Baines v Army Prosecuting Authority & Anor

A summary military dealing before a commanding officer may comply with Article 6 where the accused has a free and informed choice to elect a Convention-compliant court-martial and a statutory right of appeal by way of a complete rehearing before a Convention-compliant appeal court. The availability of those procedures may be considered in assessing the fairness of the process as a whole.

A valid waiver of Article 6 rights requires a voluntary, informed and unequivocal election not to claim them. The election for court-martial is not itself part of the determination of the criminal charge. The amended Army disciplinary system therefore secured the appellant’s Article 6 rights.

The appellant, a soldier, pleaded guilty to battery before his commanding officer in a summary dealing and was reduced to the ranks. He had originally faced an allegation of assault occasioning actual bodily harm, but the Army Prosecuting Authority substituted battery and returned the matter to the commanding officer.

The Army Summary Appeal Court upheld the finding and sentence. On a case stated under section 83ZH(2) of the Army Act 1955, the appellant challenged the judge advocate’s conclusion that summary dealing was compatible with Articles 6(1) and 6(3) of the European Convention on Human Rights, relying principally on Thompson v UK.

1. Appeal dismissed. The summary dealing did not breach Articles 6(1) or 6(3).
2. Viewed in isolation, summary dealing was not Convention-compliant because the commanding officer retained a prosecutorial role and the accused had no right to legal representation at the hearing. The relevant question was whether the statutory scheme, viewed globally, nevertheless secured a fair hearing.
3. The amended scheme provided two material safeguards. Under section 76AA of the Army Act 1955, the accused could elect trial by court-martial, which was a Convention-compliant first-instance tribunal. Under section 83ZE, the accused could appeal to the Summary Appeal Court, where the appeal was by way of a complete rehearing and the appellant had legal representation and legal aid.
4. The court distinguished Thompson v UK because that decision concerned the pre-reform regime. The present scheme restricted the court-martial’s punishment to that available to the commanding officer and prevented the Army Prosecuting Authority from preferring a more serious or additional charge without consent or a fresh referral.
5. On the evidence and the statutory safeguards, a soldier had a free and unrestrained right to elect trial by court-martial and to appeal. The election was made before the tribunal began determining the criminal charge and was therefore not itself contrary to Article 6.
6. Although unnecessary to the result, the court held that Article 6 rights may be waived by a voluntary, informed and unequivocal election. The appellant’s experienced solicitor had advised him and had successfully sought summary dealing instead of a Convention-compliant court-martial. That conduct constituted an informed election to raise no objection to the absence of legal representation and to the commanding officer’s lack of independence and impartiality.

• High Court (Administrative Court): On 12 July 2005, dismissed the appeal by case stated and answered the question posed by the judge advocate in the negative.
• Army Summary Appeal Court: Dismissed the appellant’s appeal against conviction and sentence and upheld the reduction to the ranks.
• Commanding officer: Found the battery charge proved and ordered reduction to the ranks.