Boyd, R v.

The appeals raised the question whether trial by court-martial of service personnel for offences mirroring ordinary criminal offences (section 70 Army Act 1955) complied with article 6(1) of the European Convention on Human Rights. The House held that, as a matter of principle, a court-martial can be an "independent and impartial tribunal" within article 6(1). Applying the fact-sensitive test, the House examined the role and appointment of the judge advocate, the permanent president (PPCM) and the ad hoc officer members, the statutory safeguards and the procedural protections (oath, judge-advocate directions, briefing notes, selection from other units, prohibition on extraneous contact), and concluded that those safeguards were sufficient in the cases before it. The House rejected the challenge to section 70 as such and rejected arguments that the reviewing authority or prosecuting decisions rendered the tribunals constitutionally defective.

This is a conjoined appeal from service personnel convicted after trial by district and general courts-martial. The appellants challenged their convictions on the ground that courts-martial trying civil offences under section 70 of the Army Act 1955 were not "independent and impartial" for the purposes of article 6(1) ECHR.

The appeals reached the House after review and refusal or limited mitigation by the service reviewing authority and dismissal by the Courts-Martial Appeal Court (see R v Spear; R v Boyd [2001] QB 804 and R v Williams and others [2001] EWCA Crim 2311). The House considered two linked certified questions: (i) whether the presence of a permanent president or deputy judge advocate undermined the tribunal's independence and (ii) whether, more generally, trial by court-martial of civil offences committed in the United Kingdom violated article 6(1).

Issues framed:

• whether courts-martial as constituted in these cases satisfied article 6(1)'s requirements of independence and impartiality;
• the significance of the role and tenure of permanent presidents (PPCMs);
• whether the ad hoc officer members were at risk of outside pressure by reason of military discipline, reporting and career prospects;
• the effect of the reviewing authority and of prosecutorial decisions on article 6 compliance;
• whether section 70 itself was incompatible with article 6.

Reasoning and outcome: The House began from established Strasbourg authority that military courts may, in principle, satisfy article 6(1) (Engel; Findlay). It emphasised the function and legal role of the judge advocate, the analogy of officer members to jurors, and the protective procedural features (the oath, judge-advocate directions, selection from other units, written briefing notes, prohibitions on contact and disclosure, secrecy of deliberations, and appellate and review remedies). The House accepted the European Court's view in Morris v United Kingdom as to the permanent president (that the office could be a guarantee of independence) and, having examined the evidence including practice and briefing material not before Strasbourg, concluded that neither the presence of PPCMs nor the ad hoc nature of the officer members rendered the courts-martial in the appellants' cases incompatible with article 6(1). The House also rejected the submission that section 70 was itself incompatible, and did not accept that the reviewing authority or prosecutorial decision-making rendered the system unlawful in the present cases. The appeals were dismissed.

The House explicitly noted that its conclusions were fact-sensitive and relied on the safeguards and practices described in the judgment; it rejected a categorical rule distinguishing military and civil offences for this purpose.

Appeals dismissed. The House held that trial by court-martial can, in principle, satisfy article 6(1) ECHR and that, on the facts and safeguards in these cases (role of the judge advocate, tenure and role of PPCMs, procedural safeguards for officer members, review and appeal mechanisms), the courts-martial were objectively independent and impartial. The House therefore refused the appellants' article 6 challenges and declined to treat section 70 as incompatible in the circumstances.

Convictions following district and general courts-martial; review by the service reviewing authority (section 113); appeals to the Courts-Martial Appeal Court which dismissed the appeals (see R v Spear; R v Boyd [2001] QB 804 and R v Williams and others [2001] EWCA Crim 2311 (unreported) ); leave to appeal to the House of Lords granted and decided in this judgment [2002] UKHL 31.