officer Plymouth whose disciplinary staff conducted the investigation.
The applicant accepts that the present court-martial may not be on all fours with the above-cited Findlay case but points to the role of the convening authority in the prosecution of a case together with his appointment of the court-martial members, court-martial officials and of the Judge Advocate. Every person involved in the court-martial was subordinate in rank to the convening officer; all were serving members of the Royal Navy and all were appointed by a prosecuting authority. In addition, the Judge Advocate appears to have been in the same chain of command as the President and to have been junior in rank. He reaffirms that he objected to the composition of the court-martial prior to the hearing before that body.
(b) The applicant also complains that the proceedings against him were unfair and that the court-martial was not “established by law”.
As to the fairness of the proceedings, he submits that the lawyer (Lt Commander Hawkins) who advised him prior to his interviews with the naval police did not fully inform him. He maintains that that lawyer was not an independent barrister and argues that he had close links, including a working relationship, with Lt Commander Blake, an investigating officer. The former had prosecuted cases that the latter had “conducted” while both were posted in Portsmouth. The applicant contends that Lt Commander Blake deliberately ensured that the applicant would get less robust advice by ensuring advice by Lt Commander Hawkins. Moreover, Lt Commander Hawkins formed part of a separate group of navy barristers whose performance in the conduct of a court-martial and other legal duties is bound to be assessed and reported upon by other legally qualified officers. Indeed, Appendix 5 to the Manual of Naval Law provides that the Chief Naval Judge Advocate has the obligation to advise on the selection and appointment of naval barristers and that the Judge Advocate of the Fleet has the obligation to comment on the performance of officers in the courts-martial he reviews.
In this context, he also submits that the Royal Navy investigating officers deliberately arranged to interview the applicant in circumstances that placed him at a disadvantage. The assistance of Lt Commander Hawkins was for appearances of legitimacy and, while the latter may have informed the applicant of his options by telephone, this did not constitute advice or, at least, sufficient advice. The applicant also takes issue with the later admission in evidence of those interviews.
He further complains that the court-martial was not “established by law” since the Admiralty Board, an administrative body, could quash his conviction and sentence.
The Government deny that there was any “working relationship” between Lt Commanders Blake and Hawkins and the suggestion that the former “selected” the latter. They point out that the former had not arranged for the applicant to be advised by the latter but that Lt Commander Blake had informed the applicant that Lt Commander Hankins would be available to advise the applicant if the applicant so wished. Thus the services of Lt Commander Hawkins were simply offered to the applicant, that officer had made himself available and the applicant had contacted that officer. No information, other than that the matter related to alleged irregularities with the travel budget, was given by Lt Commander Blake to Lt Commander Hawkins prior to the applicant being advised by the latter.
The Court considers that the applicant’s complaints described at 1(a) and (b) above about the court-martial proceedings against him raise serious issues under Article 6 § 1 of the Convention which require a determination on the merits. It follows that these complaints cannot be dismissed being as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.
(c) The applicant also complains under Article 6 § 1 that the proceedings were not “public” because members of the public attending the court-martial had to provide their names and addresses to the naval authorities.
The Government maintain that the court-martial hearing was public, pointing out that notice of the trial was placed on the main gate of HMS DRAKE and that the hearing was held in a court-martial complex to which the public had full access. Non-military visitors were required to provide their names to the gate staff as a security and safety measure made necessary by the proximity of the court-martial complex to a nuclear submarine base. No one was prevented from entering the court-martial and a member of the press attended on each day. Relying on the Commission’s report in the Hood case (Hood v. the United Kingdom, application no. 27267/95, Commission report of 28 May 1998, unpublished), they point out that there was nothing in the applicant’s submissions which would show that he did not have a “public” hearing within the meaning of Article 6 § 1 of the Convention. The applicant did not comment on these observations of the Government.
The Court recalls that the object pursued by the publicity requirement in Article 6 § 1 is to ensure scrutiny of the judicial process by the public with a view to safeguarding the right to a fair trial and that security reasons can justify the exclusion of the public from proceedings (see the Pretto v. Italy judgment of 8 December 1983, Series A no. 71, p. 13, § 27; and the Campbell and Fell v. the United Kingdom judgment of 28 June 1984, Series A no. 80, p. 42, §§ 87-88).
The Court notes that, in principle, courts-martial are open, that members of the press and public are permitted to attend and that trial listings are required to be posted beforehand in a place accessible to the public. The Court observes that the applicant does not contest the Government’s factual submissions as regards the posting of a notice of the applicant’s court-martial, and the access to and attendance at the applicant’s court-martial by civilians. The Court does not consider that the obligation on civilians to provide their names and addresses to the naval authorities would amount to a deterrent to the public and press from attending a court-martial. Even assuming that it did, the Court considers that, in any event, the reasonable security concerns of the Government constitute sufficient reasons justifying any such restriction on the publicity requirement of Article 6 § 1 of the Convention (see, for example, Baragiola v. Switzerland, application no. 17265/90, Commission decision of 21 October 1993, Decisions and Reports (DR) 75, p. 76, at p. 125; and Hood v. the United Kingdom, application no. 27267/95, Commission report of 28 May 1998, unpublished). It is further noted that the applicant was tried in a military court-martial complex and that it is not contended by the applicant that that complex was anything other than a normal place of trial by court-martial (see the Riepan v. Austria judgment of 14 November 2000, § 29).
This complaint of the applicant under Article 6 § 1 of the Convention is, accordingly, manifestly ill-founded and is to be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national … law at the time when it was committed. …”
The Government point out that Article 7 is primarily concerned with the prohibition of the retrospective application of the criminal law to the disadvantage of an accused. In the present case, there was no such retrospective application, the applicant having been properly convicted according to the relevant applicable law at the date of the conviction. In addition, the applicant made full admissions to these offences when interviewed and pleaded guilty before the court-martial. Indeed, the applicant could have been charged and prosecuted for other criminal offences arising out of the same admitted facts, namely false accounting.
The applicant submits that where a superior court holds that a crime cannot be committed in a particular way as a matter of law, the conviction of a person who has pleaded guilty to a charge alleging the commission of that crime in that way must be quashed if he appeals against the conviction because he has committed no crime.
The Court considers that, despite the subsequent judgment of the House of Lords, it was clearly foreseeable, given prior case-law, that the matters to which the applicant pleaded guilty would constitute, as they did, offences under the Naval Discipline Act 1957 (section 42) and under sections 1 and 15 of the Theft Act 1968 at the time they were committed (Cantoni v. France judgment of 15 November 1996, Reports 1996-V, no. 20, p. 1627, § 29). Moreover, the Court notes that Article 7 does not guarantee the right to have a subsequent and favourable change in the law applied to an earlier offence (H.K. v. Germany, application no. 7900/77, Commission decision of 6 March 1978, DR 13, p. 70).
Accordingly, the Court considers that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority…”
The Court recalls, as the Government submit, that Article 13 does not require the incorporation of the Convention into domestic law (see the Silver and Others v. the United Kingdom judgment of 25 March 1983, Series A no. 61, p. 42, § 12). This complaint is, accordingly, manifestly ill-founded and therefore also to be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicant’s complaints that he did not have a fair hearing by an independent and impartial tribunal established by law;
Declares inadmissible the remainder of the application.
S. Dollé J.-P.