Dundon, R v

On 17^th July 2003 at a Naval Court Martial held at HMS Drake (Commander Williams sitting as Judge Advocate) the applicant was found guilty of using violence to a superior officer contrary to s11 of the Naval Discipline Act 1957 and was sentenced to be kept in detention for 36 days and to suffer the consequential penalties involved. On 22^nd July 2003 he presented a petition to the reviewing authority against the findings. That petition expressly accepted that appropriate directions on law had been given by the Judge Advocate. No decision has yet been made by the reviewing authority. The applicant now seeks an extension of time of 14 days within which to renew an application for leave to appeal against conviction and, the Crown not resisting such an extension, it was granted by this court at the outset of these proceedings.

The original grounds of appeal which were before the single judge, while accepting that appropriate directions had been given by the Judge Advocate, complained that the court did not adequately consider self defence. The single judge refused leave and those grounds are not now sought to be relied upon. The application has been referred by the Registrar to the Full Court, in the light of the decision of the European Court of Human Rights in Grieves Application No 57067/OO 16^th December 2003, for consideration of whether the applicant’s right to a fair trial by an independent and impartial tribunal under Article 6.1 of the European Convention on Human Rights has been breached and whether, in consequence, his conviction was unsafe. In addition a declaration of incompatibility is sought under Rule 8A of the Courts-Martial Appeal Rules 1968 as enacted by s5 of the Courts-Martial Appeal (Amendment) Rules 2000. In consequence notice has been served on the Secretary of State for Defence who appears as an interested party. We grant leave to appeal.

The facts are of no present materiality and can be briefly stated. On the evening of 21^st August 2002 there was an altercation between the appellant and Petty Officer Taylor in the Two Trees public house in Plymouth. The appellant struck Taylor. Taylor claimed the appellant punched him. The appellant claimed that he was acting in self-defence.

Four questions arise on this appeal. First, in the light of Grieves , were the appellant’s Article 6 rights breached because the Judge Advocate at his trial, albeit an appropriately qualified barrister, was a serving naval officer? Secondly, were his Article 6 rights breached because of the possibility of relationships between members of the court martial and others taking part in his trial? Thirdly, if his Article 6 rights were breached, is his conviction nonetheless safe? Fourthly, is a declaration of incompatibility called for?

Before addressing these questions in turn, it is pertinent to record certain matters of history. The defendant in Grieves was tried by a naval court martial in June 1998. In April 2003, that is after his trial but prior to the appellant’s trial, QRRN 3630 came into force. It provides, so far as is material, as follows

“3.

Judge Advocates must be free from any supervisional restraints in order to carry out independently the duties required of them by law. In the conduct of their professional duties at Courts Martial Judge Advocates are accountable only in so far as the standard and performance of their duties are concerned to the Judge Advocate of the Fleet.

4.

The JAF is solely responsible for reporting on the professional performance of Judge Advocates in the conduct of their duties in courts martial trial. 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 appointment 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 report being prepared on them concerning their conduct of those duties for promotion, appointing or training purposes.”

Also, the briefing notes for naval courts martial, presidents and court members applicable at the time of Grieves’ court martial had been amended by the time of the appellant’s court martial to include a new paragraph in relation to independence and impartiality in these terms:

“7.

In accordance with QRRN Article 3631 the performance as a member of a Court Martial must be carried out independently and impartially. Accordingly Court Martial members are not to be subjected to any external influence or pressure before, during or after any case on which they sit. Any attempt to do so may give rise to an offence of attempting to pervert the course of justice or an offence under s14A(1) of the NDA 57. Further, their performance shall not be considered or evaluated in the preparation of any personal report, assessment or other document used in whole or part for the purpose of determining whether a member qualified to be promoted, or qualified or suited for particular appointments or training.”

In the appellant’s trial, the judge advocate directed the members of the tribunal (a Commander, Acting Commander, Lieutenant Commander and Warrant Officer) as to their roles, and in particular, that the Judge Advocate should be informed immediately if any pressure was put on them regarding the case either before the trial started, during the course of the trial or when the case had been disposed of. The appellant, when asked, made no objection to any member of the court. After the Judge Advocate, the president and members of the court had been sworn in, the Judge Advocate again emphasised that it was imperative that they remain independent and impartial throughout the course of the trial and that no pressure was brought to bear on them from any outside source.

Furthermore, as from the date of the judgment in Grieves, the policy whereby uniformed Judge Advocates were appointed has been terminated. Since that time the Judge Advocate at all naval courts martial has been a civilian judge chosen by the Judge Advocate of the Fleet, a civilian Circuit Judge. On 16^th January 2004, to regularise the manner of appointment, there came into force the Naval Discipline Act 1957 (Remedial) Order 2004, made in response to the judgment in Grieves . Judge Advocates are, in consequence, now appointed by the Judge Advocate of the Fleet, rather than by the Chief Naval Judge Advocate, a serving naval officer. The explanatory note to the Order, which makes the necessary changes to a number of sections including s53C of the Naval Discipline Act 1957 “to remove the incompatibility of those provisions with a Convention Right”, recognises that the Grand Chamber of the European Court of Human Rights in Grieves held “that the position of the Judge Advocate in the applicants’ trial by court martial did not provide a sufficient guarantee of the independence of the court martial because, among other reasons, he had been appointed by the Chief Naval Judge Advocate”.

It is apparent, therefore, that although this judgment will have implications for courts martial held before the decision in Grieves, it is unlikely to affect courts martial held since the post- Grieves changes to which we have referred.

The first question which arises on this appeal is whether this court should regard the conclusions of the European Court of Human Rights in Grieves as being applicable to the appellant. This court is not bound by that decision but must, in accordance with s2(1) of the Human Rights Act, take it into account. In Grieves it was held that the defendant did not have a fair trial in accordance with his Article 6 rights because his misgivings about the independence and impartiality of the court martial, in particular the Judge Advocate, were objectively justified. The European Court of Human Rights were aware of the provisions of QRRN 3630 as is apparent from paragraph 32 of their judgment, although, as we have indicated, it was not in force at the time of Grieves’ court martial.

It is at this point convenient to set out a number of paragraphs from the court’s judgment in Grieves in which, it is to be noted, the court differed in its conclusions from those in relation to RAF courts martial in Cooper v United Kingdom Application No 48843/99 16^th December 2003. In Grieves the court identified six respects in which Naval courts martial differ from the Air Force system. The first three differences are of no present materialality. The court then referred to the Permanent President of Courts Martial (PPCM):

“80.

Fourthly, the post of PPCM does not exist in the naval system, the president of a naval court-martial being appointed for each court-martial as it is convened. The applicant pointed out that, as a result, the entire court-martial was convened on an ad hoc basis. The Government explained that since there were less naval courts-martial, there was no need for a group of officers with the sole task of acting as PPCMs and considered that the naval court-martial complied with Article 6 s1 even without PPCMs.

81.

The Court considers that the absence of a full-time PPCM, with no hope of promotion and no effective fear of removal and who was not subject to report on his judicial decision-making ( the Cooper judgment para 118) deprives naval court-martials of what was considered, in the air-force context, to be an important contribution to the independence of an otherwise ad hoc tribunal

82.

Fifthly, and most importantly, the Judge Advocate in a naval court-martial is a serving naval officer who, when not sitting in a court-martial, carries out regular naval duties. In contrast, the Judge advocate in the air-force is a civilian working full-time on the staff of the Judge Advocate General, himself a civilian.

83.

The applicant considered this distinction sufficient of itself to conclude as to the lack of independence of naval courts-martial… The CNJA, who appointed the Judge Advocate, is a service appointment. The JAF is not responsible for the appointment of the Judge Advocate…

85.

The Court notes that, as in the air-force, the naval Judge Advocate fulfils a pivotal role in the court-martial but that, unlike his air-force equivalent, he is a serving naval officer in a post which may or may not be a legal one and who, although “ticketed” indefinitely, sits in courts-martial only from time to time. As to the Government’s reliance on the involvement of a civilian JAF, the Court observes that the JAF has no input into naval court-martial proceedings, his principal role being to report to the Reviewing Authority on those proceedings. Further, it is not the JAF but the CNJA (a naval officer) who is responsible for the initial “ticketing” of a Judge Advocate (albeit with the agreement of the JAF).

86.

Moreover, the Court notes with some concern certain reporting practices as regards Judge Advocates which applied at the relevant time. The JAF could pass comments about a Judge Advocate’s court-martial performance to CNJA… In addition, at the relevant time the JAF’s report on a Judge Advocate’s judicial performance could be forwarded to the Judge Advocate’s service reporting officer. While this may not actually have happened in the present case, the Judge Advocate took up his duties in the applicant’s court-martial at a time when his performance in those proceedings could, in principle, have been the subject of a report to his evaluating service officer. It is not submitted that QRRN 3630 was in force at the time of the present applicant’s court-martial (see paragraph 32 above).

87.

For these reasons, the Court considers that even if the naval Judge Advocate appointed to the applicant’s court-martial could be considered to have been independent despite the reporting matters highlighted in the preceding paragraph, the position of a naval Judge Advocate cannot be considered to constitute a strong guarantee of the independence of a naval court-martial...

89.Accordingly, the lack of a civilian in the pivotal role of Judge Advocate deprives a naval court-martial of one of the most significant guarantees of independence enjoyed by other services’ courts-martial (army and air-force court martial systems being the same for all relevant purposes-the Cooper judgment, s107), for the absence of which the Government have offered no convincing explanation.

90.Sixthly and finally, the Court considers the Briefing Notes sent to members of naval courts-martial to be substantially less detailed and significantly less clear than the CMAU (RAF) Briefing Notes examined in detail in the above-cited Cooper case (see paragraphs 45-62 of that judgment). The Court considers that they are consequently less effective in safeguarding the independence of the ordinary members of courts-martial from inappropriate outside influence.

91.The Court accordingly finds that the distinction between the air-force court-martial system assessed in the above-cited Cooper case and naval court-martial system at issue in the present case are such that the present applicant’s misgivings about the independence and impartiality of his naval court-martial, convened under the 1996 Act, can be considered to be objectively justified. His court-martial proceedings were consequently unfair.”

For the appellant, Mr Lewin submits that QRRN 3630 and the new paragraph 7 in the Briefing Notes introduced since Grieves’ trial and before the appellant’s do not suggest that the European Court of Human Rights conclusion in Grieves would be any different in relation to the appellant. The test of independence and impartiality of a tribunal is that set out in Findlay v United Kingdom [1997] 24 EHRR 221 at paragraph 73, namely as to independence -

“Regard must be had inter alia to the manner of appointment of its members and their 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 prejudices 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.”

In Cooper in relation to an RAF court-martial the court said at paragraph 117

“The Judge Advocate is a legally qualified civilian appointed to the staff of the JAG (also a civilian) by the Lord Chancellor and from there to each court-martial by the JAG. The independence of air-force Judge Advocates is not questioned by the applicant and the court considers that there is no ground upon which to do so…. The Court finds that the presence in a court-martial of a civilian with such qualifications and with such a pivotal role in the proceedings constitutes not only an important safeguard but one of the most significant guarantees of the independence of the court-martial proceedings”

The importance of a civilian Judge Advocate was central to the court’s decision in Grieves. The absence of a civilian Judge Advocate at the appellant’s trial as well as the manner of his appointment by the Chief Naval Judge Advocate, (as now remedied by the 2004 Order), gave rise to breaches of the appellant’s Article 6 rights.

For the Crown (as the naval prosecuting authority) and the Secretary of State for Defence as the interested party, Mr Havers QC subjected the court’s judgment in Grieves to detailed analysis. He stressed the word “strong” in the court’s reference in paragraph 87 to “a strong guarantee of the independence of the naval court-martial.” He submitted that the court’s conclusion in paragraph 89 must have been based on the same reasons as the conclusion in paragraph 87, apart from the additional comment at the end of paragraph 89 about the absence of convincing explanation. The court’s conclusions were, he submitted, dependent on all the factors to which they referred. Their conclusion may not have been the same had QRRN 3630 been in force. As to the three reasons given by the court in paragraphs 85 and 86 of the judgment the first in relation to “ticketing” was a misunderstanding demonstrated by reference to paragraph 31 of the court’s judgment, the second cannot be said to give rise to an objection in Article 6 terms and the third does not apply in the appellant’s case.

In our judgment it is not appropriate to seek to construe the judgment in Grieves as if it were a statute. Whatever comments can be made in relation to the detail of the court’s reasoning, the leitmotif of the judgment repeatedly shines out from paragraphs 82,85,87,89 and 91. This is that that naval court-martial was unfair because the pivotal role of the Naval Judge Advocate was performed by a serving naval officer not a civilian; in consequence, the most significant guarantee of independence in other courts martial was missing; and the applicant’s misgivings about independence and impartiality were objectively justified. These considerations apply equally in the case of the appellant. His trial was unfair in breach of his Article 6 rights because the Judge Advocate was a serving naval officer as well as because he was appointed by the Chief Naval Judge Advocate, another serving naval officer.

We turn to the second question. This can be dealt with more shortly. We do not accept Mr Lewin’s submission that the appellant’s Article 6 rights were breached by the nature of the court-martial’s composition as to President and ordinary members. The evidence from Commander Crozier, the Naval Prosecution Authority, admitted before us by agreement, shows that, although the Royal Navy is, compared to the Army and the Royal Air Force, a comparatively small service, there is a substantial number of officers eligible to sit on courts-martial (5623) and a pool of 368 officers having the rank of Captain and above are eligible to be President. Appointment is by way of random selection from a computer generated data base. Certain categories of officer are excluded from sitting (see section 53C of the Naval Discipline Act 1957). Attempting to influence members of a court-martial is an offence at common law and under statute as is emphasised by the revised briefing notes. Members of a court-martial are advised to inform either the Judge Advocate or the Naval Court Administration Officer, a civil servant, if they know any prosecution witness. The accused is given an express opportunity to object to any member (and, in the present case, as we have said, did not do so.) And the President and members of the court-martial each swear an oath properly to carry out their duties “without partiality, favour or affection” (see paragraphs 33 to 38 of the judgment in Grieves). In addition, the Judge Advocate, prosecutor and defence representative were all bound by professional obligations as barristers or solicitors to act with independence and in the interest of justice: any inappropriate relationships ought therefore to have been disclosed by them. In our judgment, the revised naval briefing notes provide, in paragraphs 8 to 25, a sufficiently detailed step by step guide to ordinary court-martial members, in paragraphs 1,6,13,16 and 20, an adequate manual of the roles of members and the Judge Advocate and, in paragraphs 7 and 17 amplified by the direction to members by the Judge Advocate, appropriate instructions as to the need to function independently and free from outside pressure.

In the light of the breaches we have identified of the appellant’s Article 6 right to trial by an independent and impartial tribunal, we turn to the question of whether the appellant’s conviction should be regarded as safe. In our judgment it cannot be so regarded.

In many cases, breach of an Article 6 right will result in the quashing of a conviction as unsafe. But that is not necessarily the result in all cases (see per Lord Woolf CJ Togher [2001] 1 Cr App R 457 @468 para 30; Lambert [2002] 2 AC 545 at para 18 per Lord Slynn and para 43 per Lord Steyn; and Mills [2002] 3 WLR1597 paras 18-23 per Lord Steyn and paras 53 and 55 per Lord Hope; see also Ashton & Webber [2002] EWCA 2782). In every case the outcome depends on the kind of breach and the nature and quality of the evidence in the case. Just and proportionate satisfaction may, in an appropriate case, be provided, for example, by a declaration of breach or a reduction in sentence, rather than the quashing of a conviction. Breach arising from delay may have such a consequence. (see AGs Ref (No 2 of 2001) [2004] 2 WLR 1). And there may be other exceptional cases in which a conviction may not be unsafe, for example if there has been unfairness because of a legal misdirection but the evidence is overwhelming (see Lambert above) or, possibly, if the trial is unfair because of inadequate prosecution disclosure on a peripheral issue but compelling evidence of guilt makes the conviction safe.

However, we are unable to envisage any circumstance in which, an Article 6 breach having arisen from want of independence and impartiality in the tribunal, it would be possible to conclude that the conviction is safe. Despite Mr Havers’ submissions to the contrary, we are of the view that, although no criticism is or could be made of this Judge Advocate’s conduct, want of independence and impartiality on his part tainted the basic fairness of the proceedings in relation to conviction as well as sentence. The appellant’s conviction must therefore be declared unsafe, as a matter of principle and authority: see per Lord Bingham, with whom the other members of the Privy Council agreed, at para 16 in Millar v Dickson [2002] 1 WLR 1615; and per Lord Rodger, with whom the other members of the House agreed at para 100 in Spear [2003] 1 AC 734; the contrary view, expressed, obiter, by a differently constituted division of this court in Skuse, CACD transcript 3^rd May 2002 paras 56 to 63, was not informed by the House of Lords’ decision in Spear, which was a court martial case.

As to the possibility of a declaration of incompatibility, Mr Lewin contends for this on the basis that, by excluding from eligibility to be a member of a court-martial the 5 categories of officers listed in s53C(4) of the naval Discipline Act 1957, the legislature has left eligible to sit persons who may not be impartial or independent. The proposition has only to be stated for its implausibility to be recognised. In any event, this court’s obligation under s3(1) of the Human Rights Act is to read and give affect to the legislation in a way which is compatible with the Convention and this can obviously be done. There is no basis for a declaration of incompatibility.

For the reasons given, this appeal is allowed and the appellant’s conviction quashed. A re-trial would not be appropriate.

In relation to those other cases presently awaiting review by the Reviewing Authority under s70 of the Naval Discipline Act where, prior to the procedural changes implemented as a consequence of Grieves, a defendant was tried by a court-martial in which the Judge Advocate was a serving officer, it seems likely that this court will quash any convictions confirmed on review. In an appropriate case, it will, of course, be possible to order a re-trial under s19(1) of the Courts Martial (Appeals) Act 1968. In older cases, tried since 1^st October 2000 and already reviewed by the Reviewing Authority, it seems unlikely, generally speaking, that this court will grant leave to appeal out of time on the Article 6 ground, which we have been considering (see per Lord Bingham CJ in Hawkins [1997] 1 Cr App R 234 at 239D to 240E).