England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURTS MARTIAL APPEAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		Monday 15 January 2001

LAWS LJ:

INTRODUCTORY

1. These appeals require the court to examine certain aspects of the procedures adopted for the establishment of courts martial in the Army and in the Royal Air Force for their compatibility with Art. 6 of the European Convention on Human Rights. Now that we are past 2 October 2000 when the principal Convention rights took their place as part of our municipal law, although all the relevant events in these cases happened before that date, it is common ground (having regard to the terms of ss.7 and 23 of the Human Rights Act 1998) that the Convention rights are to be applied directly by this court.
2. In Findlay (1997) 24 EHRR 221 the European Court of Human Rights had to consider the position of the "convening officer" in the then regime of British courts martial. In summary (we shall have to refer further to the Findlay case) the court held that by virtue of the role, powers and influence of the convening officer the court martial lacked those characteristics of independence and impartiality upon which Art. 6(1) insists. Before the Findlay decision was given in Strasbourg, the British government had in fact sought and obtained legislation in Parliament to reform the court martial system. That was done in the form of the Armed Forces Act 1996. In giving judgment in Findlay on 25 February 1997 the Strasbourg court referred to that statute but noted that its relevant provisions would not come into force until 1 April 1997. On that date the 1996 Act abolished the position of the convening officer, and other changes were made.

THE SCOPE OF THE APPEALS

3. In these appeals objection is taken on Art. 6 grounds to the role of two participants in the court martial regime as it has stood since 1 April 1997. The first objection is that the position of permanent president of a court martial (hereafter "PPCM") offends Art. 6(1). The second objection, which only arises in the Boyd appeal, is that the appointment of a part-time or ad hoc judge advocate to a particular court martial also offends Art. 6(1). The PPCM and the part-time judge advocate are said to lack impartiality and independence. There is however no suggestion, as we understand it, within the grounds upon which leave to appeal has been granted that the individuals who acted in these capacities in these particular cases were actually biased (though one of Mr Mackenzie's submissions in Spear & Hastie, as we shall show, appears to assert as much). The real argument is as to the appearance of the thing.
4. On 6 March 2000 Assistant Judge Advocate General Pearson issued a ruling at the Aldershot Court Martial Centre, in a case by name McKendry, to the effect that the appointment of a PPCM to a District Court Martial ("DCM") had the consequence that the tribunal was not impartial and independent. In due course we shall have to examine the reasoning in this decision with some care.
5. There is a further submission in Spear & Hastie, also based on Art. 6, in which the complaint is that Army legal aid was granted so late that the appellants were deprived of a fair trial, and in that connection there is an argument sought to be raised to the effect that the convictions are unsafe on the facts. There were some further points taken in Boyd to which for completeness we shall make brief reference, but Mr Blades, Boyd's advocate, has no leave to argue them distinctly.
6. John Spear and Philip Hastie were at the material time both Lance Sergeants serving with the Irish Guards in Germany. On 1 February 2000 at a DCM held at Osnabruck they were both found guilty of an offence of assault occasioning actual bodily harm, with which they had been jointly charged. Each was sentenced to nine months imprisonment, and to be reduced to the ranks and dismissed the Service. As was their right they presented petitions on 9 February 2000 against the findings and sentence to what is called the Reviewing Authority; but on 30 March 2000 they were notified that their petitions were refused. They now appeal against their conviction by leave of the single judge, who stated in the case of each appellant:

"The applicant has arguable grounds on the Article 6 point. He was tried by a board including a permanent president. Judge Pearson's ruling that the appointment of a permanent president does not give rise to an impartial and independent tribunal... provides the basis of an appeal. The habitual late legal aid point is also arguable.

I do not give leave on the other grounds..."

7. We set out the terms of the single judge's decision because there has been some contention as to the proper scope of the appeals in Spear & Hastie. Their solicitor advocate, Mr Mackenzie, has supplied the court with very extensive materials prepared by himself which are plainly designed to mount a root-and-branch attack on the court martial system as a whole; and Mr Blades for Boyd, the appellant in the other case, has associated himself with so broad-based a challenge. Mr Mackenzie particularly desires to assault what he sees as the over-arching power of the Adjutant General to influence and direct all or most aspects of the way in which courts martial are carried on. We make it clear, as we did in the course of the hearing, that his clients have no leave to embark upon such an exercise. Their appeals properly, and only, concern the position of the PPCM; in particular, the role of the PPCM appointed to the DCM in this prosecution. Nothing else is engaged (save the other specific points to which we have referred and which we will address).
8. David Morton Boyd was at the material time a Chief Technician in the Royal Air Force. On 17 December 1999 he was convicted at a DCM sitting at RAF Akrotiri in Cyprus of an offence of assault occasioning actual bodily harm. He was sentenced to be reduced to the ranks and put under stoppages of pay until he had made good the sum of £1,200 compensation to his victim. His petition to the Reviewing Authority was refused by notice given on 17 February 2000. He was refused leave to appeal against conviction and sentence by the single judge. We granted leave to appeal on two points: (1) that the appointment of a PPCM to the DCM meant that the tribunal was not impartial and independent within the meaning of Art. 6(1) - this of course is the same point as that taken in Spear & Hastie; and (2) (by amendment to the draft Grounds, for which we gave leave) the appointment of a part-time or ad hoc Judge Advocate to the DCM in Boyd's case also offends Art. 6(1), and for like reasons.

THE FACTS OF THE ALLEGED OFFENCES

9. Since the points in the appeals do not engage any of the details of the evidence (save in one respect in relation to Spear and Hastie's particular argument as to the safety of their convictions, which we shall explain separately), we may describe the facts of the two cases quite shortly.

Spear & Hastie

10. The accusation was one of a joint assault on a fellow soldier, Guardsman Lane, early in the morning of 4 December 1998. There had been a company function the night before at premises called The Ship on the outskirts of Munster, at which Lane (as he was to tell the DCM) had drunk 10 or 11 pints and got very drunk. He got back to the barracks at about 5 am. His own room was locked, he did not have the key, and he went into the room occupied by another soldier, Guardsman Bright. Bright was sleeping on the floor. Lane got into Bright's bed, wearing only boxer shorts. He told the DCM that the appellants came in and ordered him out into the corridor where they beat him up, striking him in the face eight or nine times. At the end of the incident there was blood all over his swollen face. He was cross-examined about an earlier account he had given of how he came by his injuries - that he had been attacked by German civilians - which was plainly inconsistent with his evidence and with his statement to the Special Investigation Branch; he said he was scared of repercussions, and of being attacked in the camp.
11. Guardsman Bright gave evidence. He also had had quite a lot to drink. He said he went to his own bed; he was woken by shouting in the corridor, and recognised the appellants' voices; he heard two or three loud thuds, and sobbing; Lane was not in his room. At about 8-30 am Spear came in and asked what he was doing. He left, and after about five minutes Lane came in. He had a swollen nose and was holding his jaw.
12. There were a number of other prosecution witnesses whose evidence we need not summarise. They included the platoon sergeant, Sergeant Geraghty; it was a significant part of the appellants' case that Geraghty had put pressure on Lane to implicate them, which Lane denied. The appellants both gave evidence, denying any assault. Hastie said that he and Spear woke up Bright who was on the floor, and he (Hastie) woke up Lane who was in the bed; and told him he should not sleep in other people's beds. He saw bruising, scratches and a cut on Lane's nose. Spear said there was bad blood between him and Geraghty, and gave some chapter and verse. He also gave an account of going into Bright's room with Hastie, where they found Bright on the floor and Lane in the bed. Lane left the room, and he (Spear) and Hastie put Bright into his bed.

Boyd

13. The allegation was that on 15 April 1999 Boyd punched Sergeant Graffen once in the face. Sergeant Graffen was to say that the two of them were close friends, and had been so for some fourteen years. There had been an angry altercation between them the previous evening, 14 April. On the morning of 15 April Boyd demanded that Graffen see him in his office. Boyd was seated at his desk. Graffen stood in front of him. After a hostile verbal exchange Boyd got up, walked round the desk and punched Graffen in the face. Graffen fell to the floor. His cheek was cut, and had to be mended with three stitches. There was a fracture to a bone in the temple region, which was reduced under a general anaesthetic. There was some supporting prosecution evidence. Boyd gave evidence in his own defence, denying any assault. In essence he said that Graffen had put his hands on his shoulders, "taking the mickey", he had shrugged him off, and Graffen stumbled and went down: when he got up, Boyd saw that the side of his face was bleeding.

THE ISSUES

(1) THE PERMANENT PRESIDENT

14. Art. 6(1) of the European Convention provides in part:

"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..."

Material Strasbourg Jurisprudence

15. In Findlay (1997) 24 EHRR 221, to which we have already referred, the European Court of Human Rights set out its approach to the requirement of "an independent and impartial tribunal" in language which was anticipated and replicated in earlier and later decisions of the court. As we have said, in Findlay the court had to consider the position of the "convening officer" in the then regime of British courts martial. At pp. 244-246 of the judgment it was stated:

"73. The Court recalls that in order to establish whether a tribunal can be considered 'independent', regard must be had inter alia to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of impartiality. [A footnote then refers to Bryan v UK (1996) 21 EHRR 342, para. 37.]

As to the question of 'impartiality', there are two aspects to this requirement. First, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect.

The concepts of independence and impartiality are closely linked and the Court will consider them together as they relate to the present case.

74. The Court observes that the convening officer, as was his responsibility under the rules applicable at the time, played a significant role before the hearing of Mr Findlay's case. He decided which charges should be brought and which type of court-martial was most appropriate. He convened the court-martial and appointed its members and the prosecuting and defending officers.

Under the rules then in force, he had the task of sending an abstract of the evidence to the prosecuting officer and the judge advocate and could indicate passages which might be inadmissible. He procured the attendance at trial of the witnesses for the prosecution and those 'reasonably requested' by the defence. His agreement was necessary before the prosecuting officer could accept a plea to a lesser charge from an accused and was usually sought before charges were withdrawn.

For these reasons the Court, like the Commission, considers that the convening officer was central to Mr Findlay's prosecution and closely linked to the prosecuting authorities.

75. The question therefore arises whether the members of the court-martial were sufficiently independent of the convening officer and whether the organisation of the trial offered adequate guarantees of impartiality.

... It is noteworthy that all the members of the court-martial, appointed by the convening officer, were subordinate in rank to him. Many of them, including the President, were directly or ultimately under his command. Furthermore, the convening officer had the power, albeit in prescribed circumstances, to dissolve the court-martial either before or during the trial.

76. In order to maintain confidence in the independence and impartiality of the court, appearances may be of importance. Since all the members of the court-martial which decided Mr Findlay's case were subordinate in rank to the convening officer and fell within his chain of command, Mr Findlay's doubts about the tribunal's independence and impartiality could be objectively justified.

77. In addition, the Court finds it significant that the convening officer also acted as 'confirming officer'. Thus, the decision of the court-martial was not effective until ratified by him, and he had the power to vary the sentence imposed as he saw fit. This is contrary to the well-established principle that the power to give a binding decision which may not be altered by a non-judicial authority is inherent in the very notion of 'tribunal' and can also be seen as a component of the 'independence' required by Article 6(1).

78. The Court further agrees with the Commission that these fundamental flaws in the court-martial system were not remedied by the presence of safeguards, such as the involvement of the judge advocate, who was not himself a member of the tribunal and whose advice to it was not made public or the oath taken by the members of the court-martial board.

79. Nor could the defects referred to above be corrected by any subsequent review hearings. Since the applicant's hearing was concerned with serious charges classified as 'criminal' under both domestic and Convention law, he was entitled to a first instance tribunal which fully met the requirements of Article 6(1)."

16. It is convenient before proceeding further to describe another decision of the court at Strasbourg upon which reliance is sought to be placed. After the hearing before us, by letter dated 3 November 2000 Mr Mackenzie forwarded to the Registrar a copy of the judgment in Incal v Turkey (41/1997/825/1031: 9 June 1998). (We assume, it goes without saying, that he supplied it also to Mr Blades and Mr Havers QC for the respondent.) Complaint was made in that case that the Izmir National Security Court was not an independent and impartial tribunal within the meaning of Art. 6(1) on the ground that one of its three members was a military judge, and a regular army officer and member of the Military Legal Service. The court's majority judgment contains these passages:

"66. ... As the independence and impartiality of the two civilian judges is not disputed, the Court must determine what the position was with regard to the military judge.

67. The Court notes that the status of military judges sitting as members of National Security Courts provides certain guarantees of independence and impartiality. For example, military judges undergo the same professional training as their civilian counterparts, which gives them the status of career members of the Military Legal Service. When sitting as members of National Security Courts, military judges enjoy constitutional safeguards identical to those of civilian judges; in addition, with certain exceptions, they may not be removed from office or made to retire early without their consent...; as regular members of a National Security Court they sit as individuals; according to the Constitution, they must be independent and no public authority may give them instructions concerning their judicial activities or influence them in the performance of their duties...

68. On the other hand, other aspects of these judges' status make it questionable. Firstly, they are servicemen who still belong to the army, which in turn takes its orders from the executive. Secondly, they remain subject to military discipline and assessment reports are compiled on them by the army for that purpose... Decisions pertaining to their appointment are to a great extent taken by the administrative authorities and the army... Lastly, their term of office as National Security Court judges is only four years and can be renewed.

69. The Court notes that the National Security Courts were set up pursuant to the Constitution to deal with offences affecting Turkey's territorial integrity and national unity, its democratic regime and its State security... Their main distinguishing feature is that, although they are non-military courts, one of their judges is always a members of the Military Legal Service.

...

72. Mr Incal was convicted of disseminating separatist propaganda capable of inciting the people to resist the government and commit criminal offences, for participating in the decision to distribute the leaflet in issue, taken on 1 July 1992 by the executive committee of the Izmir section of the HEP [the People's Labour Party, which was dissolved by the Constitutional Court on 14 July 1993]... As the acts which gave rise to the case were considered likely to endanger the founding principles of the Republic of Turkey, or to affect its security, they came ipso jure under the jurisdiction of the National Security Courts...

The Court notes, however, that in considering the question of compliance with Article 10 [which was also raised in the case] it did not discern anything in the leaflet which might be regarded as incitement of part of the population to violence, hostility or hatred between citizens (see paragraph 50 above)... In addition, the Court attaches great importance to the fact that a civilian had to appear before a court composed, even if only in part, of members of the armed forces.

It follows that the appellant could legitimately fear that because one of the judges of the Izmir National Security Court was a military judge it might allow itself to be unduly influenced by considerations which had nothing to do with the case...

73. In conclusion, the applicant had legitimate cause to doubt the independence and impartiality of the Izmir National Security Court.

There has accordingly been a breach of Article 6 # 1."

17. Mr Incal had been sentenced to six months and twenty days imprisonment, fined, and disqualified from driving for fifteen days. It is instructive to see what the court at Strasbourg said in paragraph 50 of the judgment, to which cross-reference was made in paragraph 72:

"50. The Court notes that the relevant passages in the leaflet criticised certain administrative and municipal measures taken by the authorities, in particular against street traders. They thus reported actual events which were of some interest to the people of Izmir.

The leaflet began by complaining of an atmosphere of hostility towards citizens of Kurdish origin in Izmir and suggested that the measures concerned were directed against them in particular, to force them to leave the city. The text contained a number of virulent remarks about the policy of the Turkish government and made serious accusations, holding them responsible for the situation. Appealing to 'all democratic patriots', it described the authorities' actions as 'terror' and as part of a 'special war' being conducted 'in the country' against 'the Kurdish people'. It called on citizens to 'oppose' this situation, in particular by means of 'neighbourhood committees'...

The Court certainly sees in these phrases appeals to, among others, the population of Kurdish origin, urging them to band together to raise certain political demands. Although the reference to 'neighbourhood committees' appears unclear, those appeals cannot, however, if read in context, be taken as incitement to the use of violence, hostility or hatred between citizens."

The court proceeded to hold that Mr Incal's conviction was disproportionate to the aim pursued, and therefore unnecessary in a democratic society; accordingly there had been a violation of Art. 10.

The Facts Relating to PPCM Appointments

18. Although as we have made clear the appeals on this part of the case strictly concern only the role of the PPCM, it is important to have the current background in mind. As we have said, the role of the convening officer was abolished by the Armed Forces Act 1996, and the administrative arrangements for the establishment of a court martial in any given case are now very different. The functions previously performed by the convening officer were split between three bodies. (1) The "higher authority" - a senior officer - decides, upon a case being referred to him by the accused's commanding officer, whether to refer it back to him for summary disposal, or to refer it on to the "prosecuting authority" for a decision on prosecution at court martial, or to take no proceedings at all. He asks himself whether there are Service reasons for not prosecuting. Once he has taken his decision, he has no further involvement in the case. (2) The "prosecuting authority" is a legally qualified officer. Upon a case being referred to him by the higher authority he decides, in his absolute discretion, whether to prosecute, what type of court martial is appropriate, and what charges will be brought. In deciding whether to prosecute he applies tests which are parallel to those of public interest and sufficiency of evidence, which are of course applied by the Crown Prosecution Service in civilian cases. He (by his proper delegate) conducts the prosecution. Any decision to amend, add or discontinue any charge, or to accept a plea to an alternative charge, lies with the prosecuting authority alone. (3) The "Court Administration Officer" is responsible for the administrative arrangements for courts martial. Most significantly, he selects the court's members for each particular case. CAOs are appointed in each of the Services. They are independent both of the higher authority and the prosecuting authority. The guiding principle for the selection of members of a court martial is that they should be officers who are not under the command of the higher authority.
19. There is now no question of anyone acting as "confirming officer", whether in relation to the sentence passed by the court martial or otherwise. The CAO has power to dissolve a court martial before it sits, if it is necessary or expedient in the interests of justice to do so. The judge advocate has a like power to dissolve after the court martial has commenced.
20. We turn to the role of the PPCM. Mr Mackenzie submits that the circumstances and conditions of his appointment lead to the conclusion that a court martial over which he presides lacks those characteristics of independence and impartiality upon which Art. 6(1) insists. Mr Blades adopted his submissions.
21. PPCMs were first appointed in the Army in March 1941. In recent years (until their use was abolished or at least suspended in May 2000 in light of the decision in the case of McKendry) they were routinely appointed to sit in almost all courts martial. After the 1996 Act took effect Army PPCMs were appointed by the Military Secretary, a department reporting to the Adjutant General, who is a senior general with overall responsibility for Army discipline. The arrangements in the Royal Air Force are, we understand, not significantly different. As at September 1998 there were seven Army PPCMs. The name of their office meant what it said: they were permanent presidents whose full time occupation, during the period of their appointment, was to preside at courts martial. Almost without exception (not absolutely: those instructing Mr Havers knew of one exception) they were appointed PPCM as their last posting in the Service. From the material before us we understand that this was done advisedly. The position in the Royal Air Force is similar. There, the post of PPCM has for the last 22 years always been its holder's last posting.
22. There is evidence before us as to the circumstances of the two PPCMs who sat in these cases. We have a detailed letter dated 26 October 2000 from Lt Col Stone, the PPCM who presided in Spear & Hastie. It is not necessary to set it out; it is accurately represented by the following distillation put forward by Mr Havers. Lt Col Stone was appointed PPCM in January 1998. His appointment was specified to run until February 2002. It was always plain that this was to be his last posting; but in fact he was deployed in a staff job within First UK Armoured Division after and because of the abolition of the PPCM regime in May 2000 following McKendry, since at that date he still had some time to serve before retirement. He had no prospects of further promotion. He had no intention of seeking employment after his retirement within the Ministry of Defence as a retired officer. No reports were made upon him in his office as PPCM; indeed there have in the Army been no reports upon any PPCM since April 1997 when the Act of 1996 came into force. Lt Col Stone worked outside any regimental or other chain of command, from his married quarters home, and eschewed the officers' mess because "to do otherwise could have compromised my position as a PPCM".
23. There is also a statement from Gp Capt Trace, who is Deputy Director within the Personnel Management Agency responsible for the career management of all officers of the General Duties and Operations Support Branches up to and including the rank of Wing Commander. He has perused the personal file of Wing Cdr Chambers, who sat as PPCM in Boyd's case. Wing Cdr Chambers was appointed PPCM in June 1998 initially for some two years, but he accepted a two-year extension. This was his last posting. He had no prospects of promotion. He worked from home, and his only contacts of any substance with the Service were for purposes of administration and welfare. No reports were made upon him in respect of his decision-making functions as PPCM. We should add that when Boyd's applications were renewed to this court, his solicitor Mr Blades noted on the renewal form "Since this case was heard the president has been suspended. The RAF do not appear to believe that the president is independent." There was also a suggestion that Wing Cdr Chambers had at some stage been disciplined or reprimanded. This is not supported by any material of any substance which we have seen. There is no reference to any such matter in the documents emanating from the RAF. It was not pressed with any force by Mr Blades, and is not within the purview of Boyd's leave to appeal granted by us. There may be scope for some confusion since it appears from Gp Capt Trace's letter that Wing Cdr Chambers held office as PPCM "until the post was suspended on 16 February 2000." (our emphasis)

McKendry

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 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 Art. 6 standards to be applied (the numbering attached to the judge advocate's text is ours, not his):

"(1) I am concerned as to the terms of the 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 [sc. the prosecuting authority, whose role we have described], 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 obviously also 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 impartial and independent 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.

Submissions for the Appellants

25. Mr Mackenzie sought to build on the reasoning in McKendry with a series of further points, canvassed both in his skeleton argument and his address to us in court. 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" (skeleton argument, para. N(4)); (c) the PPCM is senior in rank to the other officers on the court martial (at a DCM, as we understand it, in addition to the PPCM there is typically a Major and a Captain), 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 the 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 Art. 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 Lt Colonel, or his equivalent in the Royal Air Force, 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 as to 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 Art. 6 requirements of independence and impartiality are met. This, we consider, is the real thrust of the case; and it calls up not only the relevant Strasbourg jurisprudence but also points (1), (3) and (4) in the ruling in McKendry, and the important decision of the High Court of Justiciary in Starrs v Ruxton [2000] SLT 42.
30. However before turning to those points and to the case of Starrs, 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.

Starrs

31. The court in Starrs tested the position of temporary sheriffs in Scotland against the requirements of Art. 6(1) and found it wanting. Their position was governed by s.11 of the Sheriff Courts (Scotland) Act 1971, which provided for the appointment of temporary sheriffs (and sheriffs principal) by the Secretary of State. S.11(4) stated "[t]he appointment… of a temporary sheriff shall subsist until recalled by the Secretary of State". However as the Lord Justice Clerk pointed out (48J-49J), in practice the Lord Advocate played a crucial role. He decided whether there was a requirement for temporary sheriffs at any particular time. In due course he drew up a list of candidates with a view to their being interviewed. Some will have been eliminated earlier. The Lord Advocate took account of such factors as geographical spread, gender, breadth of experience and expertise. It was the policy of the Lord Advocate at the time of Starrs not normally to appoint anyone over the age of 65. Consideration was given to the question whether an applicant might be appropriate for permanent appointment (and indeed appointments to the full-time shrieval bench were generally made from those who had had experience as temporary sheriffs). Applicants for appointment as temporary sheriff were interviewed (though some candidates in particular categories went forward without interview). Reports of such interviews went to the Lord Advocate via Scottish Courts Administration. Some applicants were discarded at that stage as non-appointable. The remainder were graded. Then the Lord Advocate, after consulting with the Solicitor General and the Lord President, would forward the finalised list to Scottish Courts Administration for the appointments to be made. In (at any rate) 1997 and 1998 appointments were made for one year only, being the following calendar year, but subject to recall under s.11(4). Re-appointments were considered by the Lord Advocate. A temporary sheriff would normally expect to be re-appointed: it was (the Solicitor General told the court) "'virtually automatic' provided that the temporary sheriff served at least 20 days during the year and remained under the age of 65 and there were no adverse circumstances relating to the fitness for office": 50F).
32. In Starrs the court held that the arrangements under which temporary sheriffs were appointed and held office were incompatible with Art. 6(1). The court's conclusions are, if we may say so, well summarised in the very full headnote (44B-E):

"… (3) that security of tenure was an important cornerstone of judicial independence but temporary sheriffs did not as a matter of law enjoy security of tenure in the normally accepted sense of the term… ; (4) that it was relevant that temporary sheriffs were very often persons who hoped to graduate to permanent employment (and current practice tended to encourage this practice), which, taken with the terms of s.11(4), might tend to encourage the perception that temporary sheriffs who were interested in advancement might be influenced in their decision making to avoid unpopularity with the Lord Advocate… ; (5) that the practice followed by the Lord Advocate in not renewing appointments only in certain classes of case was not an adequate substitute for security of tenure, being open to alteration from time to time, and the power of recall in s.11(4), in contrast to an objective guarantee of security of tenure such as existed for permanent sheriffs in s.12 of the Act, was fatal to the compatibility of the present system with Art. 6… ; (6) that the fact that a temporary sheriff might remain in practice as an advocate or solicitor did not, at least in criminal cases, give rise to doubts as to his objective impartiality or independence: his judicial oath was not a sufficient guarantee in itself, not being so regarded in the case of a permanent sheriff, but given that the only other party was the procurator fiscal, it was difficult to see why he might be inclined to decide the case in favour of the prosecution because of his own interest in another case…"

There are, certainly, some differences of emphasis as between the three judgments in the case, but with very great respect we need not for present purposes travel into their Lordships' individual reasoning.

Conclusion on the Permanent President Issue

33. We have come to a clear conclusion to the effect that these cases are categorically different from Starrs and also fall to be sharply distinguished from Findlay and Incal decided at Strasbourg. We consider that the conditions upon which PPCMs have been appointed, and held office, have involved no violation of Art. 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 military 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. (Lt Col Stone's adventitious deployment in a staff job after and because of the abolition or suspension of the PPCM regime in May 2000 following McKendry cannot realistically affect the position.) (4) The term of these PPCMs' appointments was for no less than four years (although, we accept at once, by renewal after two years in the case of Wing Cdr Chambers). (5) There have been no reports on Army PPCMs since April 1997, and in the RAF - at least so far as Wing Cdr Chambers is concerned - none in respect of the PPCM's decision-making functions as such.
34. We recall the formulation of the general approach to be taken in cases of this kind to the question whether a particular state of affairs conforms with Art. 6(1), as the European Court of Human Rights set it out in Findlay (para. 73): "First, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect." In these cases there is no question of subjective bias. We must then address the objective requirement. We are to take account of the Strasbourg jurisprudence, it being our duty to do so by force of s.2 of the Human Rights Act 1998. However our task is to give effect to the Convention rights in the setting of our domestic law. The present complaints are of an altogether different order from those which were raised and prevailed in Findlay. Mr Mackenzie's various submissions, in our judgment, cannot withstand the force of the measures and practices relating to the PPCMs which we have described. They offer, in our judgment, objective guarantees (or "safeguards": see Incal paragraph 65, which we have not set out) which in the court martial setting are well sufficient for the purposes of Art. 6(1). We would go so far as to say that Mr Mackenzie's argument involves not an application of Art. 6, but a distortion of it. The principles of Art. 6 are of vital importance in the constitutional advance in our law which the Human Rights Act 1998 represents. But to find those principles unfulfilled upon facts where, on a proper consideration of all the material, they can only be found wanting if the court adopts an undue formalism - or even something approaching a neurotic distrust - would be gravely damaging: to the objectivity of the law in general, and to the values of the Human Rights Act in particular.
35. There is as we understand it no jurisprudence to show that the "guarantees" referred to in Findlay and elsewhere must as a matter of law be formal, in some way cast in stone. Indeed the terms of paragraph 67 of the judgment in Incal, which we have earlier cited, clearly imply the contrary. This is with respect no surprise: were it otherwise, the benign and flexible principles underlying Art. 6 would be turned into constricting inflexible rules, and the doing of justice would be ill-served. We consider that in the context of our domestic jurisdiction, a useful but by no means exclusive approach to the objective requirements of Art. 6 may be to invoke the common law's reasonable man. Would the reasonable man, apprised of all the relevant facts about the particular case and the general practice, conclude that there existed any real doubt as to the court's impartiality or independence? In these cases, given the combined effect of all the considerations upon the PPCM issue which we have set out, we are firmly of the view that he would not. The position is perhaps stronger in the case of the Army than in the Royal Air Force: Lt Col Stone was appointed initially for four years, and there has been no reporting at all on Army PPCMs since April 1997. But such distinctions as existed between the respective arrangements in the two Services are certainly not sufficient to justify our arriving at differing results in the two cases.
36. In fairness to the appellants we should say a little more about the specific impact of the Incal decision. Mr Mackenzie and Mr Blades would no doubt wish to rely upon the references, in paragraph 68 of the court's judgment, to the military judge continuing "to belong to the army, which in turn takes its orders from the executive" and to his tenure being "only" four years and renewable. In our judgment Incal represents, with great respect, an excellent example of the pragmatic approach taken by the European Court of Human Rights to the judicial administration of the Convention. The merits decision that falls to be made gives full weight to the case's particular facts, just as is done in the courts of common law. In Incal the factors set out in paragraphs 67 and 68 were balanced against each other; but the court's conclusion, and what tipped the balance, is to be found in paragraph 72 and especially in the second and third sub-paragraphs (which we will not repeat at length). The case had special features. It concerned, to put the matter bluntly, a civilian convicted of and imprisoned for a political crime by a special court. There were, no doubt, particular concerns. We note the detail given in paragraph 50 of the judgment, and the observation (paragraph 72): "the Court [sc. the Strasbourg court] attaches great importance to the fact that a civilian had to appear before a court composed, if only in part, of members of the armed forces". There is, as it seems to us, a difference of deep significance between such a state of affairs and the institution of military courts to try military personnel. In his skeleton argument Mr Blades for Boyd set out a number of passages from the decision of the Supreme Court of Canada in R v Genereux (1992) 88 DLR (4th) 100. We would draw attention to what was said by Lamer CJC at 136f-h:

"In my opinion the Charter was not intended to undermine the existence of self-disciplinary organisations such as, for example, the Canadian Armed Forces... The existence of a parallel system of military law and tribunals, for the purpose of enforcing discipline in the military, is deeply entrenched in our history... An accused's right to be tried by an independent and impartial tribunal, guaranteed by s.11(d) of the Charter, must be interpreted in this context."

37. There are some postscripts in the case of Boyd. Aside from the suggestion that the PPCM had been suspended or disciplined (as to which see paragraph 22 above), Mr Blades included in his skeleton argument a general allegation of apparent bias, during the trial, on the part of the PPCM and the Senior Member, but it is unspecific and wholly unsupported. It is also said that the PPCM spoke, out of court, with the prosecutor. That might, of course, be a serious matter. On investigation however it transpires that after the court had made its finding of guilt, but before sentence, there was a short adjournment for the prosecutor to ascertain certain details of the appellant's personal circumstances, during which there was a momentary exchange when the PPCM asked the prosecutor a question about deduction of pay in relation to the appellant's housing costs. It would have been better had he not done so; but the safety of the conviction is obviously unaffected. We mention these points (which we did not give leave to argue) out of courtesy to Mr Blades and Mr Havers, who covered them in their skeleton arguments. There is nothing in them. For good measure it is convenient to add at this stage that Mr Blades also sought to allege that the uncorroborated evidence of the complainant, Sgt Graffen, was discredited. That was a matter for the fact-finding tribunal. The case was entirely properly summed up. There is nothing in this either.

(2) THE PART-TIME JUDGE ADVOCATE

38. As we have said, this issue is only raised in the Boyd case. The judge advocate who presided was Mr Gore-Andrews, a barrister in private practice at the English Bar who had acted as a part-time judge advocate since 1994.
39. This part of the appeal also, of course, engages the decision of the High Court of Justiciary in Starrs. Plainly in that case the appointment of temporary sheriffs in Scotland, and its renewal or curtailment, were in the hands of the executive, and much influenced by the Lord Advocate. But the appointment of part-time judge advocates to courts martial is done by the Judge Advocate General, who is wholly independent of the executive. His appointment, like that of High Court and circuit judges in England, is by the Queen on the recommendation of the Lord Chancellor. Part-timers are paid for out of his budget. Any question of termination of a part-timer's appointment is entirely in his hands. Likewise he alone decides whether to offer full-time appointment as judge advocate to a part-timer (In fact there is nothing to suggest that at the time of this court martial Mr Gore-Andrews entertained any ambition for appointment as a full-time judge advocate.) The executive has no hand in it. By definition, and most certainly in practice, the standards which the Judge Advocate General applies to any question relating to the appointment of part-time judge advocates are objective, judicial standards. He has no interest in anything else. Part-time appointments have been terminated on two occasions only since the present Judge Advocate General took office in 1991: each time by reason of errors made by the judge advocate in the conduct of a trial.
40. For those reasons the part-time judge advocate's lack of security of tenure cannot in our judgment be said to undermine his impartiality or independence for the purposes of Art. 6(1). The case is thus quite different from Starrs. There is, in short, simply no question of any reasonable fear or apprehension arising that the part-time judge advocate might tailor his judicial actions so as to maintain favour with the executive. The appellant's arguments on this point are without merit.

(3) LATE LEGAL AID

41. This is the second point upon which the single judge gave leave in Spear & Hastie. We can, however, deal with it shortly. On 1 September 1999 the prosecuting authority notified the decision to try the appellants at court martial. The hearing date for the court martial, 24 January 2000, was fixed on 6 October 1999. On 16 December 1999 a legal aid application on behalf of Spear was submitted to the Army Criminal Legal Aid Authority (ACLAA). The grant of legal aid in his case was notified, according to Mr Mackenzie's chronology, a week later on 23 December; though there is material in and attached to Mr Havers' skeleton to show that the offer of legal aid was made in Spear's case on the day the application was received, 16 December, and a letter of instruction sent to Mr Mackenzie's firm on 21 December. But taking 23 December as the relevant date, it is at once evident that there is no sensible complaint on the facts to the effect that Spear was deprived of a fair trial because of a late grant of legal aid, albeit that (as were told) the battalion was on block leave over the Christmas period. Whatever difficulties may later have followed in the course of the court martial, in Spear's case this point is conspicuously bad on that short ground.
42. The timetable is different in Hastie's case. An application on his behalf was submitted to ACLAA on 4 October 1999, but its resolution was held up for want of financial details being provided promptly. On Mr Mackenzie's chronology the grant of legal aid was notified in Hastie's case on 7 January 2000. We were told that in the intervening period, or at any rate some part of it when ACLAA were seeking further information about Hastie's circumstances, he was serving overseas in Kosovo. We make it clear that we attribute no blame whatever to him for the delay in the decision as to legal aid in his case.
43. Mr Mackenzie says that he took instructions from Spear and Hastie on 10 and 12 January 2000. He submits (skeleton argument, p.29): "It was not possible to prepare a case of this complexity where most of the witnesses and the place of the incident were in Germany and weigh up the issues properly in the time made available by the grant of legal aid". But if that were truly the case, Mr Mackenzie should have sought an adjournment of the court martial. He did not do so. We have looked at all the aspects of this part of the case which have been urged on us, and have concluded that the suggestion that a competent advocate could not, by virtue of the timing of the grant of legal aid, have got the case up and represented his clients properly and effectively, assisted by an adjournment if necessary, is simply hopeless.
44. We would not have considered it necessary or desirable to travel into any further detail upon this part of the case but for certain specific points raised by Mr Mackenzie arising out of what are called the "case file diaries", documents kept by the investigating officers. These are, in effect, running notes of events which happened during the investigation and include notes of what witnesses said when first seen.
45. On 12 January 2000 Mr Mackenzie asked for sight of the diaries. He was not provided with them until 24 January, the day the court martial began; and the copies then supplied were barely legible. In our view the prosecution are to be criticised for that. Good copies should have been provided earlier. Mr Mackenzie was given good copies on 25 or 26 January. This was well before the end of the trial: the summing-up began at 2 pm on 31 January. But Mr Mackenzie does not seem to have examined these good copies of the diaries until the proceedings were over and his clients convicted.
46. Mr Mackenzie now submits that two entries in the diary text which has been referred to as RMP B contained important material. First, entry 26, which was made on 5 January 1999 (it will be recalled that the alleged assault took place on 4 December 1998), records what was said by Gdsmn Bright:

"He heard Sgt Spear shouting in the corridor outside... Lane's room, he heard a lot of banging and Lane... shouting. He heard what he believed to be a number of dull thuds after which... Lane came into his room covered with blood..."

Here, says Mr Mackenzie, Bright implicates Spear only. There is no reference to Hastie. But his witness statement was expressed differently. There he implicated both appellants; as he did in his evidence before the court martial. Mr Mackenzie says that had he known of entry 26 he would have submitted that the appellants should be separately represented at their trial.

47. Secondly, entry 31, which was made on 8 January 1999 and deals with what was being said by the complainant Lane. Mr Mackenzie relies on two features. First, Lane refers to an incident with another soldier called Hampton. He states that he does not recall whether he suffered any injuries in this incident. Secondly, he describes going into Bright's room. The diary entry says (referring to Lane in the third person): "Whilst in there he was approached by... Spear who dragged him out of the room into the corridor where... Hastie was waiting..." The entry proceeds to record Lane's description of an attack upon him by both Spear and Hastie.
48. Mr Mackenzie submits that in his evidence Lane stated that he was not injured as a result of the Hampton incident; here, then, was a significant inconsistency between the diary note and his testimony which could with profit have been relied on at trial. He submits further that whereas Lane is recorded in the diary as having stated that he was dragged out of the room by Spear, in his statement and in his evidence he said that Spear and Hastie came into the room and ordered him out. These were important inconsistencies upon which Mr Mackenzie would have cross-examined Lane had he been aware of them.
49. It is surprising that Mr Mackenzie did not look into the diaries during the several days he had them as the trial progressed. If necessary he could have asked for witnesses to be recalled. But we must decide whether, in light of the diary entries which we have described, the convictions are unsafe or not.
50. At the trial a root and branch attack was, perfectly properly, launched against Lane and other prosecution witnesses by Mr Mackenzie. They were accused of lying out of a malicious desire to see the appellants convicted. Mr Mackenzie was armed with and was aware of quite a number of previous inconsistent statements. In particular, Lane had first said that he had been attacked by German citizens. All this was fair and square before the members of the court martial. The judge advocate was to state (summing-up, 6F):

"... there have been many occasions on which the attention of a witness was drawn to something he said on an earlier occasion which conflicted or it was said conflicted with the evidence he gave before you. Usually this previous conflicting statement was a statement he'd made to the police. That position was certainly reached in the case of Lane, but it applies to several other witnesses as well. I'll remind you of some of those inconsistencies when I review the evidence before you..."

And the judge advocate proceeded to do so.

51. Bright corroborated Lane's account that he was attacked by both appellants (we have not forgotten what he said as it was recorded in entry 26). A witness by name Donohoe confirmed that Lane was not injured in the Hampton incident. A witness by name Roberts told the court that he had heard Hastie apologise to Lane.
52. Looking over the whole case we are entirely confident that cross-examination on the diary, to expose the points now made by Mr Mackenzie, would not have made any difference to the outcome of this trial.
***
53. Since this judgment was completed in draft the Registrar has received two letters from Mr Mackenzie. The first is dated 1 December 2000, and indicates that Mr Mackenzie had recently learned that before appointment to the High Court Bench I was for seven years Junior Counsel to the Treasury, and as such acted on behalf of the Ministry of Defence. He suggests that this court should have "declared Lord Justice Laws' interest so that the appellants through me could express any objection to the constitution of the Court".
54. Mr Mackenzie's second letter is dated 4 December 2000. In it he seeks an order that his clients' appeal be heard afresh before a new court. He refers again to my appointment as First Junior Treasury Counsel, but relies also on an observation made by me in the course of argument. He records it thus: "I have a wholly unorthodox fear, which I am sure I am not allowed to voice or even entertain, that Convention rights bear some similarity to iatrogenic disease: I suspect that until these points were taken fuelled by the Convention, nobody dreamt of supposing that there was unfairness in the President system…" Mr Mackenzie says that I cannot be perceived as an impartial judge for the purposes of Art. 6(1).
55. We have, of course, all three considered this correspondence. My appointment as First Junior Counsel to the Treasury, Common Law, is a matter of public record. We assume that Mr Mackenzie's complaint based upon it is intended to suggest an appearance of bias on my part. If so, we regard it as wholly unrealistic. Upon his appointment to the Bench, Treasury Counsel's connections with previous government clients at once become historic only. That is the expectation of the profession, the Bench, the public, and the previous clients themselves. This is as well settled as any convention of the law that comes to mind. There is simply no question of such an earlier connection giving rise to anything approaching a reasonable apprehension of impartility.
56. As regards my comment in court so far as it is correctly recorded – I am not sure that the words set out are precisely accurate, it is commonplace for judges to make comments responding to submissions being made. The value of oral procedures would be reduced if that were not done. There can be no sensible basis for the suggestion that such a passing observation in the course of argument represents, or might reasonably appear to represent, anything remotely approaching a settled or even provisional view of the merits of the case in hand. No point was sought to be made about it at the time. There is nothing in this either.
57. Each of these appellants had a fair trial, in conformity with the requirements of the common law and those of Art. 6(1) of the Convention, and in our judgment their convictions are safe. Their appeals against conviction are accordingly dismissed.