Stow, R. v

Article 6(1) primarily requires an independent and impartial tribunal. However, the independence and impartiality of a military prosecuting authority are also material to whether a court-martial trial, considered as a whole, is fair.

The assessment is objective and considers the safeguards against outside pressure and the appearance of independence. A prosecutor need not have the same institutional independence as the tribunal, but must be sufficiently protected from pressure in prosecutorial decision-making. Service appraisal arrangements which appear to assess prosecutorial results, without guidance excluding individual decisions, may create an appearance of vulnerability to influence. That risk may be reinforced by rank and prospects of promotion. A conviction following a trial that fails Article 6(1) cannot be regarded as safe.

The appellant, an Operator Mechanic in the Royal Navy, pleaded guilty before a naval court-martial to drunkenness and using insubordinate language to a superior officer. He was dismissed from the service and sentenced to 42 days’ detention.

Before entering his pleas, he applied for a stay as an abuse of process. He contended that the naval Prosecuting Authority lacked the objective independence required by Article 6(1) of the European Convention on Human Rights. The Judge Advocate rejected the application on the basis that it invited an impermissible disapplication of Naval Discipline Act 1957, section 52H.

After his petition against conviction was refused by the Reviewing Authority, he appealed against conviction. The central issue was whether the Prosecuting Authority’s service appraisal, rank and future career prospects deprived the court-martial process of the safeguards required for a fair trial.

1. Appeal allowed; conviction quashed. The court held that the appellant’s court-martial had not observed his rights under Article 6(1). The resulting conviction was therefore unsafe.

2. The Judge Advocate had proceeded on an incorrect premise. The challenge was not to the statutory creation or powers of the Prosecuting Authority under Naval Discipline Act 1957, section 52H. It concerned operational features not prescribed by primary legislation. The Judge Advocate could therefore have stayed the proceedings if those features breached Article 6, without making a declaration of incompatibility under Human Rights Act 1998, section 4.

3. Applying the objective independence and impartiality assessment stated in Morris v. United Kingdom [2002] 34 EHRR 52, the court considered the whole position of the Prosecuting Authority. The tribunal’s independence remained of primary importance. Nevertheless, Strasbourg authority required the court also to consider whether the prosecutor’s position formed part of a fair process. The Prosecuting Authority did not require independence to precisely the same degree as the tribunal, but he needed sufficient protection against actual or apparent outside pressure.

4. There were important safeguards: the Prosecuting Authority was appointed by the Sovereign, legally qualified, employed exclusively on prosecution work, professionally bound to act independently, and had discretion over charges and prosecutions. Those safeguards did not overcome the central concern. His service appraisal appeared to assess the results of prosecutions, including their successful resolution and performance in the Court of Appeal. There was no written guidance preventing appraisal of decisions in individual cases.

5. An objective observer could therefore consider that prosecutorial decisions might affect promotion prospects. That concern was reinforced, though only to a limited extent, by his rank and potential for further advancement. Subsequent improvements, including ending such reporting and placing the office-holder in a final posting, were desirable but did not themselves establish that the earlier system was deficient. Taken cumulatively, the arrangements did not provide necessary safeguards of independence and impartiality.

• Court of Appeal (Criminal Division): Allowed the appeal against conviction and quashed the conviction.
• Reviewing Authority: Refused the appellant’s petition against conviction on 19 July 2004.
• Naval court-martial: The Judge Advocate refused an application to stay the proceedings for alleged incompatibility with Article 6(1). The appellant then pleaded guilty and was convicted.