Courts-Martial: Compatibility with Article 6 of the European Convention on Human Rights
| Author | Christopher Gale |
| Published date | 01 June 2004 |
| Date | 01 June 2004 |
| DOI | http://doi.org/10.1350/jcla.68.3.216.34455 |
| Subject Matter | European Court of Human Rights |
European Court of Human Rights
Courts-martial: Compatibility with Article 6 of the
European Convention on Human Rights
Cooper v United Kingdom (App. No 48843/99)
[2003] All ER (D) 283 (Dec)
Grieves v United Kingdom (App. No. 57067/00)
[2003] All ER (D) 292 (Dec)
This is a consolidated note on two cases heard by the same court.
Cooper
The Air Force Act 1955, as amended by the Armed Forces Act 1996, the
Courts-Martial (Air Force) Rules 1997 and the Queen's Regulations for
the RAF regulated courts-martial in respect of members of the Royal Air
Force. The amendments in the 1996 Act sought to address various areas
of incompatibility identified by the European Court of Human Rights in
the courts-martial procedure as it then existed. A court-martial had
jurisdiction over persons subject to air force law, amongst other things,
in respect of civilian criminal offences. An allegation that a person
subject to air force law had committed an offence had to be reported to
the military commanding officer of the accused person. The command-
ing officer had a discretion to refer the matter to a higher authority. That
higher authority was a senior RAF officer who was not legally qualified
and who had power, amongst other things, to refer the matter to the
prosecuting authority for a decision on whether the accused should be
prosecuted. The prosecuting authority was legally qualified and, in his
prosecuting capacity, answerable only to the Attorney-General. He had
a staff, all of whom were members of the Bar or solicitors as well as being
RAF officers. He had an absolute discretion to decide whether or not to
prosecute. Arrangements for courts-martial, such as venue and time-
tabling were made by court administrative officers who were also RAF
officers. A judge advocate sat at the centre of a court-martial. He was a
legally qualified civilian and appointed by the Lord Chancellor. His role
was to ensure the fair and regular conduct of the case and to give rulings
on matters of law. He did not take part in the deliberations of the other
members of the court-martial and had no vote on the verdict. The
ordinary members of the court-martial were not required to have legal
training and were RAF officers. Discussions were chaired by the presi-
dent of the court-martial, an RAF officer who was not required to have
legal training, who also ensured that the hearing was conducted in
accordance with military tradition. The members were the sole arbiters
of fact. All guilty verdicts reached, and sentences passed, had to be
reviewed by the reviewing authority. Appeals from courts-martial lay to
216
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