R v Spear; R v Hastie; R v Boyd; R v Williams and nine other defendants (Conjoined appeals)

JurisdictionEngland & Wales
JudgeLORD BINGHAM OF CORNHILL
Judgment Date18 July 2002
Neutral Citation[2002] UKHL 31
Date18 July 2002
CourtHouse of Lords
Boyd
Hastie and Spear Saunby

And Others

(Appellants)
and
The Army Prosecuting Authority
and
The Royal Air Force Prosecuting Authority
and
The Treasury Solicitor
(Respondents)

[2002] UKHL 31

Lord Bingham of Cornhill

Lord Steyn

Lord Hutton

Lord Scott of Foscote

Lord Rodger of Earslferry

HOUSE OF LORDS

LORD BINGHAM OF CORNHILL

My Lords,

1

The conjoined appeals before the House fall into two groups. The first group comprises the three cases of Aircraftman Boyd and Messrs Spear and Hastie. These three appellants were all non-commissioned officers, Boyd in the Royal Air Force, Spear and Hastie in the army. All three were charged (Spear and Hastie jointly) with assault occasioning actual bodily harm to another member of their respective services. All three were tried by district court-martial, pleaded not guilty, were convicted and were sentenced. At both the courts-martial a permanent president of courts-martial (or PPCM, Wing Commander Chambers in the first case, Lieutenant Colonel Stone in the second) presided. The sole issue in the appeal before the House in these cases is whether, because of the part played by the PPCM, the courts-martial lacked the qualities of independence and impartiality which article 6(1) of the European Convention on Human Rights requires of any judicial tribunal. The Courts-Martial Appeal Court (Laws LJ, Holman and Goldring JJ) decided this issue against the accused: [2001] QB 804.

2

The second group of appeals comprises the cases of Mr Saunby, Sapper Clarkson, Lance Corporal English, Flying Officer Williams, Senior Aircraftman Dodds, Messrs Leese, Marsh and Webb and Aircraftman Ashby. They were charged with a variety of different offences (Clarkson and English jointly). All appeared before district courts-martial (DCMs) except Williams (who, as a commissioned officer, appeared before a general court-martial, or GCM). All pleaded not guilty but were convicted, save for Ashby who pleaded guilty. A variety of different sentences were passed, ranging from 84 days' imprisonment and dismissal (Saunby, Webb) to forfeiture of three years' seniority (Williams). Petitions for review were rejected in all cases save in that of Dodds, whose sentence of 112 days' detention was reduced to 28 days'. The Courts-Martial Appeal Court (Laws LJ, Turner and McCombe JJ) dismissed appeals by all appellants save in the case of Marsh, whose sentence of 56 days' imprisonment was reduced to 42 days' detention, a reduction which greatly mitigated the financial loss suffered by him on leaving the service: 30 July, 2001, unreported. All the offences of which these appellants were convicted were offences under the ordinary law applicable in the United Kingdom. All the offences (with two exceptions) were committed within the United Kingdom. The issue which arises in all these appeals is whether a trial by court-martial in the United Kingdom of an offence against the ordinary criminal law of the land is compatible with article 6(1) of the European Convention, either generally or in cases where the offence in question had been committed within the United Kingdom.

3

Since the dawning of the modern age the defence of the state against the threats and depredations of external enemies has been recognised as one of the cardinal functions of government. To this end most countries have over time established regular armed forces, in this country a navy, then an army, and then in due course an air force. The effectiveness of such forces has been recognised to depend on their being disciplined forces: that is, forces in which lawful orders will be obeyed, the law will be observed and appropriate standards of self-control and conduct will be shown.

4

While disciplinary rules and procedures will inevitably vary from state to state, three principles would now, I think, command acceptance in any liberal democracy governed by the rule of law. (In stating these principles I draw no distinction between different services, although the issues in these appeals do not concern the Royal Navy. Nor do I distinguish between regular and reserve or volunteer forces, or between men and women. It is convenient for purposes of exposition to speak of soldiers and of the army. Since the Army Act 1955 and the Air Force Act 1955 are, in the respects relevant to these appeals, indistinguishable, I shall refer only to the former and to the Courts-Martial (Army) Rules 1997 (SI 1997/169)). First, a man does not by becoming a soldier cease to be a citizen. On becoming a soldier he subjects himself to duties and exposes himself to the risk of penalties to which a civilian is not subject or exposed. But he remains subject to almost every law, including the criminal law, which binds other citizens and continues to enjoy almost all the same rights, including the right (if a charge of serious misconduct is made against him) to a fair trial before an independent and impartial tribunal. Secondly, the maintenance of the discipline essential to the effectiveness of a fighting force is as necessary in peacetime as in wartime: a force which cannot display the qualities mentioned above in time of peace cannot hope to withstand the much more testing strains and temptations of war. Thirdly, and whatever the practice in former times, a modern code of military discipline cannot depend on arbitrary decision-making or the infliction of savage punishments, nor can it depend on inherited habits of deference or gradations of class distinction. Such a code must of course reflect the hierarchical structure of any army and respect the power of command. But an effective code of military discipline will buttress not only the respect owed to their leaders by those who are led but also, and perhaps even more importantly, the respect owed by leaders to those whom they lead and which all members of a fighting force owe to each other.

5

The dual status of the soldier, as both soldier and citizen, raises no issue where he is said to have committed a purely military offence, that is, an offence which could not be committed by anyone who was not a soldier. Some such offences are potentially very serious: mutiny, desertion, absence without leave striking a superior officer are examples. Since these are offences which cannot be committed by those not subject to military discipline it is unsurprising that they cannot be tried in the ordinary courts of the land and can only be tried in a military tribunal. But the effect of section 70 of the Army Act 1955 (as my noble and learned friend Lord Rodger of Earlsferry, whose citation of the relevant legislation and authority I gratefully adopt and need not repeat, has pointed out) is to expose the soldier accused of an offence against the ordinary criminal law of the land to prosecution either in the ordinary courts or in a military tribunal. Since he cannot be tried in either tribunal if he has already been tried in the other for substantially the same offence (see section 133 of the Army Act, and the ordinary common law rules of autrefois convict and acquit), a question may arise whether he should face trial in a civil court or in a military tribunal. As my noble and learned friend has shown, no hard and fast rules have been laid down to resolve this problem where it arises. Instead, a pragmatic solution has been adopted, largely dependent on identification of the public interest which the soldier's allegedly criminal conduct has infringed. If it appears to be the general public interest which has been injured (as where a civilian has been injured or non-military property damaged or stolen) a civil court is ordinarily regarded as the more appropriate forum, since the defendant's status as a soldier is essentially irrelevant to his criminal conduct. If, however, the public interest which the soldier's allegedly criminal conduct has infringed is primarily a service interest (as where another soldier has been injured or military property has been damaged or stolen) the charge is ordinarily considered appropriate for trial by a military tribunal: the general public interest is much less directly engaged, and an internal offence of this kind may well have a direct effect on the morale and discipline of the unit involved.

6

The practice of other states is not dissimilar to our own. So much appears from such decisions as MacKay v The Queen (1980) 114 DLR (3rd) 393 at 413-414, 416-418, 419-421, 423-426; In re Tracey, Ex p Ryon (1989) 166 CLR 518 at 543-544; R v Généreux (1992) 88 DLR (4th) 110 at 135-136, 156-157. That there is a rational basis for the practice is made plain in those decisions, and in the statement of Air Chief Marshal Sir Anthony Bagnall, the Vice Chief of the Defence Staff which is before the House. In Findlay v United Kingdom (1997) 24 EHRR 221 the defendant was charged with a number of offences of which the more serious were offences against the ordinary criminal law. The European Court of Human Rights found serious breaches of article 6(1) of the convention in the structure and procedure under which courts-martial were then conducted, and a number of changes were made in the Armed Forces Act 1996. The effect of these changes was well summarised by Laws LJ in the first of the judgments under appeal: R v Spear; R v Boyd [2001] QB 804, 812-813, para 18. There is, however, nothing in the judgment of the European Court in Findlay, or in the earlier case of Engel v The Netherlands (No 1) (1976) 1 EHRR 647 or in the more recent case of Morris v United Kingdom (2002) 34 EHRR 1253, to suggest that trial by court-martial, whether of civil or purely military offences, necessarily involves a violation of rights protected by article 6(1).

7

Lord Thomas of Gresford QC directed his initial challenge on behalf of the second group of appellants to the terms of section 70 of the Army Act 1955, which he...

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