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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Spear & Ors, R v [2001] EWCA Crim 2 (15 January 2001) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2001/2.html Cite as: [2001] EWCA Crim 2, [2001] QB 804 |
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Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE HOLMAN
and
MR JUSTICE GOLDRING
____________________
R |
Appellant |
|
- v - |
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JOHN SPEAR, PHILIP HASTIE & DAVID MORTON BOYD |
Respondents |
____________________
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
John MacKenzie (instructed by Sheratte Kaleb for the Respondents (Spear and Hastie))
Gilbert Blades (instructed by Gilbert Blade for the Respondent (Boyd))
____________________
Crown Copyright ©
LAWS LJ:
INTRODUCTORY
THE SCOPE OF THE APPEALS
"The applicant has arguable grounds on the Article 6 point. He was tried by a board including a permanent president. Judge Pearson's ruling that the appointment of a permanent president does not give rise to an impartial and independent tribunal... provides the basis of an appeal. The habitual late legal aid point is also arguable.
I do not give leave on the other grounds..."
THE FACTS OF THE ALLEGED OFFENCES
Spear & Hastie
Boyd
THE ISSUES
(1) THE PERMANENT PRESIDENT
"In the determination... 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..."
Material Strasbourg Jurisprudence
"73. The Court recalls that in order to establish whether a tribunal can be considered 'independent', regard must be had inter alia to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of impartiality. [A footnote then refers to Bryan v UK (1996) 21 EHRR 342, para. 37.]
As to the question of 'impartiality', there are two aspects to this requirement. First, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect.
The concepts of independence and impartiality are closely linked and the Court will consider them together as they relate to the present case.
74. The Court observes that the convening officer, as was his responsibility under the rules applicable at the time, played a significant role before the hearing of Mr Findlay's case. He decided which charges should be brought and which type of court-martial was most appropriate. He convened the court-martial and appointed its members and the prosecuting and defending officers.
Under the rules then in force, he had the task of sending an abstract of the evidence to the prosecuting officer and the judge advocate and could indicate passages which might be inadmissible. He procured the attendance at trial of the witnesses for the prosecution and those 'reasonably requested' by the defence. His agreement was necessary before the prosecuting officer could accept a plea to a lesser charge from an accused and was usually sought before charges were withdrawn.
For these reasons the Court, like the Commission, considers that the convening officer was central to Mr Findlay's prosecution and closely linked to the prosecuting authorities.
75. The question therefore arises whether the members of the court-martial were sufficiently independent of the convening officer and whether the organisation of the trial offered adequate guarantees of impartiality.
... It is noteworthy that all the members of the court-martial, appointed by the convening officer, were subordinate in rank to him. Many of them, including the President, were directly or ultimately under his command. Furthermore, the convening officer had the power, albeit in prescribed circumstances, to dissolve the court-martial either before or during the trial.
76. In order to maintain confidence in the independence and impartiality of the court, appearances may be of importance. Since all the members of the court-martial which decided Mr Findlay's case were subordinate in rank to the convening officer and fell within his chain of command, Mr Findlay's doubts about the tribunal's independence and impartiality could be objectively justified.
77. In addition, the Court finds it significant that the convening officer also acted as 'confirming officer'. Thus, the decision of the court-martial was not effective until ratified by him, and he had the power to vary the sentence imposed as he saw fit. This is contrary to the well-established principle that the power to give a binding decision which may not be altered by a non-judicial authority is inherent in the very notion of 'tribunal' and can also be seen as a component of the 'independence' required by Article 6(1).
78. The Court further agrees with the Commission that these fundamental flaws in the court-martial system were not remedied by the presence of safeguards, such as the involvement of the judge advocate, who was not himself a member of the tribunal and whose advice to it was not made public or the oath taken by the members of the court-martial board.
79. Nor could the defects referred to above be corrected by any subsequent review hearings. Since the applicant's hearing was concerned with serious charges classified as 'criminal' under both domestic and Convention law, he was entitled to a first instance tribunal which fully met the requirements of Article 6(1)."
"66. ... As the independence and impartiality of the two civilian judges is not disputed, the Court must determine what the position was with regard to the military judge.
67. The Court notes that the status of military judges sitting as members of National Security Courts provides certain guarantees of independence and impartiality. For example, military judges undergo the same professional training as their civilian counterparts, which gives them the status of career members of the Military Legal Service. When sitting as members of National Security Courts, military judges enjoy constitutional safeguards identical to those of civilian judges; in addition, with certain exceptions, they may not be removed from office or made to retire early without their consent...; as regular members of a National Security Court they sit as individuals; according to the Constitution, they must be independent and no public authority may give them instructions concerning their judicial activities or influence them in the performance of their duties...
68. On the other hand, other aspects of these judges' status make it questionable. Firstly, they are servicemen who still belong to the army, which in turn takes its orders from the executive. Secondly, they remain subject to military discipline and assessment reports are compiled on them by the army for that purpose... Decisions pertaining to their appointment are to a great extent taken by the administrative authorities and the army... Lastly, their term of office as National Security Court judges is only four years and can be renewed.
69. The Court notes that the National Security Courts were set up pursuant to the Constitution to deal with offences affecting Turkey's territorial integrity and national unity, its democratic regime and its State security... Their main distinguishing feature is that, although they are non-military courts, one of their judges is always a members of the Military Legal Service.
...
72. Mr Incal was convicted of disseminating separatist propaganda capable of inciting the people to resist the government and commit criminal offences, for participating in the decision to distribute the leaflet in issue, taken on 1 July 1992 by the executive committee of the Izmir section of the HEP [the People's Labour Party, which was dissolved by the Constitutional Court on 14 July 1993]... As the acts which gave rise to the case were considered likely to endanger the founding principles of the Republic of Turkey, or to affect its security, they came ipso jure under the jurisdiction of the National Security Courts...
The Court notes, however, that in considering the question of compliance with Article 10 [which was also raised in the case] it did not discern anything in the leaflet which might be regarded as incitement of part of the population to violence, hostility or hatred between citizens (see paragraph 50 above)... In addition, the Court attaches great importance to the fact that a civilian had to appear before a court composed, even if only in part, of members of the armed forces.
It follows that the appellant could legitimately fear that because one of the judges of the Izmir National Security Court was a military judge it might allow itself to be unduly influenced by considerations which had nothing to do with the case...
73. In conclusion, the applicant had legitimate cause to doubt the independence and impartiality of the Izmir National Security Court.
There has accordingly been a breach of Article 6 # 1."
"50. The Court notes that the relevant passages in the leaflet criticised certain administrative and municipal measures taken by the authorities, in particular against street traders. They thus reported actual events which were of some interest to the people of Izmir.
The leaflet began by complaining of an atmosphere of hostility towards citizens of Kurdish origin in Izmir and suggested that the measures concerned were directed against them in particular, to force them to leave the city. The text contained a number of virulent remarks about the policy of the Turkish government and made serious accusations, holding them responsible for the situation. Appealing to 'all democratic patriots', it described the authorities' actions as 'terror' and as part of a 'special war' being conducted 'in the country' against 'the Kurdish people'. It called on citizens to 'oppose' this situation, in particular by means of 'neighbourhood committees'...
The Court certainly sees in these phrases appeals to, among others, the population of Kurdish origin, urging them to band together to raise certain political demands. Although the reference to 'neighbourhood committees' appears unclear, those appeals cannot, however, if read in context, be taken as incitement to the use of violence, hostility or hatred between citizens."
The court proceeded to hold that Mr Incal's conviction was disproportionate to the aim pursued, and therefore unnecessary in a democratic society; accordingly there had been a violation of Art. 10.
The Facts Relating to PPCM Appointments
McKendry
"(1) I am concerned as to the terms of the appointment of these Permanent Presidents. It seems to me that there is no fixed time limit other than a time which may be quite short - two, three or four years; certainly two years is probably too short to ensure full independence, four years may be suitable - I express no comment on that.
(2) I am concerned as to their training. This reference to their visiting the APA [sc. the prosecuting authority, whose role we have described], I suspect that is mistyping, nevertheless it is there in their current job description and I must be concerned with the perception of bias, and it does not look appropriate, in my view, for Permanent Presidents to be told they should attend a briefing from the Prosecuting Authority.
(3) I am concerned obviously with their potential removal. Clearly anybody exercising judicial or quasi-judicial functions should be free from arbitrary removal, and there should be some sort of guarantee that the removal would only be on the basis of some sort of misconduct within that particular office. There is no security, therefore, it would seem to me, that applies to Permanent Presidents at the present time in their role.
(4) I am obviously also concerned with the question of reporting, whether it be annual - which I doubt; it is more likely to be every two years, or perhaps on the renewal of their appointment - I cannot say, but certainly there is some reporting that appears to take place, and it seems to me again that is a significant difficulty which affects the perception of independence.
Now, I have specified those three [in fact, four] as being the main concerns that I have... those particular concerns are sufficient in my view for me to rule that in the particular circumstances of the system as it now stands, the appointments of Permanent Presidents do not give rise to an impartial and independent tribunal."
The judge advocate was at pains to insist that his ruling was "limited to this particular case"; but its reasoning plainly applies at least to all DCMs presided over by a PPCM.
Submissions for the Appellants
"Speaking for myself, having of course sat in on many, many sentencing matters with Permanent Presidents, I can say that I have found that the junior members... the fact that they happen to be junior in rank, has not prevented them from being very robust in their sentencing arguments."
As judge advocate he would not, of course, have participated in the court's deliberations upon conviction. It is to be noted that by paragraph 70(4) of the Court Martial (Army) Rules 1997 the junior officer is required to speak first in the course of any court martial's deliberations. The provision is plainly intended to ensure that junior members' genuine opinions are put forward.
Starrs
"… (3) that security of tenure was an important cornerstone of judicial independence but temporary sheriffs did not as a matter of law enjoy security of tenure in the normally accepted sense of the term… ; (4) that it was relevant that temporary sheriffs were very often persons who hoped to graduate to permanent employment (and current practice tended to encourage this practice), which, taken with the terms of s.11(4), might tend to encourage the perception that temporary sheriffs who were interested in advancement might be influenced in their decision making to avoid unpopularity with the Lord Advocate… ; (5) that the practice followed by the Lord Advocate in not renewing appointments only in certain classes of case was not an adequate substitute for security of tenure, being open to alteration from time to time, and the power of recall in s.11(4), in contrast to an objective guarantee of security of tenure such as existed for permanent sheriffs in s.12 of the Act, was fatal to the compatibility of the present system with Art. 6… ; (6) that the fact that a temporary sheriff might remain in practice as an advocate or solicitor did not, at least in criminal cases, give rise to doubts as to his objective impartiality or independence: his judicial oath was not a sufficient guarantee in itself, not being so regarded in the case of a permanent sheriff, but given that the only other party was the procurator fiscal, it was difficult to see why he might be inclined to decide the case in favour of the prosecution because of his own interest in another case…"
There are, certainly, some differences of emphasis as between the three judgments in the case, but with very great respect we need not for present purposes travel into their Lordships' individual reasoning.
Conclusion on the Permanent President Issue
"In my opinion the Charter was not intended to undermine the existence of self-disciplinary organisations such as, for example, the Canadian Armed Forces... The existence of a parallel system of military law and tribunals, for the purpose of enforcing discipline in the military, is deeply entrenched in our history... An accused's right to be tried by an independent and impartial tribunal, guaranteed by s.11(d) of the Charter, must be interpreted in this context."
(2) THE PART-TIME JUDGE ADVOCATE
(3) LATE LEGAL AID
"He heard Sgt Spear shouting in the corridor outside... Lane's room, he heard a lot of banging and Lane... shouting. He heard what he believed to be a number of dull thuds after which... Lane came into his room covered with blood..."
Here, says Mr Mackenzie, Bright implicates Spear only. There is no reference to Hastie. But his witness statement was expressed differently. There he implicated both appellants; as he did in his evidence before the court martial. Mr Mackenzie says that had he known of entry 26 he would have submitted that the appellants should be separately represented at their trial.
"... there have been many occasions on which the attention of a witness was drawn to something he said on an earlier occasion which conflicted or it was said conflicted with the evidence he gave before you. Usually this previous conflicting statement was a statement he'd made to the police. That position was certainly reached in the case of Lane, but it applies to several other witnesses as well. I'll remind you of some of those inconsistencies when I review the evidence before you..."
And the judge advocate proceeded to do so.