CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 9 avril 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 27347/95                       by Richard Allan LANE                       against the United Kingdom        The European Commission of Human Rights (First Chamber) sitting in private on 9 April 1997, the following members being present:              Mrs.   J. LIDDY, President            MM.    M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs.   M. HION            Mr.    R. NICOLINI              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber,        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 9 May 1995 by Richard Allan Lane against the United Kingdom and registered on 16 May 1995 under file No. 27347/95;        Having regard to the reports provided for in Rule 47 of the Rules of Procedure of the Commission and the respondent Government's indication that they have no observations on the admissibility of the applicant's complaints;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a British citizen born in 1948 and resident in Portsmouth. He is represented before the Commission by Mr. John McKenzie, a solicitor practising in London. The facts as represented by the applicant may be summarised as follows.   A.    Particular facts of the case        The applicant joined the Royal Navy in 1966 and became a commissioned officer in 1970. In 1982 he served in the Falklands war when the ship upon which he was serving was attacked. The applicant unsuccessfully attempted to save a colleague who later died in the attack.        In October 1993 the applicant was serving in the United States and received $3,500.00 by way of a grant to which he was not entitled. The applicant was charged (pursuant to section 42 of the Naval Discipline Act 1957) with the civilian criminal offence of theft contrary to the Theft Act 1968. The investigation was carried out by the Royal Naval Police and the consequent report was sent to the Flag Officer Surface Flotilla ("FOSF").        By two letters dated 17 June 1994 to the applicant's commanding Officer, the FOSF stated that it had now been decided to try the applicant by court-martial. It was also suggested that a barrister, Lieutenant Commander, Command Legal Adviser to Flag Officer Naval Aviation, would act as the accused's friend. The applicant claims that he had some doubts about being represented by a naval barrister and that, having taken that barrister's advice, he did not pursue the issue of a civilian defence lawyer.        By notice dated 2 November 1994 the Convening Authority noted receipt of the letter alleging the misconduct of the applicant ("the circumstantial letter"), ordered the convening of a court-martial for 7 November 1994 and nominated by name the President, the remaining four members of the court-martial, the court-martial Judge Advocate (who was the Chief Naval Judge Advocate) and the Clerk of the Court. The applicant submits that the Prosecutor and the accused's friend were two of thirteen Lieutenant Commanders in the Royal Navy Legal branch, that the Judge Advocate was the second most senior captain in that Branch and that the Prosecutor was senior to the accused's friend. The applicant also submits that two of the members of the court-martial were from ships in the command of the FOSF.        The trial took place on 7 November 1994. The applicant claims that the cause of his actions, for which he was on trial, was a "professional suicide impulse" caused by Post Traumatic Stress Disorder and that, though he had strong psychiatric evidence to that effect, he was persuaded by the accused's friend to plead guilty. Having heard evidence in mitigation, the court-martial retired to consider sentence. The applicant was given a three month suspended sentenced and was ordered to be discharged from the navy.        On 16 December 1994 the applicant petitioned the Defence Council citing the numerous and uncontradicted witnesses who offered psychiatric and other evidence in mitigation as a basis for a more lenient sentence. By letter dated 31 January 1995 from the FOSF, the applicant was informed that his petition, which had been reviewed by the Naval Secretary and the Director General Naval Manning on behalf of the Admiralty Board, demonstrated no grounds for interfering with the finding or sentence of the court-martial. The Petition was to be passed to the Admiralty Board.        On 23 March 1995 two members of the Admiralty Board (Controller of the Navy and Chief of Fleet Support) dismissed the petition having taken advice from, inter alia, the Judge Advocate of the Fleet. A letter dated 5 April 1995 to the FOSF (and copied to the accused's friend and to the applicant's new legal representative) noted the decision of the Admiralty Board and the FOSF was requested to notify the applicant accordingly. That letter was accompanied by a note outlining the points considered by the Admiralty Board and the reasons for their decision.   B.    Relevant domestic law and practice   1.    General        The law and procedures in respect of naval courts-martial are contained in the Naval Discipline Act 1957 ("the 1957 Act") and in certain Statutory Instruments made under the 1957 Act including the Naval Courts-Martial General Orders (Royal Navy) 1991. Under section 42 of the 1957 Act "civilian" offences are also offences under the 1957 Act. Therefore, even if the charge relates to a civilian offence, in most cases naval personnel can be tried on that charge by the naval authorities under the 1957 Act.   2.    Composition of a naval court-martial        A naval court-martial consists of between five and nine naval officers not below the rank of lieutenant, though the rank of the members may be higher depending on the rank of the accused. All members cannot belong to the same ship or naval establishment and the captain and executive officer of the accused's ship cannot sit on the court- martial.        A President of the court-martial will be appointed from the members. A Judge Advocate must also take part in every naval court- martial. A Clerk of the Court is also appointed and is responsible for certain administrative and routine duties in connection with the court- martial. A Provost Marshal may be appointed to take the accused into custody and to keep the accused until he is delivered in due course of law. A Prosecutor must be appointed and he may be a legally qualified naval officer or any other competent person. In exceptional cases civilian counsel will be appointed as Prosecutor.        An accused may engage, inter alia, an officer or civilian counsel who may be reasonably available to assist him with the defence ("the accused's friend"). The accused's friend advises the accused, may examine the accused if he desires to give evidence, cross-examine witnesses for the prosecution and examine witnesses for the defence. The accused's friend may make any submissions that the accused might make and may, on the accused's behalf, open and close the defence case and, if necessary, make a statement in mitigation of punishment. If the accused wishes to be represented by a civilian lawyer he may apply to the Convening Authority for approval of legal aid.   3.    Convening Authority        A court-martial may be ordered by the Defence Council and any officer authorised by the Defence Council. Any officer so authorised may in turn authorise an officer under his command (including a flag officer) to so convene a court-martial. The officer who convenes the court-martial is referred to as the Convening Authority.        The Convening Authority receives the circumstantial letter, orders the convening of a court-martial and must appoint the date, time and place for the trial. Notice of the court-martial must be posted in a place accessible to the public and press at least twenty-four hours before the court-martial. The Convening Authority appoints the President and other members of the court-martial. He also appoints, or directs an officer to appoint, a Judge Advocate, a Clerk, a Prosecutor and a Provost Marshal. He must also ensure that the accused is properly assisted. In this latter respect, unless the accused desires to represent himself or to instruct civilian counsel, the Convening Authority must nominate a competent naval officer to act as the accused's friend.        The Convening Authority must inform the accused that any witnesses he may desire to call and whose attendance may be reasonably procured, will be summoned on his behalf. The Convening Authority directs the charges upon which the accused is to be brought to trial. However, if he is satisfied with the charge sheet accompanying the circumstantial letter (see 5. below), he can simply countersign the charge sheet.        The Convening Authority can, in exceptional circumstances, countermand the ordering of a court-martial before its commencement and dissolve a court-martial during the trial if circumstances arise which, in his opinion, render such action necessary. On receipt of the report on the finding and sentence of a court-martial, the Convening Authority either takes the necessary steps to give effect to the sentence or, if he doubts the correctness of the findings or the sentence, he shall not put the sentence into effect pending reference to the Defence Council.   4.    Judge Advocates   (a)   The Judge Advocate of the Fleet is appointed by the Queen on the recommendation of the Lord Chancellor and is removable on the same authority for inability or misbehaviour. He must be a barrister or advocate of not less than ten years standing. He acts as a legal advisor to the Admiralty Board on matters regarding the administration of justice under the 1957 Act. In particular, he advises that Board whether a court-martial was properly conducted according to law and whether the conviction can stand, gives a view on the sentence and draws attention to any gross errors or irregularities. He also gives the Chief Naval Judge Advocate his view as to the manner in which the naval barristers have conducted themselves as Judge Advocate, Prosecutor and as the accused's friend.   (b)   The Chief Naval Judge Advocate is a serving officer of the rank of captain of the Royal Navy and is also a barrister. The Chief Naval Judge Advocate is assisted by a staff of serving naval officers who are barristers. His duties include assisting and consulting with the Judge Advocate of the Fleet and sitting as Judge Advocate at naval courts- martial where the seriousness of the charges, the complexity of the trial, the rank of the accused or the interest of the Service may so require.   (c)   In all other cases a Judge Advocate is appointed to a court- martial from the staff of the Chief Naval Judge Advocate. The appointment is made by the Convening Authority, by an officer nominated by the Convening Authority or by the President of the court-martial.        Before the trial the Judge Advocate appointed must inform the Convening Authority of any defect in the constitution of the court- martial. He advises the court-martial, whether his opinion is requested or not, upon all questions of law and procedure which may arise and the court-martial must accept his advice unless there are weighty reasons for rejecting it, in which case those reasons must be recorded.        The Judge Advocate must ensure that the accused does not suffer any disadvantage during the hearing in consequence of, inter alia, the accused's position, ignorance or incapacity to examine witnesses. Before the closing of the trial the Judge Advocate sums up the relevant law and evidence. The Judge Advocate is not present when the court considers its finding and, if during the court-martial's deliberations on the charges further advice is required, the court-martial must receive that advice in open court. The Judge Advocate also advises the court-martial on sentence but not in open court.   5.    Pre-hearing matters        The Commanding Officer of the accused applies to the Convening Authority for a court-martial by way of a "circumstantial letter".        The circumstantial letter must report the circumstances upon which a charge is founded in sufficient detail to show the real nature and extent of the offence. Any statement made by the accused in the course of inquiries, during investigation or after he has been charged must be forwarded in a separate document attached to the letter. A charge sheet in the prescribed form, a list of witnesses for the prosecution, summaries of evidence of those witnesses and a list of exhibits which the Prosecutor proposes to put in evidence must accompany the circumstantial letter.        As soon as practicable after the accused has been remanded for trial by court-martial, and in any case not less than twenty-four hours before his trial, the accused must receive a copy of the circumstantial letter together with its annexes.   6.    Preliminary matters during the court-martial        The accused is given an opportunity to object to any particular member of the court-martial and to its general constitution. If the objection to the President is upheld the court must adjourn until another is appointed. If an objection to a member is upheld a member may be appointed from the "spare members list" and, if an objection as to the constitution of the court-martial is upheld, the court-martial must adjourn and report the matter to the Convening Authority. All members of the court, the Judge Advocate, the Clerk and any other officers of the court-martial must take a prescribed oath or affirmation.        The accused may also challenge the court-martial's jurisdiction. If the court-martial allows the challenge the court-martial must adjourn and report to the Convening Authority who can, if he considers that the challenge is not well founded, order that the court-martial continues as constituted.   7.    Procedure in the event of a plea of guilty        Before the court accepts a plea of guilty, the Judge Advocate must ensure that the accused understands the charge to which he has pleaded and the different procedure which will result from the plea. The Prosecutor then reads the circumstantial letter. Before the court proceeds to deliberation on sentence, the Prosecutor must whenever possible call relevant witness evidence as regards information in the possession of the naval authorities as to the accused's background and history which may have rendered the accused more likely to commit the offence, as to his service history and as to his previous convictions. The accused may also give evidence and call witnesses in mitigation. The court-martial must also take note of the accused's naval record (for example, awards for gallantry).        The members of the court-martial retire (with the Judge Advocate and the Clerk) to consider the sentence. The court-martial does not give reasons for its decision on sentence.   8.    Post-hearing matters   (a) A convicted person may petition the Defence Council against the findings or sentence or both. Having reviewed the petition, the Defence Council may, inter alia, quash or alter findings, authorise a re-trial and annul, remit or alter sentences. However, those powers may be, and are normally, carried out by the Admiralty Board or by any officer empowered in this respect by the Admiralty Board. Should an appeal be lodged to the Courts-Martial Appeal Court, the functions of the Defence Council cease.   (b) The Courts-Martial Appeal Court was established by the Courts- Martial (Appeals) Act 1951 and was confirmed by the Courts-Martial (Appeals) Act 1968. The Courts-Martial Appeal Court has the same status and, in essence, the same procedure as the Court of Appeal, Criminal Division and considers appeals from courts-martial. The judges of this court include ordinary and ex officio judges of the Court of Appeal and such judges of the High Court as are nominated by the Lord Chief Justice.        There is, however, no provision for an appeal against sentence only, although certain powers of revising such sentences, pursuant to an appeal against conviction, are available to the Courts-Martial Appeal Court.   COMPLAINTS        The applicant complains under Article 6 of the Convention that he did not receive a fair and public hearing by an independent and impartial tribunal established by law. The applicant also complains under Article 13 of the Convention that he had no effective remedy as regards these violations of Article 6 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 9 May 1995 and was registered on 16 May 1995.        On 4 September 1996 the Commission decided to communicate the application, requesting the parties observations as to the complaints under Article 6 of the Convention.        In their letter received on 21 November 1996 the Government stated that they have no observations on the admissibility of the application.   THE LAW        The applicant complains under Article 6 (Art. 6) of the Convention that he was denied a fair and public hearing by an independent and impartial tribunal established by law and, under Article 13 (Art. 13) of the Convention, that he has no effective domestic remedy in these respects. The Government have no observations on the admissibility of the applicant's complaints.        The Commission considers that the application raises complex and serious issues under Articles 6 and 13 (Art. 6, 13) of the Convention which require determination on the merits. It follows that these complaints of the applicant cannot be dismissed as manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for declaring them inadmissible has been established.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION ADMISSIBLE, without prejudging the      merits.     M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                          of the First Chamber