Law report: Soldier's trial by court martial was unfair

LAW REPORT 4 March 1997

Findlay v United Kingdom; European Court of Human Rights; 25 February 1997

A soldier's trial by court martial under the procedure laid down in the Army Act 1955 did not constitute a "fair hearing" by "an independent and impartial tribunal" as required by article 6.1 of the European Convention on Human Rights.

The European Court of Human Rights ruled unanimously that there had been a violation of article 6 of the Convention in the trial by court martial of Alexander Findlay.

Article 6 provides:

1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

The applicant was born in 1961 and joined the British army in 1980. During the Falklands campaign in 1982 he witnessed the death and mutilation of several of his friends and was himself injured. He afterwards suffered post- traumatic stress disorder (PTSD), but this was not diagnosed until 1990.

In July 1990, after a heavy drinking session, he held members of his unit at gunpoint, threatening to kill himself and some of them. After firing two shots into a television set, he surrendered the gun and was arrested. Psychiatric reports indicated that the incident resulted from PTSD.

The "convening officer", a Major-General, took the decision to charge the applicant with six civilian and two military offences. The convening officer was responsible for appointing the prosecuting officer and members of the court martial. This consisted of a president who was on the convening officer's staff and four officers of ranks subordinate to that of the convening officer and serving in units commanded by him. A judge-advocate, a barrister whose role was to provide legal advice to the court martial, was appointed by the Judge Advocate General's office.

The applicant appeared before the court martial and pleaded guilty to seven of the charges. He was sentenced to two years' imprisonment, demoted in rank from sergeant to guardsman, and dismissed from the Army. No reasons were given for this decision.

The applicant's petitions to the "confirming officer", who was the same person as the convening officer, and to the first and second "reviewing authorities" for a reduction in sentence were rejected. The reviewing authorities were both non-legally qualified army officers, advised by the Judge Advocate General's office. He was also refused leave to apply for judicial review.

At the time of the applicant's trial, court martial procedure was governed by the Army Act 1955. It has since been changed, particularly in regard to the role of the convening officer, by the Armed Forces Act 1996, which comes into force on 1 April 1997.

The European Court of Human Rights found that the convening officer played a central role in the applicant's prosecution and was closely linked to the prosecuting authorities in that, inter alia, he decided which charges should be brought, appointed the members of the court martial and the prosecuting and defending officers, and secured the attendance of witnesses at the hearing. All the members of the court martial were military personnel subordinate in rank to the convening officer.

Furthermore, he also acted as confirming officer. The decision of the court martial was not effective until ratified by him and he had power to vary the sentence imposed. This was contrary to the well- established principle that a tribunal should have the power to make a binding decision which could not be altered by a non-judicial authority.

In these circumstances, the applicant's doubts about the tribunal's independence and impartiality were objectively justified and there had been a violation of article 6.

Since the court could not speculate as to what the outcome of the court martial proceedings might have been had the violation of article 6 not occurred, it did not award any compensation. Nor could it quash his conviction. However, it awarded in full the applicant's legal costs of pounds 23,956.25.