England and Wales Court of Appeal (Criminal Division) Decisions

Skuse, R. v [2002] EWCA Crim 991 (3rd May, 2002)

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT MARTIAL APPEAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		3 May 2002

Lord Justice Rix :

1. This is for the present the latest of a line of cases which has questioned the compatibility of English courts martial with article 6(1) of the European Convention of Human Rights (the “Convention”). The focus of the appeal on this occasion is as to the independence of the judge advocate at a naval court martial. No previous authority has had to consider the particular role of a naval judge advocate. In R v. Boyd [2001] 1 QB 804 (reported as R v. Spear and another, R v. Boyd) this court determined that the lack of security of tenure of a part-time judge advocate in an RAF court martial did not undermine his impartiality or independence for the purposes of article 6(1). In the still more recent decision of the European Court of Human Rights in Morris v. United Kingdom (26 February 2002) the role of the judge advocate in an army court martial was not even challenged. However, judge advocates in the army and the air force are appointed from the ranks of civilian barristers in private practice, whereas judge advocates in the navy are barristers who are also serving officers. The question on this appeal is whether in all the circumstances of this case that makes a critical difference. In all three services the judge advocate essentially fulfils the role of a judge at a civilian criminal trial conducted with a jury.
2. The appellant’s court martial was heard at HMS Drake, HM Naval Base, Plymouth on 19/21 October 1999, about a year before the Human Rights Act 1998 (the “Act”) came into force, as it did on 2 October 2000. The appellant was represented by solicitors and counsel. He was found guilty of one offence of unlawful possession of a class A controlled drug (methadone) and one offence of unlawful possession of a class B controlled drug (cannabis). He was sentenced to 6 months’ military detention and dismissed from Her Majesty’s service. On 20 December 1999 he presented a petition against sentence to the reviewing authority, which was refused. He did not pursue the matter of sentence to an application for permission to appeal. On 8 August 2000, shortly before the Act came into force, he applied to this court for permission to appeal against conviction. The Registrar granted the necessary extension of time (7 months) and Morland J subsequently granted permission to appeal.
3. As developed at the hearing, the essential ground of appeal was the comparatively narrow one that the judge advocate appointed at the court martial, Lieutenant Commander Blain, was not clearly separated from the naval system so as to be independent of the naval executive. There was no wider attack on the system of naval courts martial. As described below, the position of the naval judge advocate has changed in certain respects since the date of the appellant’s court martial. On behalf of the appellant, Mr David Howell was not concerned to say that the contemporary system is subject to the identical attack that he levelled against the system in place in October 1999. On behalf of the Crown, Mr Philip Havers QC was on the other hand anxious to place both systems before us for our consideration.

Article 6(1)

4. Article 6(1) 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.”

The offences charged

5. The basic facts relevant to the offences charged at the court martial can be briefly stated. In April 1998 the appellant, MEM (Marine Engineering Mechanic) Skuse, then serving on HMS Cumberland, was on shore leave in Amsterdam. There had been talk of the ease with which drugs could be bought in Amsterdam, although it was agreed that it would be stupid to bring anything on board. The evidence against Skuse was that he had shown fellow crew members a small cellophane packet of some substance which looked like rolling tobacco or cannabis, both ashore and then later on board; had spoken of putting it in a jar and of hiding the jar in the port gland space, and later had produced a small coffee jar covered in insulating tape. In the event senior members of the crew were alerted. Skuse was woken up in his bunk in the early hours and there was a search of the port gland space, but nothing was found there. His bunk space was not searched or made secure at that time. He was arrested and removed from the ship. Later at about 2 pm on that day his bunk was searched and in his pillow was found a taped coffee jar. Upon analysis its contents were found to be cannabis and methodone, and Skuse’s fingerprints were found on the tape on the outside of the jar. His urine sample was clear and he gave an explanation for his fingerprints. In his interview and in his evidence Skuse said that he did not buy drugs in Amsterdam, had never had drugs in his possession either ashore or on board, and that he was “dead against drugs”.
6. No criticism has at any time been made of the judge advocate’s conduct of the court martial, of any directions or rulings given by him, or of his summing up in general. A full transcript of the proceedings was taken, and that was reviewed by the Judge Advocate of the Fleet, a circuit judge with a reviewing function (further described below) who has the power to recommend to the Admiralty Board that a conviction be quashed or that any finding be altered or sentence substituted. In the present case his review is dated 15 September 2000 and thus appears to have been drawn up after the presentation of Skuse’s application for leave to appeal. It includes the following passage:

“The Judge Advocate directed the court accurately and comprehensively as to the law, and summed up the evidence with clarity and fairness. No criticism is made in the petition of the summing-up, and none could be made.”

Nor has there been any criticism of that advice. It is not said, therefore, that Skuse did not have a fair trial.

Strasbourg and English authorities

7. Article 6(1) nevertheless contains the separate requirement that the trial be conducted by “an independent and impartial tribunal”. The critical issue for the present appeal, therefore, is whether the role of Lieutenant Commander Blain, the judge advocate at Skuse’s court martial, was such as to undermine the independence of the tribunal as a whole. For this purpose it will be necessary to consider any aspect of that role which either supports or detracts from his and the tribunal’s independence. Thus this court has heard competing submissions which have ranged over such matters as the manner in which both at and since the relevant time naval judge advocates are appointed, either in general or to a particular court martial; their lines of responsibility; the means by which they may be influenced by or insulated from the naval executive; the length and security of the tenure of their office; training, pay, performance, assessment and promotion; and in general factors which may go to support or guarantee independence.
8. Such an examination reflects the leading principles laid down by Strasbourg jurisprudence. Thus in Findlay v. United Kingdom (1997) 24 EHRR 221 the European Court put the essential enquiry in these terms:

“73. The Court recalls that in order to establish whether a tribunal can be considered as “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 independence.

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 objective impartiality are closely linked and the Court will consider them together as they relate to the present case.”

And in Morris v. United Kingdom the European Court, having restated those principles, immediately continued as follows:

“59. The Court notes that the practice of using courts staffed in whole or in part by the military to try members of the armed forces is deeply entrenched in the legal systems of many Member States.

It recalls its own case-law which illustrates that a military court can, in principle, constitute an “independent and impartial tribunal” for the purposes of Article 6 § 1 of the Convention. For example, in the above-mentioned Engel and Others case, the Court found that the Dutch Supreme Military Court, composed of two civilian Justices of the Supreme Court and four military officers, was such a tribunal. However, the Convention will only tolerate such courts as long as sufficient safeguards are in place to guarantee their independence and impartiality.”

9. In these circumstances, to place in focus the factual enquiry which we will have to undertake in the present appeal, it seems to us first necessary to review as briefly as possible the course which the leading authorities and the reactions to that jurisprudence have taken.
10. Findlay is for present purposes the leading case in the European Court. It was concerned with the role of the “convening officer” prior to the changes effected in the UK by the Armed Forces Act 1996 (the “1996 Act”). Those changes had already been put in train before the European Court’s judgment in Findlay. The essential vice of the convening officer was that he combined in his role a concentration of the functions of the authorities which had to decide (1) whether a case should be referred for consideration of a prosecution at all, (2) whether the case should indeed be prosecuted, and (3) where a case was prosecuted, how the tribunal for a court martial should be selected. In the 1996 Act the role of the convening officer was abolished and his functions were split between separate and independent authorities. We are not concerned in this appeal with the role of the convening officer, and this account only provides the background to the developing jurisprudence.
11. It is to be observed nevertheless that in Findlay, which concerned an army court martial, the judge advocate had been a barrister appointed to the court martial from a pool appointed to the Judge Advocate General’s office by the Lord Chancellor. The Judge Advocate General was appointed by and was answerable to the Queen and advised the Secretary of State for Defence on military law and the court-martial system. The navy has differed and continues to differ from the army and the air force both before and after the 1996 Act, for now, as then, a navy judge advocate is a serving officer, albeit qualified as a barrister. In Findlay the UK did not contest that the system then in force, before the 1996 Act came into effect, did not provide an independent and impartial tribunal. It is relevant to point out, however, that the European Court regarded the role of the army judge advocate as a safeguard, but one that in the circumstances did not go far enough. Having pointed out earlier in its judgment that the judge advocate would sum up the relevant law and evidence, but did not take part in the court’s martial deliberations and was not a member of it, even though he could advise it in private on general principles in relation to sentence (at paras 44/45), the Court reasoned as follows:

“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 proceedings. 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).”

12. In Spear and Boyd this court had to deal with appeals which had arisen under the amended legislation concerning army and air force courts martial. The complaints on this occasion concentrated on the roles of the permanent president of courts martial (“PPCM”) and of the judge advocate. The PPCMs were permanent presidents whose full time occupation, during the period of their appointment, was to preside at courts martial. The PPCMs in question had been appointed to their office as their last posting, for four years and two years (extended for two years) respectively, and had no prospects of further promotion. No reports were made of them in their office as PPCM, they worked outside any chain of command, and from home (at paras 21/23). Laws LJ, giving the judgment of this court emphasised those facts (at para 33) as critical to its decision that there was no violation of article 6(1). Nevertheless, it had been submitted that because there were no objective regulatory provisions governing appointment, therefore they should be regarded in the same way as the temporary sheriffs in Starrs v. Ruxton 2000 SLT 42; and that because the PPCMs were of “medium rank”, they were not immune from “general Army influence”. As for the first point, this court regarded their length of tenure as distinguishing the PPCMs from the sheriffs in Starrs’ case, and the absence of formal regulatory provisions as therefore irrelevant. As for the latter point, Laws LJ said (at para 28) –

“it is simply patronising to suggest that an officer of the rank of lieutenant-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”.

13. Laws LJ also deprecated excessive formalism, or any requirement that the “guarantees” required by Strasbourg jurisprudence “must as a matter of law be formal, in some way cast in stone”, adding (at para 35):

“were it otherwise, the benign and flexible principles underlying article 6 would be turned into constricting inflexible rules, and the doing of justice would be ill-served.”

14. As for the role of judge advocate, Laws LJ dealt with this at paras 38/40. This point only arose in Boyd, where the judge advocate in question was a barrister in private practice who had acted for a number of years as a part-time judge advocate, rather than a judge advocate appointed full-time to the Judge Advocate General’s office, which appears to have been the case considered in Findlay. Laws LJ said this:

“39. This part of the appeal also, of course, engages the decision of the High Court of Justiciary in Starrs v Ruxton 2000 SLT 42. 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 the 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 by 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 article 6(1). The case is thus quite different from Starrs’s case. 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 defendant’s arguments on this point are without merit.”

15. Spear and Boyd were decided in January 2001. Six months later this court, again presided over by Laws LJ, considered further points in R v. Williams and others [2001] EWCA Crim 2311. For present purposes we need only consider the “root and branch attack on the institution of the court-martial” to the effect that courts martial are so influenced by factors of service discipline and morale that inevitably they entertain a prosecution bias upon issues of guilt or innocence (paras 26 and 38). That submission was rejected. Service factors and the imperatives of military discipline and morale were as much aspects of the public interest in relation to both the decision to prosecute and to the trial process itself in the case of courts martial as analogous factors were in civilian life. Thus Laws LJ reasoned (at paras 43/45):

“In general there is a particular importance in the public interest in bringing wrongdoers to book who abuse positions of trust or of responsibility towards others, or whose wrongdoing inflicts damage upon institutions which exist to serve the public…Of course, if there were a reasonable apprehension that Service factors tended to promote the chances of a conviction, and so were an added and illegitimate feature giving a fair wind to the prosecution’s case over and above the evidence, that would give muscle and sinew to Lord Thomas’ argument. But if such factors are to be perceived as an aspect or function of the public interest, as we believe they are, they are much more than a manifestation of institutional loyalty or corps spirit, and they will themselves require that the court-martial process should be and be seen to be fair and impartial, and so far as possible achieve accurate results; otherwise military personnel, and the public outside, will alike lose confidence in it…The proposition that the involvement of service factors as considerations in the court-martial process leads, case by case, to an actual or potential perceived bias in favour of the prosecution case is a non sequitur; and so far as distinguished judges in other jurisdictions may have taken a different view, with great deference we disagree with them.”

16. Only a few weeks before the hearing of this appeal the European Court published its decision in Morris v. United Kingdom. That case concerned a young member of the Life Guards who was charged with being absent without leave. Although he pleaded guilty at his court martial (and was sentenced to dismissal and nine months’ detention), he sought first review and then leave to appeal against conviction as well as sentence on the grounds that his defending officer had no legal training and had failed to present a defence of duress or mitigation of sentence arising out of an alleged assault prior to his going absent. His court martial had taken place in May 1997 pursuant to the 1996 Act. His application for leave to appeal was refused by the single judge in July 1997. In his application to the European Court he complained that his court martial had not been fair due to the actions of both the prosecuting authorities and his own defending officer; and that he had been denied a right to free legal assistance. As to those specific complaints, the Court found that there had been no violation of article 6. However, his primary complaint was that he had been denied a hearing before an independent and impartial tribunal on account of structural defects in the court martial system itself. In particular he complained that the appointment, future appointment and promotion of the commanding, defending and prosecuting officers sitting on the court martial depended at least in part upon the Military Secretary, a subordinate of the Adjutant General, who was himself directly subordinate to the Defence Council. He submitted that to comply with article 6(1) courts martial had to be independent of the army as an institution, particularly of senior army command (paras 39/40).
17. It had been agreed between those representing Skuse and the Crown in this appeal that Morris would not be relied on for the purpose of extending the grounds of his appeal. Mr Howell nevertheless submitted that he was entitled to rely on Morris for the purpose of supporting his limited ground of appeal in respect of the role of the naval judge advocate, and Mr Havers did not demur from that. For present purposes, therefore, it is probably sufficient to concentrate on what the Court said, in the context of its general conclusions, with specific regard to the roles of the PPCM and the judge advocate. As for the PPCM, the argument was very much a rerun of the position in Boyd. Thus Morris highlighted the lack of formal security of tenure of PPCMs, indicating that the Military Secretary had the power to terminate their appointment at any time and that their appointment and the nature of their role were not governed by any statutory or regulatory provision and that there was nothing therefore to protect them from outside influence (para 42). HM Government, on the other hand, highlighted that the PPCM concerned was in his last post before retiring from the army, was outside the chain of command, and worked from home; and that there was no record of a PPCM ever having been removed from his post prematurely (para 54). On this aspect of the case the Court essentially accepted the Government’s submissions and the reasoning of Laws LJ in Boyd, reinforced by its own decision in Engel v. The Netherlands (18 June 1976, Series A no 22) where the military members of the Dutch Supreme Military Court had been regarded as independent and impartial on much the same grounds. Indeed, it may be said that the Court went further, so as to regard the PPCM as himself a “significant guarantee” of independence in this passage (at para 69):

“However, the Court finds that the presence of the Permanent President did not call into question the independence of the court martial. Rather, his term of office and de facto security of tenure, the fact that he had no apparent concerns as to future army promotion and advancement and was no longer subject to army reports, and his relative separation from the army command structure, meant that he was a significant guarantee of independence on an otherwise ad hoc tribunal.”

18. As for the judge advocate, as in Findlay there had been no complaint of his lack of independence. It was acknowledged that as a civilian with an enhanced role under the 1996 Act he was also an “important guarantee, just as the presence of two civilian judges in the Dutch Supreme Court was found to be in the above-mentioned Engel case” (para 71).
19. Nevertheless, the European Court ultimately concluded that the system there under consideration was not compatible with article 6 since

“the presence of these safeguards was insufficient to exclude the risk of outside pressure being brought to bear on the two relatively junior serving officers who sat on the applicant’s court martial. In particular, [the Court] notes that those officers had no legal training, that they remained subject to army discipline and reports, and that there was no statutory or other bar to their being made subject to external army influence when sitting on the case. This is a matter of particular concern in a case such as the present where the offence charged directly involves a breach of military discipline. In this respect, the position of the military members of the court martial cannot generally be compared with that of a member of a civilian jury who is not open to the risk of such pressures” (at para 72).

20. The Court finally considered whether the opportunities for review and appeal were additional safeguards which rectified the position, and concluded that they were not (at paras 74/76). Even though the reviewing authority might be argued to serve the defendant’s interests because of its power to quash conviction or sentence, the Court was concerned that it also had power to reach any finding of guilt which could have been reached by the court martial or to substitute any sentence which would have been open to the court martial, not being in the authority’s opinion more serious than that originally passed. The Court was particularly concerned by that latter discretion. As for appeal (it will be recalled that Morris’s application did not get beyond the single judge stage) the Court concluded (at para 76):

“The Court is of the view that the fundamental flaws which it has identified were not corrected by the applicant’s subsequent appeal to the Court Martial Appeal Court, since that appeal did not involve any rehearing of the applicant’s case but rather determined, in the form of a decision which ran effectively to two sentences, that leave to appeal against conviction and sentence should be refused.”

21. Three general points may be taken from this review of authorities. First, in the case of the army and air force, the use of civilian judge advocates, even those appointed to the Judge Advocate General’s office, was regarded as a strength rather than a weakness of the system. The position of a judge advocate who has spent his career in the service, as in the navy system, has not, however, so far been considered. As for the general question of the involvement of service personnel in the court martial system, the position may range from the case of a figure such as the PPCM, who is regarded as a significant guarantee of independence, to the case of junior members of an ad hoc tribunal, who may be regarded as a fundamental flaw. This point leads directly on to the second, which is that in this area, as in Strasbourg jurisprudence generally, the principles are applied in a way which is regarded as and is truly “fact sensitive”. Laws LJ adverted to this in both Spear and Boyd (at para 36) and Williams where (at para 27) he cited from Hakansson v. Sweden (1990) 13 EHRR 1 at para 46:

“…the Court has to confine itself, as far as possible, to an examination of the concrete case before it. It is accordingly not called upon to review the system of the 1979 Act in abstracto, but to determine whether the manner in which this system was applied to or affected the applicants gave rise to any violations of the Convention.”

22. The third point is closely related to the second, and is this. In the context of article 6(1) the issue of independence and impartiality cannot be understood separately from the matter of guarantees. This is stressed in Findlay (at para 73) and in Morris repeatedly and especially at para 59 (see at para 8 above).
23. Finally, in this review of English and Strasbourg jurisprudence, the question arises as to how the independence and impartiality of a tribunal should ultimately be tested. We have mentioned the points that the enquiry is fact sensitive, and that the test cannot be applied without taking into account guarantees. It is of course also objective. In this context the ultimate test was considered by Laws LJ in Williams at paras 24/25. Having considered R v. Gough [1993] AC 646 and In re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700, Laws LJ concluded with the following citation from the judgment of Lord Phillips MR in the latter case at 726h/727c:

“85. When the Strasbourg jurisprudence is taken into account, we believe that a modest adjustment of the test in R v. Gough is called for, which makes it plain that it is, in effect, no different from the test applied in most of the Commonwealth and in Scotland. The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.”

Laws LJ continued:

“25. This learning seems to us to demonstrate that the municipal approach to questions of apparent bias is not perceptibly different from that taken in Strasbourg to issues of impartiality arising under Article 6(1), and this is the basis upon which we will approach these cases. As Mr Havers submitted in reply, it is necessary to build the ECHR requirement of objective guarantees into the test ultimately formulated in Medicaments. This involves no intellectual legerdemain: the straightforward position will be that once a suggestion of bias arises the “fair-minded and informed observer” will look for guarantees, outward and visible signs of the tribunal’s impartiality; and if he finds none, or none sufficient, he may be unable to rule out bias.”

R v. Généreux

24. We should also mention here an authority which, although neither part of English or Strasbourg jurisprudence directly, is there referred to, and has been strongly relied on by Mr Howell: the decision of the Canadian Supreme Court in R v. Généreux (1992) 88 DLR (4^th) 110. The Supreme Court had to apply section 11(d) of the Canadian Charter of Rights and Freedoms, which guarantees trial by an independent and impartial tribunal, and decided that the system of court martial which it was there considering failed the test. In its more general observations it has not been followed in England: see Williams at paras 29, 40/41 and 45. Of particular importance to the present appeal, however, is what was there said about the role of a judge advocate. The status and role of the Canadian judge advocate are described in the judgment of Lamer CJC at 140: essentially they are members of the legal branch of the forces who have undergone special training to qualify as military judges; they are appointed by the judge advocate general to positions within his office for a period controlled by him; from there they may be appointed by him to preside (as a judge does in a civilian court where there is a jury) at individual courts martial; they may be reposted to other legal duties within the judge advocate general’s office or elsewhere; like other members of the court martial, they take an oath before the commencement of the proceedings. The judge advocate general himself is “part of the executive…Indeed…serves as the agent of the executive in supervising prosecutions” (at 142e). Against that background, the Supreme Court considered that the judge advocate did not have sufficient security of tenure to be independent, since appointed solely on a case by case basis:

“As a result, there was no objective guarantee that his or her career as military judge would not be affected by decisions tending in favour of an accused rather than the prosecution. A reasonable person could well have entertained the apprehension that a legal officer’s occupation as a military judge would be affected by his or her performance in earlier cases…[or] that the person chosen as judge advocate had been selected because he or she had satisfied the interests of the executive…An officer’s position as military judge should not, during a certain period of time, depend on the discretion of the executive” (at 142f/143a).

25. In Morris (at para 35) the European Court cited similarly from the judgment of Lamer CJC.

The evidence relating to naval judge advocates

26. In the light of Skuse’s appeal and of this jurisprudence the Crown prepared and served evidence in statement form relating to the way in which naval judge advocates are appointed and operate. No objection was raised by Mr Howell to the admission of such evidence, nor did he challenge any of it and we therefore gave permission for it to be admitted.
27. The evidence covered the role of the judge advocate in general and the position of Lieutenant Commander Blain in particular, and it also extended to changes made in the system since the time of Skuse’s court martial. We of course are concerned with the situation as it existed at that time.
28. In the navy, unlike the other two services, the role of what is there called the Judge Advocate General is divided between two positions, the Judge Advocate of the Fleet (“JAF”) and the Chief Naval Judge Advocate (“CNJA”). We have already referred to the JAF (at para 6 above). That office is presently held by HH Judge Sessions, a circuit judge since 1992 based at Chichester Crown Court. He was appointed to the office of JAF by the Queen in July 1995 on the recommendation of the Lord Chancellor, to whom he is responsible. He is entirely independent of the executive. His office and functions are recognised in section 73 of the Naval Discipline Act 1957 (the “NDA 1957”) which provides:

“73. Nothing in this Part of this Act shall prejudice the exercise by the Judge Advocate of Her Majesty’s Fleet of his functions of considering and reporting on the proceedings of courts-martial and disciplinary courts, or any other of his functions in relation to such courts.”

His prime responsibility is to review all courts martial, save for those in which the accused pleads guilty, so as to be able to advise the Admiralty Board, in effect a Rear Admiral appointed to the post of Naval Secretary, to whom the Board’s functions in this respect have been delegated, whether or not they have been properly conducted according to law. If, in his opinion, they have not been so conducted, he has the powers to which we have referred above to recommend to the Board that the conviction be quashed or any finding or sentence altered. These powers are in addition to an individual’s right, subject to leave from the single judge, to appeal any conviction or sentence to this Court. That right has been exercised in the present case and Skuse could, as part of his appeal, have asked this Court to scrutinise any allegation of error or unfairness on the part of the judge advocate: but, as stated above, there is no criticism of the judge advocate’s conduct of the court martial.

29. The CNJA, on the other hand, is a service appointment. He is appointed by the First Sea Lord on the advice of the Naval Secretary and must be a barrister of suitable experience and rank. He is responsible to the Second Sea Lord through his Chief of Staff. His terms of reference describe (and at the material time described) his primary purpose as to be the principal adviser within the Royal Navy on all matters of law, including naval, criminal, employment, maritime and international law, and his secondary purpose as “To ensure that sufficient naval officers are trained as barristers and thereafter appropriately appointed to legal billets to provide the legal services required by commands, including Headquarters”. Among his “principal tasks” is to assist the JAF and consult with him on matters of law and legal policy; to select officers for legal training and to supervise their studies. Among his “ancillary duties” is to sit as judge advocate at complex courts martial and “to appoint suitable naval barristers to sit as judge advocates”. His responsibility for the appointment of judge advocates to courts martial is also recognised in section 53B(1) of the NDA 1957 (as amended by the 1996 Act) which refers to “the judge advocate appointed by or on behalf of the Chief Naval Judge Advocate to be a member of the court-martial”.
30. Section 53B(2) requires any barrister judge advocate to have been qualified for at least five years. That is the only statutory requirement. However, as a matter of policy reflected in the CNJA’s terms of reference the navy has for many years appointed only serving officers as judge advocates. The current CNJA, Commodore Jeffrey Blackett, who was appointed to his office on 4 July 2000, in his statement describes the reasons for that policy as follows:

“…because they understand the particular and unique way of life of the Royal Navy, gained through their own operational experience. They can advise and direct the court in terms which reflect their detailed knowledge of the Service, and which therefore enhances the credibility of their role in the eyes of all the parties involved.”

31. Although Commodore Blackett does not expressly say this, we infer that among the operational experience which may be directly relevant to many naval courts martial is the judge advocate’s experience of the dynamics of life on board ship as well as of handling and navigation of ships in the service context.
32. Judge advocates are in the first place appointed to their role by a process which may be described as “ticketing”. Once ticketed, they gain experience by “sitting in” with an experienced judge advocate and then proceed to cases where the accused pleads guilty, so that only sentencing and no trial of guilt is involved. It is for the CNJA to assess when the judge advocate is ready to officiate in contested cases. At that point judge advocates are appointed to individual cases in the name of the CNJA and by his letter of appointment (see section 53B) but in practice there is no selection, other than to ensure that the judge advocate is outside the chain of command of the accused as required by section 53C(4) of the NDA 1957, for the CNJA appoints by rota on a “cab rank” principle. That is to say a list is kept by the naval courts administration office of ticketed judge advocates, and the name at the top of that list is appointed (subject to his being qualified as outside the chain of command of the accused) to each next pending court martial requiring a judge advocate to be appointed to it. That name then goes to the bottom of that list, until he rises by turn to the top again.
33. Candidates for ticketing as a judge advocate are selected by a process which involves both the CNJA and the JAF. The process is driven by the CNJA for he regularly assesses the experience and suitability of those who are appropriately qualified, using standard criteria for judicial qualities. The CNJA then consults with the JAF as to suitability for appointment. The JAF will have had an opportunity to assess the qualities of such candidates from his review of the records of proceedings in which the candidates have been involved in a prosecution or defence role. With the JAF’s agreement, the CNJA would write to inform a successful candidate of his appointment.
34. Appointment, ie ticketing, is for an undefined period. A judge advocate, once ticketed, remains on the list of judge advocates until he leaves the service or voluntarily resigns from the list. No judge advocate has ever been removed from office for any reason, although some have voluntarily withdrawn because they have decided to concentrate on operational appointments within the navy. If the question ever arose, grounds for removal would be precisely the same as those for a civilian judge, and the decision would be taken by the JAF, on the recommendation of either the CNJA or the JAF.
35. Judge advocates while in office are responsible solely to the JAF for the performance of their professional duties in courts martial. As stated above, the JAF reviews all contested courts martial. In advising the Admiralty Board the JAF will comment on the judge advocate’s handling of the proceedings and his summing up. He may also pass professional comments about judicial performance to the CNJA. At the time of Skuse’s court martial, there was a haphazard practice whereby the CNJA might provide a judge advocate’s reporting officer, at that officer’s request, with a synopsis of the JAF’s comments on the judge advocate’s performance. Reporting officers compile appraisal reports which are relevant to suitability for promotion. That practice has ceased under Commodore Blackett. Judge advocates receive no additional or separate pay for their duties in such office. Nor is their pay or promotion affected by their performance or status as judge advocates. Indeed, their performance as judge advocates is not now assessed at all by the executive (cf the earlier haphazard practice described above). The relevant Queen’s regulation (3630) as of January 2002 now reads (but did not, as we understand, so read at the relevant time):

“4. The Judge Advocate of the Fleet is solely responsible for reporting on the professional performance of judge advocates in the conduct of their duties in courts-martial trials. No other personal report, assessment or other document is to be prepared or used to determine whether an officer conducting judge advocate duties is qualified to be promoted, or is qualified or suited for particular appointments or training. Where judge advocates are appointed to general appointments, or whilst carrying out their general duties, nothing in this article shall prevent the appropriate reports being prepared on them concerning their conduct of those duties, for promotion, appointing or training purposes.”

A further amendment has been drafted to take effect in May 2002 under which the first sentence of that paragraph has been deleted and the paragraph begins “No personal report…” etc.

36. Since the 1996 Act’s amendments the Naval Prosecuting Authority is an entirely distinct authority (see section 52H of the NDA 1957). Judge advocates cannot serve as or in that Authority after they cease to be judge advocates. Under Commodore Blackett the earlier practice which permitted a ticketed judge advocate to be asked to prosecute at a court martial (at which he was not of course officiating as a judge advocate) has now ceased.
37. Judge advocates may be serving in either legal or non-legal appointments. Those serving in legal appointments sit as judge advocates on average for about 20 days each year, and those serving in non-legal appointments will normally sit for less.
38. At the court martial the judge advocate and all members of the “board” (ie those who equate to jurors until a finding on guilt or innocence is reached) each take appropriately worded judicial oaths. The judge advocate sits apart from the board members and has no contact with them, other than appears on the record during the proceedings, either during or outside the hours of sitting. Only following a finding of guilt will the judge advocate sit together in private to determine sentence.

The evidence relating to Lieutenant Commander Blain

39. Lieutenant Commander Blain served in the Royal Navy from 5 January 1983 until 30 September 2000. He was appointed a judge advocate on 9 November 1995 by Commodore Blackett’s predecessor as CNJA, Captain Humphrey, who served in that role from August 1995 to July 2000. The letter of appointment was before this court. Judge Sessions and Captain Humphreys are confident that they consulted on this appointment, although this is more reconstruction than recollection. At the time of that appointment Lieutenant Commander Blain had been called for four years rather than the minimum five years now required pursuant to section 53B of the 1996 amendment to the NDA 1957. Moreover, under the current regime he would not have been appointed because he was not a Commander.
40. On 16 April 1999 Lieutenant Commander Blain was appointed as judge advocate for Skuse’s court martial. At that time the court martial was due to take place in June 1999, but it was delayed. In the meantime, on 2 July 1999 Lieutenant Commander Blain wrote to the Naval Secretary to apply for voluntary retirement as of 30 September 2000. On 19 July 1999 the Naval Secretary replied, approving his application. Therefore, when Skuse’s court martial in fact took place, in October 1999, Lieutenant Commander Blain was due to retire within the year.
41. Lieutenant Commander Blain was selected as judge advocate for the court martial because he was outside the chain of command of Skuse and was the next available judge advocate on the list maintained by the naval courts administration office to officiate at a trial on the relevant dates, ie on the cab rank principle described above. As the record shows, at the outset of the trial Skuse’s friend (ie counsel) was asked if he had any objection to the composition or constitution of the court, and the reply was No. The respective oaths were then taken. Lieutenant Commander Blain then addressed the court as to the respective roles of himself as judge advocate and of the board. In doing so he informed the board that if they had any questions for him during the course of the trial, they must ask such questions in open court in front of the accused: “That means, Sir, that now the trial has commenced we will have no contact with each other outside this courtroom”. Nor did they.
42. Lieutenant Commander Blain was aware that the JAF had from time to time commented on his performance as judge advocate, so as to provide him with guidance and feed-back. In the instant case, the JAF made no comment to the CNJA; but a check of his annual appraisal reports revealed some haphazard remarks. In the year covering the Skuse court martial his appraisal report contained the following comment, which must have derived from observations of the CNJA and/or the JAF:

“Blain is doing well as a Judge Advocate, effectively applying his extensive legal knowledge. He has made good progress in developing his judicial bearing and presence in court and as he gains in experience is proving capable of handling complex and difficult tasks.”

43. During his period as a judge advocate, he sometimes appeared as a representative of the parties, both in the role of prosecutor and in the role of accused’s friend.

Submissions

44. On behalf of Skuse, Mr Howell submitted that, at any rate at the relevant time, judge advocates such as Lieutenant Commander Blain were not independent or were not sufficiently independent of the executive, and thus could, in the eyes of a reasonable and fair-minded observer, have been influenced in their conduct of the trial. The potential for such influence was endemic in the whole structure of the role of judge advocates. They were naval barristers, who had been trained in the service, had undertaken prosecution advocacy even during their period as judge advocates, were subject to appraisal reports on the basis inter alia of their professional work as judge advocates, and, even if responsible to the independent figure of the JAF, had been selected for their role, trained and appointed by the CNJA, who was very much a part of the navy’s executive branch. They were subject to no formal protection against executive influence, and had no security of tenure. They were appointed to individual courts martial on a purely ad hoc basis. Their position was quite unlike that of their counterparts in the army and the air force, and the CNJA played a role quite unlike that of the Judge Advocate General in the other services. The recent changes effected during Commodore Blackett’s period of office as CNJA may be improvements, but they come too late to be relevant to Skuse’s court martial.
45. On behalf of the Crown, on the other hand, Mr Havers has stressed the narrowness of the appeal’s attack and the safeguards amounting to guarantees of independence built into the role of the judge advocate, even ignoring recent changes. He emphasised the importance of the wholly independent figure of the JAF at all stages of the judge advocate's career, beginning with ticketing, continuing with review and ending, if the question ever arose which it had not, with removal. Selection for a particular court martial, as in this very case, depended solely on the cab rank principle subject to the positive requirement that the judge advocate had to be outside the accused’s chain of command. Pay and prospects of promotion were irrelevant to the performance of a judge advocate’s duties. Whatever assessments had in the past haphazardly found their way into reporting officers’ appraisals, the fact was that at the time of the court martial Lieutenant Commander Blain was due to retire within the year. As for the CNJA, he was not properly to be regarded as part of the executive, for he was not part of the discipline or command structure, and was independent from the prosecution authority. He was rather to be regarded as part of the “court” structure of the service.

Discussion and decision

46. This appeal has been argued against the background of a decision of this court (in Williams) that the essence of a system of military justice whereby decisions are taken by a board of serving officers is not made incompatible with the independence and impartiality required by article 6(1) by reason of fears of institutional loyalty; and a decision of the European Court (in Morris) that the Convention will only tolerate such a system as long as sufficient safeguards are in place to guarantee independence and impartiality. This appeal has also been argued in what might be said to be a somewhat academic vacuum in two respects. One is that it is only the role of the judge advocate that is under review, important as that may be. In that connection it has to be assumed that there is no other complaint that can be made. The other is that it has not been suggested that the judge advocate in question has erred in any way in his conduct and summing-up at the trial or that there is any complaint that can be made against him in terms of his handling of the court martial.
47. The first matter which Findlay (at para 73) and again Morris (at para 58) direct attention to is “the manner of appointment of its members and their term of office”. In the case of judge advocates, appointment is by the CNJA after consultation with the JAF and their term of office is undefined, but in practice limited only by retirement either from the service as a whole or by voluntary withdrawal to concentrate on operational appointments. The fact that appointments to individual courts martial are ad hoc is irrelevant given that that is done on a rota or cab rank basis by reference to a list which is kept by the naval courts administration office. Subject, as we would understand it, to an initial period when a new judge advocate is gaining experience and is not considered as available for contested trials, and subject also to the important statutory requirement that a judge advocate must be outside the accused’s chain of command, appointment is essentially a matter of listing. The naval system is therefore quite unlike the system of entirely ad hoc part-time judge advocates in the army and the air force in two respects. The first, which informed the decision of this court in Boyd (see para 14 above), is that in those services the judge advocates are civilian barristers appointed by an entirely independent Judge Advocate General. In that respect of course the system in the navy does not compare and Mr Howell has made that factor a matter for criticism. The second respect, however, is that in the navy the appointment of a judge advocate to an individual court martial is not, for the reasons explained, an entirely ad hoc affair, which for the most part it is in the other two services: for the naval judge advocate, once ticketed, remains ticketed and available for appointment to courts martial, and is appointed to them, subject to gaining experience and the statutory requirement, on a cab rank principle. Moreover there is a de facto security of tenure (see Morris at para 69, cited above at para 17); and if a judge advocate had to be removed from office, which has never happened, the ultimate decision would be that of the independent JAF.
48. This is, we think, unlike the position of the temporary sheriffs in Scotland in Starrs, where the vice of the system was that appointment was only for one year at a time, so that the executive maintained a tight control in circumstances where the appointees were very often persons who hoped to graduate to permanent employment. Our case concerns appointees who are already within the service and in certain respects is closer to the position of the PPCMs considered in Spears and in Morris, serving officers who are appointed to a role within the court martial system. The appointments as PPCM considered in those cases were for a number of years, whereas judge advocates are appointed without limit of time. We also consider that the facts relating to the ticketing and appointment of judge advocates in this case are sufficiently different from those described in R v. Généreux (see para 24 above), where everything was in the complete control of a judge advocate general who was part of the executive and served as the agent of the executive in supervising prosecutions. The CNJA has no role to play in the prosecuting authority and is independent of it; he consults with the JAF on appointment of judge advocates and would be subject to the JAF on removal; and in general the responsibility of such judge advocates is to the JAF, not to the CNJA.
49. There remains the fact that there is no formal guarantee implicit in the ticketing of a judge advocate that he will be appointed to individual courts martial, other than is achieved in practice through the rota system. It might therefore be argued that judge advocates are not entirely independent of the executive, or not apparently so, in that their desire for more exposure to courts martial is part of their general self-interest in showing that they can perform to the satisfaction of the executive and thus achieve promotion, whether within the sphere of legal appointments or even outside it. And indeed, as we have understood Mr Howell’s submissions, his main emphasis has been on the concern that performance as judge advocate is linked to executive assessment for the purposes of promotion.
50. We think that it is impossible to say that there is nothing in such concern, especially as a naval barrister, and particularly one of the rank of lieutenant commander as distinct from commander, may well have his eye on advancement to legal appointments which are senior to that which he currently holds. Moreover, the changes which have been introduced more recently may be said to reflect the navy’s own uneasiness on the subject. Thus only commanders are now regarded as eligible for ticketing; and the practice of assessment of a judge advocate’s performance as such for the purpose of determining whether he is qualified for promotion or suited for particular appointments has now been or is in the process of being prohibited. In the present case, however, there is the special factor that at the time when Lieutenant Commander Blain acted as judge advocate in Skuse’s court martial he was due for retirement within the year. We think that, as in the case of PPCMs, for whom that appointment is their last posting, this is an answer to this concern and a guarantee of independence in this case: see Spears and Morris.
51. Moreover, it is not the only safeguard. The role of the JAF is an important one and bears on the judge advocate at many points. The JAF is an entirely independent figure. Thus he is consulted about the judge advocate’s ticketing appointment and would likewise be essential to his removal, if that question were ever to arise. He also reviews every contested court martial and for these purposes reads the record of the proceedings and can advise the Admiralty Board to quash a conviction. This is a safeguard which does not exist in the case of a civilian criminal trial, where it is left to a defendant’s legal representatives or ultimately to himself to bring to the attention of the court by way of application for leave to appeal any error or misconduct in the proceedings. In this connection it is, in our view, relevant to point out that a judge advocate, for all his importance at a contested court martial, is not a member of the board which ultimately tries the facts and renders a verdict of guilt or innocence. Their deliberations are in private and are not recorded. But everything that the judge advocate does, he does in public and on the record. The judge advocate has no other contact with the board. That record is subsequently reviewed by the JAF and is again open to review on appeal. Although Strasbourg jurisprudence has not found in such review procedures a sufficient safeguard where there exists a fundamental flaw in the form of members of the board itself who lack independence (see Morris at paras 74/76), it seems to us that it is of more importance where the judge advocate is concerned.
52. There are other safeguards as well in the form of the oath taken by the judge advocate, and his separate position in the court room.
53. Mr Howell has not placed reliance on the influence of navy discipline and morale (presumably because of the decision of this court in Williams) as distinct from the influence of self-interest. But if he had, it would be relevant to point out that Strasbourg appears to be prepared to distinguish between charges which go essentially to service discipline and those which (as in the present case) could as easily be brought in a civilian context: see Morris at para 72.
54. We would therefore conclude that on the facts of this case there were sufficient safeguards, in particular in the specific circumstance that the judge advocate concerned was at the end of his career in the navy and due to retire within the year, to guarantee the independence of the court martial tribunal. We also conclude that a fair minded and informed observer, possessed of all the objectively ascertainable facts discussed in this judgment, would conclude that there were sufficient guarantees of independence to exclude any real possibility or real danger that the court martial which tried Skuse lacked independence or impartiality.
55. In the circumstances there was no breach of article 6(1) and this appeal must be dismissed.

Remedy if breach of article 6(1)

56. We are therefore not called upon to determine what remedy would have been provided by this appeal had we considered that there had been a breach of article 6(1). The question is one of some difficulty. Section 8(1) of the Human Rights Act 1998 provides that where there has been a breach the court “may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate”.
57. In R v. Togher [2001] 1 Cr App R 33 Lord Woolf CJ said at para 30 that –

“Applying the broader approach identified by Rose L.J., we consider that if a defendant has been denied a fair trial it will almost be inevitable that the conviction will be regarded as unsafe.”

58. In R v. Forbes [2001] 1 AC 473 at para 23 that statement of the court of appeal was endorsed by Lord Bingham of Cornhill.
59. In the case of delay (cf article 6(1)’s “within a reasonable time”), however, it has been said that a stay should only be given where there is prejudice which cannot otherwise be remedied and that “in the absence of prejudice of that sort, there is normally no justification for granting a stay”, Attorney-General’s Reference (No 2) of 2001 [2001] 1 WLR 1869 at 1877H/1878A. Moreover, in R v. Lambert [2001] 3 WLR 206, which was concerned with article 6(2) and the presumption of innocence, their Lordships opined that, even if there had been a breach of the Convention in that respect, the conviction was not unsafe since the jury would have reached the same result even if a direction compatible with the Convention had been given to them. And Lord Clyde said (at para 159):

“No doubt in many cases an unfair trial in contravention of article 6 will constitute an unsafe conviction: see for example R v Togher [2001] 1 Cr App R 457; R v Forbes [2001] 1 AC 473. But an unfairness is not always fatal to a conviction. In particular in the present context a direction that there is a persuasive burden on the accused to establish a defence under section 28 will not necessarily lead to an unsafe conviction. But if there is doubt about guilt it is not every case where an unfairness can be identified that will necessarily and inevitably lead to a quashing of the conviction.”

60. Moreover Lord Hutton considered that the correct analysis in such a case was to say that there had been no breach of article 6(2) at all (at paras 199/200), adding –

“On my reading of the European jurisprudence the European Court pays particular attention to the facts of the individual case before it and does not make a finding of a violation of article 6 if the applicant has suffered no injustice.”

61. In Millar v. Procurator Fiscal [2001] UKPC D4, on the other hand, where the Privy Council held that the convictions and sentences of four defendants prosecuted before temporary sheriffs in Scotland were ultra vires and void in the light of the decision in Starrs, the point was taken that no breach of article 6(1) had occurred since, whatever the theoretical defects of the appointments of the respective sheriffs, none of them was said to have shown any lack of independence and impartiality “and none of the accused could show that he or she had in the event suffered any injustice” (at para 15). Lord Bingham said that he had much sympathy with that submission but ruled (at para 16):

“But I cannot accept that the outcome in Starrs would have been any different had the challenge been raised after the trial in that case was concluded and it is in my view clear from authority that the right of an accused in criminal proceedings to be tried by an independent and impartial tribunal is one which, unless validly waived by the accused, cannot be compromised or eroded.”

62. The appeals were therefore allowed and the cases were remitted to the High Court for that court to consider what orders should in consequence be made. However, the argument there was that there had been no breach at all, not as to the consequence of any breach. Moreover, under section 57(2) of the Scotland Act 1998, the consequence of any breach of the Convention is one of ultra vires, since it provides that there is “no power” to do any act so far as it is incompatible with any of the Convention rights. This can be contrasted with section 8(1) of the Human Rights Act 1998 (see above) which provides for a “just and appropriate” remedy: see Procurator Fiscal (Linlithgow) v. Watson (Privy Council, 29 January 2002) at para 111 per Lord Hope of Craighead.
63. In the light of these authorities it is perhaps fortunate that we need not resolve this issue. However, since the matter has been argued, we would tentatively express the view that in a case such as this, had we held that there had been a breach of article 6(1), we consider that we would not have been bound to hold the conviction to be unsafe.

Waiver

64. Mr Havers has not submitted that the confirmation at the start of the court martial by the accused’s friend that no objection was taken to the composition or constitution of the court was a waiver. The subject is discussed in Millar and in R v. Jones [2002] UKHL 5.

Retrospectivity

65. Finally, Mr Havers has not taken a point that the Human Rights Act is not retrospective: cf R v. Lambert and R v.Kansal (No.2 [2001] 3 WLR 1562. . This is because he considers that in any event the English common law, as it has developed in part under the influence of the Convention, would provide the same answer and would not be subject to any problem of retrospectivity deriving from the precise wording of the Act. We have not had to consider such points.

Conclusion

66. In conclusion, this appeal must be dismissed.