Dundon, R v

A conviction following a naval court-martial is unsafe where the tribunal breached article 6(1) because its Judge Advocate lacked the necessary appearance of independence and impartiality. The absence of actual criticism of the individual Judge Advocate does not cure that structural unfairness.

Although an article 6 breach does not invariably require a conviction to be quashed, a breach arising from want of independence and impartiality in the tribunal taints the basic fairness of the proceedings. Safeguards concerning the selection, briefing and independence of ordinary court-martial members did not remove the separate defect arising from a serving naval officer acting as Judge Advocate and being appointed by another serving naval officer.

The appellant was convicted at a naval court-martial of using violence to a superior officer contrary to section 11 of the Naval Discipline Act 1957. He petitioned the reviewing authority, but no decision had been made when he sought to renew his application for leave to appeal.

The full court granted an unopposed extension of time and leave to appeal. Following Grieves (Application No 57067/OO), it considered whether the appellant had been tried by an independent and impartial tribunal under article 6(1), whether the ordinary members' relationships created a further breach, whether any breach made the conviction unsafe, and whether a declaration of incompatibility was required.

1. Appeal allowed. The appellant's conviction was unsafe and was quashed. A retrial was not appropriate.

2. The court applied the reasoning of Grieves (Application No 57067/OO). Its central concern was structural: the Judge Advocate performed a pivotal judicial role while remaining a serving naval officer, and was appointed by the Chief Naval Judge Advocate, also a serving naval officer. Those features deprived the tribunal of a significant guarantee of independence. The later safeguards in QRRN 3630 did not alter that conclusion for this trial.

3. The separate complaint about the President and ordinary members failed. Random selection from a substantial eligible pool, exclusions from sitting, opportunities for objection, judicial directions, revised briefing notes, oaths, and professional duties supplied adequate safeguards against outside influence and undisclosed inappropriate relationships.

4. An article 6 breach does not always make a conviction unsafe. The result depends on the nature of the breach and the evidence. Delay, a legal misdirection despite overwhelming evidence, or peripheral disclosure unfairness may sometimes permit a different remedy. But a tribunal's want of independence and impartiality taints the basic fairness of both conviction and sentence. There could be no finding that this conviction was safe, even though no criticism could be made of the Judge Advocate's actual conduct.

5. No declaration of incompatibility was justified. The exclusions in section 53C(4) of the Naval Discipline Act 1957 did not imply that all officers remaining eligible to sit were incapable of independence or impartiality. Section 3(1) of the Human Rights Act permitted a Convention-compatible reading.

• Court of Appeal (Criminal Division), Court Martial Appeals Court: allowed the appeal and quashed the conviction: [2004] EWCA Crim 621.
• Naval Court-Martial: on 17 July 2003 convicted the appellant and imposed 36 days' detention. A petition to the reviewing authority remained undecided.