Regina v Boyd, Regina v Hastie, Regina v Spear (On Appeal From Her Majesty's Courts Martial Appeal Court) (Consolidated Appeals) Regina v Saunby, Regina v Clarkson, Regina v English, Regina v Williams, Regina v Dodds, Regina v Leese, Regina v Marsh, Regina v Webb, Regina v Ashby (On Appeal From Her Majesty's Courts Martial Appeal Court) (Consolidated Appeals) (Conjoined Appeals)

A properly constituted court-martial may try both military offences and offences corresponding to the ordinary criminal law. Such a trial is compatible with article 6(1) where practical and legal safeguards secure the tribunal’s independence and impartiality.

The decisive question is whether a fair-minded and informed observer, considering all the safeguards, would conclude that there was a real possibility of bias. The permanent president’s tenure and separation from command, the judge advocate’s role, the members’ oath, secrecy, directions and protection from outside influence met that standard. Neither the ad hoc appointment and reporting of officer members nor beneficial review by a non-judicial reviewing authority made the tribunals incompatible with article 6(1).

The appellants were service personnel convicted by district or general courts-martial of offences corresponding to offences under the ordinary criminal law. Boyd, Spear and Hastie challenged the role of permanent presidents of courts-martial. The remaining appellants challenged more generally the trial by court-martial of civil offences committed by service personnel, particularly offences committed in the United Kingdom.

The Courts-Martial Appeal Court rejected the permanent-president challenge in [2001] QB 804. It later rejected the wider challenge in [2001] EWCA Crim 2311, although it reduced Marsh’s sentence. The House considered whether the reformed court-martial system provided the independence and objective impartiality required by article 6(1) of the European Convention on Human Rights.

1. The appeals were dismissed unanimously. Lord Bingham and Lord Rodger delivered the substantive speeches. Lord Steyn, Lord Hutton and Lord Scott agreed with both.
2. Per Lord Bingham and Lord Rodger, a military tribunal is either independent and impartial or it is not. Article 6(1) applies to the trial of serious purely military offences as well as civil offences. A court-martial which satisfies article 6(1) may therefore try an offence corresponding to the ordinary criminal law, whether committed in the United Kingdom or abroad. The European jurisprudence established that military courts are not inherently incompatible with article 6(1).
3. Per Lord Rodger, applying the fair-minded and informed observer test, the reformed courts-martial possessed sufficient safeguards. The judge advocate controlled law and procedure. Officer members came from other units, took an oath to decide according to the evidence, received binding directions, deliberated secretly and were isolated from unit personnel and outside influence. Their ad hoc appointment, lack of legal training, military status and exposure to ordinary service reports did not create a real possibility of bias.
4. Per Lord Bingham and Lord Rodger, permanent presidents were independent and impartial. They served near the end of their careers, lacked realistic prospects of promotion and worked outside the chain of command. Although reporting on Royal Air Force permanent presidents was undesirable, the reports did not examine judicial decisions and did not compromise Wing Commander Chambers’s independence.
5. Per Lord Bingham and Lord Rodger, the reviewing authority did not undermine the court-martial’s independence. Its statutory powers could operate only in favour of the convicted person, did not diminish rights of appeal and supplied a quick means of correcting error. The House respectfully declined to follow the contrary conclusions concerning officer members and the reviewing authority in Morris v United Kingdom.
6. Per Lord Bingham and Lord Rodger, section 70 of the Army Act 1955 created service offences corresponding to civil offences. It did not govern the constitution or procedure of the tribunal and therefore did not itself engage article 6(1).
7. Per Lord Rodger, if a conviction had resulted from a tribunal which was not objectively independent and impartial, the strength of the evidence could not preserve it. The conviction would have to be quashed, with a retrial authorised where appropriate.

1. House of Lords: Dismissed all conjoined appeals unanimously and upheld the decisions of the Courts-Martial Appeal Court.
2. Courts-Martial Appeal Court — Boyd, Spear and Hastie: Rejected the challenge to courts-martial presided over by permanent presidents: [2001] QB 804.
3. Courts-Martial Appeal Court — Saunby and others: Dismissed the appeals, save that Marsh’s sentence was reduced: [2001] EWCA Crim 2311.
4. Courts-martial and review: The appellants were convicted and sentenced by district or general courts-martial. The reviewing authority generally left the convictions and sentences unchanged, although Dodds’s detention was reduced from 112 days to 28 days.