England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURTS-MARTIAL
APPEAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		10 May 2005

Lord Justice Keene:

1. This is another case in which the issue arises as to how far the structures and procedures of courts-martial in this country are compatible with an accused person's rights under Article 6 of the European Convention on Human Rights.
2. The facts which give rise to the issue are not complicated. The appellant was at the relevant time an Operator Mechanic in the Royal Navy. On 23 February 2004 at a court-martial held at HMS Nelson before District Judge Cooper sitting as Judge Advocate the appellant pleaded guilty to two offences of drunkenness and using insubordinate language to a superior officer. He was dismissed from the service, sentenced to be kept in detention for 42 days and to suffer the consequential penalties involved. His plea was entered after the Judge Advocate had rejected a defence application for a stay of the proceedings as an abuse of process, that application being founded upon an argument that the naval court-martial system breached Article 6.
3. On 11 March 2004 he presented a petition against conviction which was refused by the Reviewing Authority on 19 July 2004. He now appeals against conviction by leave of the single judge.
4. There was, as his subsequent plea indicated, no real dispute that on the day of the alleged offences, 10 March 2003, the appellant had been drinking at a number of public houses and behaving in a way indicative of drunkenness. There was also evidence from a superior officer that the appellant had used abusive language towards her. We need not take the facts at any greater length, in so far as they concern the offences themselves.
5. Procedurally what happened was as follows. On 2 September 2003 the appellant was seen by his commanding officer when he elected trial by court-martial. The matter was referred to the naval Prosecuting Authority by Higher Authority on 19 September 2003. The court-martial took place on 23 February 2004. A naval lawyer, Commander S Taylor, represented the appellant. At the outset of the proceedings defence counsel submitted that the appellant could not receive a fair trial because of the insufficient independence of the naval Prosecuting Authority which breached Article 6 of the European Convention on Human Rights and that continuance of the prosecution would constitute an abuse of process of the court. The court-martial was referred to the judgments of the European Court of Human Rights at Strasbourg in Grieves v. United Kingdom and Cooper v. United Kingdom reported respectively at [2004] 39 EHRR 51 and [2004] 39 EHRR 171. In rejecting the submission the Judge Advocate ruled that the application was tantamount to an invitation to dis-apply section 52H of the Naval Discipline Act 1957 which he had no power to do.
6. The statutory context is this. Naval courts-martial are provided for by Part II of the Naval Discipline Act 1957. The relevant provisions of that Act were amended by the Armed Forces Act 1996 which came after the adverse opinions on the original courts-martial system expressed by the European Commission of Human Rights in its report of 5 September 1995 in Findlay v. United Kingdom, opinions subsequently endorsed by the European Court of Human Rights in that case: [1997] 24 EHRR 221. In particular the 1996 Act inserted sections 52H, 52I and 52J into the 1957 Act.

7. Section 52H provides as follows:

"(1) Her Majesty may appoint a qualified officer of Her naval forces to be the prosecuting authority for the Royal Navy; and in this Act "the prosecuting authority" means the officer so appointed.

(2) An officer shall not be qualified to be appointed as the prosecuting authority unless he is-

(a) a person who has a five year general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990;

(b) an advocate or solicitor in Scotland of at least five years' standing; or

(c) a member of the Bar of Northern Ireland, or a solicitor of the Supreme Court of Northern Ireland, of at least five years' standing."

7. Section 52I deals with the functions of the Prosecuting Authority. By section 52I(4),

"(4) If the prosecuting authority considers that court-martial proceedings under this Act should be instituted, he shall determine any charge to be preferred and (subject to section 52II of this Act) prefer any such charge."

8. Sub sections (6) and (7) of that section are also relevant for present purposes. They provide as follows:

"(6) The prosecuting authority shall have the conduct of any court-martial proceedings under this Act against the accused.

(7) Without prejudice to any other power of his in relation to the conduct of the proceedings, the prosecuting authority may, in accordance with rules under section 58 of this Act-

(a) amend, or substitute another charge or charges for, any charge preferred;

(b) prefer an additional charge, or additional charges, against the accused;

(c) discontinue proceedings on any charge."

9. Section 52J empowers the Prosecuting Authority to delegate any of his functions to officers appointed by him as prosecuting officers, who must also be legally qualified.
10. Under the system prior to the amendments contained in the 1996 Act, the power to order a naval court-martial rested with the same authorised officer as appointed the members of the court-martial and the Judge Advocate. A similar combination of functions in the convening officer within army courts-martial was at the heart of the Strasbourg Court's conclusion in Findlay that the system violated the accused's Article 6 rights, because the members of the court-martial were not sufficiently independent of the convening officer and the trial system did not offer adequate guarantees of the impartiality of the tribunal. Those functions have now been separated in the post-1996 Act system.
11. The appellant makes a number of criticisms of the way in which the naval Prosecuting Authority functions. None of these criticisms concern matters which are to be found in the terms of section 52H. In those circumstances we find it difficult to accept the Judge Advocate's reasoning that he was in effect being asked to make a declaration of incompatibility under section 4 of the Human Rights Act 1998 and that only higher courts were empowered so to do. The challenge by the appellant was not to the institution of the Prosecuting Authority as such nor to his powers, but to certain features of his position which are not set out in the primary legislation. In our judgment, it was open to him to stay the proceedings, as he was being invited to do, if he had come to the conclusion that those features resulted in a breach of Article 6. The issue, therefore, was and is just that: do those features mean that the appellant's Article 6 rights were breached?
12. There are three matters relied on by the appellant in his argument that there was such a breach, because the Prosecuting Authority was not sufficiently impartial, when judged objectively, to exclude the fear of prejudice or bias. The first of those is that the Prosecuting Authority at the time of this trial, Commander Crozier, was reported upon within the service. He was in fact the subject of one report by the Chief of Staff to the Second Sea Lord. It is said that the report on him covered, amongst other things, his prosecuting duties and how he performed them, and that this meant that he could be put under pressure by his superiors. Mr Tregilgas-Davey, who appears for the appellant, submits that this undermined the Prosecuting Authority's objective independence. His position is contrasted with that of the prosecuting authorities in the Army and Royal Air Force. In those services there is no reporting on the RAF and Army prosecuting authorities, in order to prevent any fear of the chain of command having a hand in decisions about the trial process or there being any appearance of such a possibility. It is submitted that the lack of such a clear break between the naval Prosecuting Authority and the chain of command was a significant failing in terms of his objective independence as required by Article 6. The point is made that, since the appellant's trial, the practice of the Prosecuting Authority being reported on has ceased. This change, it is submitted, is an acknowledgment that the previous practice fell foul of objective independence.
13. Secondly, the appellant points to the fact that Commander Crozier was not in his final posting, again unlike his Army and RAF counterparts. This could mean that he was susceptible to pressure by way of inducements, enticements or threats. He was actively pursuing career advancement and promotion within the navy. The lack of any such insulation against such potential pressure deprived the naval courts-martial of a valuable and much needed safeguard. Again, Mr Tregilgas-Davey places reliance on the fact that, since this trial, the naval practice has changed. The new Prosecuting Authority is in his final posting.
14. Thirdly, the appellant points to the rank of Commander Crozier, significantly more junior than his Army or Air Force equivalents, where the post of Prosecuting Authority is in both cases held by two star officers. This too, it is argued, makes the naval Prosecuting Authority less immune from pressure or influence.
15. These three considerations are, says the appellant, to be looked at cumulatively. When taken together the appellant's court-martial lacked objective independence.
16. For the respondent, Lieutenant Commander Towler submits that those shortcomings identified in the past by the Strasbourg court in the court-martial system have now been rectified. The lack of separation between the prosecuting and adjudicating functions identified in Findlay has been remedied by the 1996 Act, as the European Court of Human Rights acknowledged in Morris v. United Kingdom [2002] 34 EHRR 52 at paragraph 62. Furthermore the structure of a naval court-martial was specifically scrutinised by that court in Grieves v. United Kingdom. The main concern of the court there was the position at that time of the Judge Advocate who was a serving naval officer only sitting some of the time in courts-martial and carrying out regular naval duties at other times. That position has since changed and at the appellant's court-martial the Judge Advocate was a civilian.
17. Lieutenant Commander Towler emphasises that what is required by Article 6 is that the tribunal be independent and impartial. It is the tribunal which determines the innocence or guilt of the accused. The Prosecuting Authority is party to the proceedings before the tribunal but is not itself part of the tribunal which determines the innocence or guilt of the accused. Consequently the Prosecuting Authority is not obliged to attain independence to the same extent as the tribunal itself. The respondent submits that there are sufficient guarantees to ensure that the Prosecuting Authority is sufficiently independent and impartial to prosecute cases fairly and without interference from outside bodies. It is also submitted that these guarantees permit the Prosecuting Authority to participate in courts-martial in a way that provides the appellant with a hearing which, viewed as a whole, satisfied Article 6.
18. Reliance is placed by the respondent on the following features of the position of the Prosecuting Authority:

1. He is appointed independently by the Sovereign under section 52H.

2. He has to be legally qualified and was in fact an employed member of the Bar of England and Wales. As such he was and is subject to the professional and ethical duties of the Bar Code of Conduct, including the duty to act with independence and the duty to the court.

3. He has an absolute discretion as to what charges should be preferred, which he exercises applying similar criteria to those applied in civilian cases by the Crown Prosecution Service. He and those who prosecute under him apply the principles of the Code for Crown Prosecutors, supplemented and adapted slightly to incorporate factors peculiar to the Armed Forces. Those principles are contained in a draft Code for Service Prosecutors which has been agreed by the Attorney-General. The decision to prosecute is thus based on legal criteria similar to those applied by the Crown Prosecution Service and in accordance with the Bar Code of Conduct.

4. He and his prosecuting staff are employed full time and exclusively on prosecution duties.

5. Like the other Prosecuting Authorities in the other branches of the Armed Forces he is under the general superintendence of the Attorney-General. Lieutenant Commander Towler has put in evidence, which we give leave for, in the shape of an extract from Hansard for 28 October 2004 in which the Solicitor-General states that:

"The service Prosecuting Authorities are subject to the general superintendence of the Attorney-General".

19. The respondent accepts that Commander Crozier was reported upon within the service, being the subject of one report already referred to. It is said that this report mainly related to his management and administrative functions, and only dealt with his prosecuting activities in a general way, rather than commenting on individual decisions to institute proceedings or to discontinue them. It is submitted that the fact that the practice of the Prosecuting Authority being reported on has now ceased should not be seen as an acknowledgment that the practice undermined the Prosecuting Authority's independence. Rather it was a prudent improvement in the system, which reflected changing standards.
20. The report by the Chief of Staff to the Second Sea Lord on Commander Crozier has, very helpfully, being produced in the course of this hearing. It indicates that Commander Crozier had certain career aspirations, not necessarily confined to the legal branch of the Royal Navy. The most crucial part of the document is the assessment of his performance as Prosecuting Authority. That reads as follows:

"CROZIER has made a most promising start to this appointment. He was already very experienced as a naval prosecutor and quickly brought his considerable expertise to bear during a busy period for his organisation which has seen the successful resolution of some long-running and complex cases. I understand that his advocacy in court is of the highest order and he has successfully appeared in the Court of Appeal as the respondent. He leads with considerable enthusiasm, exhibiting sensitive but most effective management style that manifests itself in a team of happy, well-motivated individuals who turn in consistently good results. He is an articulate and good-humoured officer with a deep commitment to the Service that reflected in his impeccable reliability and invariably good judgment."

21. Lieutenant Commander Towler points out that this contains no comment on any individual decision made by the Prosecuting Authority to prosecute or not and is in general terms, referring to broad characteristics. Nor would the Chief of Staff, the reporting officer, see individual decisions by the Prosecuting Authority or any record of them, though he might have been aware of any very high profile case which took place. However, Lieutenant Commander Towler acknowledges that there was no written guidance in existence at that time about how such appraisal reports were to be written and nothing Commander Crozier would have seen to indicate to him what would and what would not have been covered in such a report.
22. As for Commander Crozier not being in his last posting, it is contended that this did not render him susceptible to pressure, since he reported to no one in his chain of command regarding his day to day prosecution function. As any appraisal report about him did not comment on his conduct of individual cases, those deciding on promotion or further posting could not be influenced by a decision which he had made in any individual case.
23. The respondent accepts that the naval Prosecuting Authority at the time of the appellant's trial was not of as high a rank as his counterparts in the RAF or Army. However, within the Royal Navy, Commander Crozier was of greater or equal rank to all Staff Legal Advisors advising Higher Authorities on the conduct of potential prosecutions. It is therefore submitted that he was of sufficiently high rank to withstand any pressure from those Higher Authorities or anyone else who might seek to influence him. It is argued that the rank of Commander is a senior officer rank, there being only eight hundred at such rank within the Royal Navy. Reliance is also placed on statistical evidence, which indicates that the Prosecuting Authority decided to discontinue certain cases which had been referred to him by the Higher Authority. This, it is said, is a clear demonstration of his independence.
24. We are grateful to both parties for their co-operation in enabling the facts about the Prosecuting Authority's position, as it was at the relevant time, to be put before this court. Insofar as any such material was not before the court-martial below, we give leave for its admission. Without it, it would have been impossible to have determined this issue in any substantive way.
25. Article 6(1) of the European Convention on Human Rights, in the part most relevant for present purposes, provides that:

"In the determination of his civil rights and obligations or 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."

There is no dispute that the appellant faced a criminal charge. Article 6(1) was clearly engaged. The crucial words for present purposes in that paragraph are "an independent and impartial tribunal". It is not suggested that the procedures adopted at the court-martial themselves prevented a fair trial. The main issue in this appeal, as is evident, is the position at that time of the naval Prosecuting Authority.

26. The Strasbourg court summarised what was required for this part of Article 6(1) at paragraph 58 of its decision in the Morris case. It said:

"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 its terms 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 (see aforementioned Findlay v. the United Kingdom judgment).

The concept of independence and objective impartiality are closely linked and, as in the Findlay case, the Court will consider them together as they relate to the present case."

27. It is clear that there is an important objective element to the test. One is concerned with more than just whether there was actual bias, for example, on the occasion in question. The Strasbourg jurisprudence indicates that there have to be sufficient safeguards to ensure that there is not an appearance of a lack of independence or impartiality on the part of the tribunal.
28. What that principally requires one to focus on is, unsurprisingly, the tribunal itself, that is to say the decision-makers. In the case of a court-martial, as in criminal trials in a Crown Court, there are two parties to the making of the decision: the tribunal members, who as Lord Bingham of Cornhill pointed out in R v. Spear [2003] 1 AC 734 at paragraph 7(2) have a role closely analogous to that of jurors, and the judge advocate, whose role, in Lord Bingham's words

"is essentially that of the judge at a criminal trial on indictment in the Crown Court."

Most of the concerns about courts-martial expressed by the European Court of Human Rights have related to the position of these two elements in the tribunal. Their role is patently crucial to the concept of an independent and impartial tribunal. Thus in Findlay, as we have already described, the Strasbourg court's main concern related to the conflicting roles of the "convening officer" in the proceedings, since he had a key prosecuting role but at the same time appointed the members of the court-martial who were subordinate in rank to him and fell within his chain of command. There was an insufficient separation of the prosecution, convening and adjudication elements.

29. In Morris, the principal criticism accepted by the court was as to the ad hoc nature of the appointment of the two non-presiding members of the tribunal. In Grieves, a naval court-martial case, it was as to the status of the judge advocate at that time, since he was a serving naval officer who, when not sitting, carried out regular naval duties and whose court-martial performance could be the subject of reports to a senior naval officer. In the case of Cooper v. United Kingdom, the Strasbourg court found that there was no breach of Article 6(1) in the case of the Royal Air Force court-martial. Again, the court largely concentrated on the independence and impartiality of the tribunal members and the judge advocate and on those features which provided safeguards to that effect.
30. None of this is surprising. It is the independence and impartiality of those involved in the decision-making process which is fundamental to a fair trial. Having said that, however, this court notes that the Strasbourg court has in several of these cases considered the position of the prosecutor when examining the fairness of the court-martial. Thus in Cooper, it assessed the independence and impartiality of the bodies involved in the proceedings prior to the court-martial hearing, including the Royal Air Force Prosecuting Authority. Similarly, in Grieves, a naval court-martial case, it was prepared to look at the position of the naval Prosecuting Authority. Consequently, while the independence and impartiality of the tribunal members and the judge-advocate are of fundamental importance, it seems to us that the Strasbourg jurisprudence does require attention to be paid, when considering Article 6(1), to the extent to which those attributes are to be found in the Prosecuting Authority.
31. We are bound by section 2(1) of the Human Rights Act, 1998 to take into account decisions of the European Court of Human Rights and in any event our own jurisprudence recognises the importance of integrity on the part of the prosecutor. In his foreward to the 2002 guidelines for prosecution advocates, the Lord Chief Justice, Lord Woolf, refers to the prosecution advocate as " a cornerstone of an open and fair criminal justice system", and the Code for Crown Prosecutors, paragraph 2.2 states:

"Crown Prosecutors must be fair independent and objective … They must not be affected by improper or undue pressure from any source."

They are also required to act in the interests of justice. The reality is that a prosecutor has the ability to influence and even mislead the court. Consequently, we accept that his independence and impartiality are matters to be considered when assessing whether or not there has been proper compliance with Article 6(1).

32. The Strasbourg court has itself commented on the characteristics of the military prosecuting authorities. In Cooper, it was argued by the applicant at paragraph 86 that

"the Prosecuting Authority was part of the "legal branch" which gave "general advice" to the service authorities so that that Authority's officers were subjected to pressure in relation to career prospects and discipline. The officers carrying out the functions of the Prosecuting Authority were also likely to be subordinate in rank to, and subjected to pressure from, the Higher Authority."

That related to the Prosecuting Authority of the Royal Air Force. The Grand Chamber rejected the criticism, stating at paragraph 113:

"The Prosecuting Authority is appointed by the Queen and is legally qualified. Members of his staff are legally qualified and are employed exclusively on prosecution duties. The decision to prosecute is made on the basis of legal criteria similar to those applied by the Crown Prosecution Service and in accordance with the Codes of Conduct of the respective branches of the legal profession. While the Prosecuting Authority is also the RAF Director of Legal Services, he is answerable to the Attorney General only, and is not reported upon within the service, on his prosecution duties. There being no chain of command or service connection between the Higher and Prosecuting Authorities either claimed or apparent, any seniority in rank of the Higher Authority over the Prosecuting Authority would not be sufficient to conclude, as the applicant suggests, that the latter is "likely to" be influenced by the former." (our emphasis)

There are differences between the position of the Prosecuting Authority in the Royal Air Force and that of the naval Prosecuting Authority. Even so, as Lieutenant Commander Towler emphasises, the Strasbourg court considered the position of the naval Prosecuting Authority in the case of Grieves and made no adverse comment about that position. We do, however, accept the appellant's point that the matters now being raised, such as the system of reporting upon the naval Prosecuting Authority's performance, do not seem to have been raised during Grieves and may not have been drawn to the Court's attention.

33. With that background we now turn to consider those matters, bearing in mind that they are to be seen in context. That context has to include such features of the Prosecuting Authority's position as provide safeguards of his independence and impartiality. It is the total picture which needs to be considered. Thus it is important that he is engaged full-time, exclusively, in his role as a prosecutor. He does not have other naval duties to perform at other times. He is a qualified barrister, as are the prosecutors on his staff. As such, he is bound by the Bar Code of Conduct and the Code for Crown Prosecutors, with the result that he must act independently, not allow himself to be affected by any improper pressure from any source and must observe his duty to the court. He has an absolute discretion as to how he performs his duties in deciding whether or not to prosecute and what charges should be preferred.
34. The three matters raised by the appellant all go to suggest that he might, objectively speaking, be influenced in his decisions by pressures from above or at least by a desire to impress his superiors within the Royal Navy. The point about his rank and about him not being in his final posting are closely related, but in our judgment add only a little to the first point about the fact that he was reported upon. Were he not reported upon, there would be no real significance in his rank or prospect of further advancement. We do not attach great weight to the fact that the system had since been changed, so that the Prosecuting Authority is now more senior and in his final posting. Those are desirable changes, but the absence of them does not of itself indicate any lack of independence or impartiality.
35. The main feature which has caused us concern is the reporting within the service on Commander Crozier's performance as Prosecuting Authority. It is all very well to contend that he is answerable only to the Attorney-General. If the appraisal of him within the service comments upon his performance as the Prosecuting Authority and reflects the decisions he has made in that capacity, then an objective observer could be concerned that those decisions might influence his prospects of promotion. We note that the report to the Second Sea Lord on Commander Crozier refers in its appraisal of him to his period in office as having

"seen the successful resolution of some long-running and complex cases."

His advocacy skills and his success in the Court of Appeal are commented on, and the appraisal refers to his team having turned in

"consistently good results."

36. It is not easy to interpret what was meant by such comments. They may be, as Lieutenant Commander Towler suggested, merely saying that prosecutions were run effectively, rather than that they were successful in the sense of achieving convictions. But we have to bear in mind two considerations: the first is that there was no written guidance in being to indicate what should and should not be covered in the appraisal of Commander Crozier, with the result that he may not have been confident that his decisions in individual cases would not be held against him. Secondly, in that situation an objective observer might well have taken the view that Commander Crozier could be influenced in his decisions by what he thought his superiors within the Royal Navy would think about his decisions.
37. In the case of Spear, Lord Bingham of Cornhill took into account the fact that none of the annual reports on the President of a Royal Air Force court-martial alluded to the quality or outcome of his judicial decisions. We do not feel that the same can be said about the report on the naval Prosecuting Authority: it does seem to comment on the outcome of his or his team's prosecutions. No individual decision is referred to in the appraisal, but the comments made do seem to be based on an overall assessment of those decisions as a whole.
38. We have not found this an easy case to determine. There were undoubted safeguards in existence, as set out earlier in this judgment. Certainly the Prosecuting Authority should have acted independently and impartially and there is no evidence that he did not. But merely because he was under such an obligation is not enough. He has to be in such a position that an objective observer would regard him as free from potential pressure in his decision-making. Given the system of reporting on him which existed at that time within the Royal Navy, we have concluded that such an observer would not have seen him as sufficiently protected from such pressure. That then has to be combined with the other factors referred to, namely his rank and scope for further promotion within the service. When we put all those together, we are forced to conclude that the naval Prosecuting Authority at the time of this court-martial did not enjoy necessary safeguards of his independence and impartiality. We are glad to know that the shortcomings we have referred to have since been removed.
39. While the Prosecuting Authority may not enjoy such a pivotal role as the Judge Advocate, his independence and impartiality is of great importance to a fair trial. It seems to this court that the court-martial of the appellant cannot, in these circumstances, be held to have observed the appellant's rights under Article 6(1). If his trial was not fair, then in our judgment his conviction cannot be regarded as safe.
40. There is a subsidiary argument raised by the appellant about the absence of a Permanent President of Courts-Martial within navy courts-martial. In the light of our conclusion about the Prosecuting Authority, it is unnecessary to address that subsidiary argument. This appeal is allowed and the appellant's conviction is quashed.