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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Stow, R. v [2005] EWCA Crim 1157 (10 May 2005) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2005/1157.html Cite as: [2005] EWCA Crim 1157 |
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APPEAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE TREACY
and
MR JUSTICE WILKIE
____________________
Regina |
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-v- |
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Matthew Gary Stow |
____________________
Lieutenant Commander Towler appeared on behalf of the Crown (Naval Prosecuting Authority)
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Crown Copyright ©
Lord Justice Keene:
7. Section 52H provides as follows:
"(1) Her Majesty may appoint a qualified officer of Her naval forces to be the prosecuting authority for the Royal Navy; and in this Act "the prosecuting authority" means the officer so appointed.
(2) An officer shall not be qualified to be appointed as the prosecuting authority unless he is-
(a) a person who has a five year general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990;
(b) an advocate or solicitor in Scotland of at least five years' standing; or
(c) a member of the Bar of Northern Ireland, or a solicitor of the Supreme Court of Northern Ireland, of at least five years' standing."
"(4) If the prosecuting authority considers that court-martial proceedings under this Act should be instituted, he shall determine any charge to be preferred and (subject to section 52II of this Act) prefer any such charge."
"(6) The prosecuting authority shall have the conduct of any court-martial proceedings under this Act against the accused.
(7) Without prejudice to any other power of his in relation to the conduct of the proceedings, the prosecuting authority may, in accordance with rules under section 58 of this Act-
(a) amend, or substitute another charge or charges for, any charge preferred;
(b) prefer an additional charge, or additional charges, against the accused;
(c) discontinue proceedings on any charge."
1. He is appointed independently by the Sovereign under section 52H.
2. He has to be legally qualified and was in fact an employed member of the Bar of England and Wales. As such he was and is subject to the professional and ethical duties of the Bar Code of Conduct, including the duty to act with independence and the duty to the court.
3. He has an absolute discretion as to what charges should be preferred, which he exercises applying similar criteria to those applied in civilian cases by the Crown Prosecution Service. He and those who prosecute under him apply the principles of the Code for Crown Prosecutors, supplemented and adapted slightly to incorporate factors peculiar to the Armed Forces. Those principles are contained in a draft Code for Service Prosecutors which has been agreed by the Attorney-General. The decision to prosecute is thus based on legal criteria similar to those applied by the Crown Prosecution Service and in accordance with the Bar Code of Conduct.
4. He and his prosecuting staff are employed full time and exclusively on prosecution duties.
5. Like the other Prosecuting Authorities in the other branches of the Armed Forces he is under the general superintendence of the Attorney-General. Lieutenant Commander Towler has put in evidence, which we give leave for, in the shape of an extract from Hansard for 28 October 2004 in which the Solicitor-General states that:
"The service Prosecuting Authorities are subject to the general superintendence of the Attorney-General".
"CROZIER has made a most promising start to this appointment. He was already very experienced as a naval prosecutor and quickly brought his considerable expertise to bear during a busy period for his organisation which has seen the successful resolution of some long-running and complex cases. I understand that his advocacy in court is of the highest order and he has successfully appeared in the Court of Appeal as the respondent. He leads with considerable enthusiasm, exhibiting sensitive but most effective management style that manifests itself in a team of happy, well-motivated individuals who turn in consistently good results. He is an articulate and good-humoured officer with a deep commitment to the Service that reflected in his impeccable reliability and invariably good judgment."
"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."
There is no dispute that the appellant faced a criminal charge. Article 6(1) was clearly engaged. The crucial words for present purposes in that paragraph are "an independent and impartial tribunal". It is not suggested that the procedures adopted at the court-martial themselves prevented a fair trial. The main issue in this appeal, as is evident, is the position at that time of the naval Prosecuting Authority.
"The Court recalls that in order to establish whether a tribunal can be considered as "independent", regard must be had inter alia, to the manner of appointment of its members and its terms of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence.
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 (see aforementioned Findlay v. the United Kingdom judgment).
The concept of independence and objective impartiality are closely linked and, as in the Findlay case, the Court will consider them together as they relate to the present case."
"is essentially that of the judge at a criminal trial on indictment in the Crown Court."
Most of the concerns about courts-martial expressed by the European Court of Human Rights have related to the position of these two elements in the tribunal. Their role is patently crucial to the concept of an independent and impartial tribunal. Thus in Findlay, as we have already described, the Strasbourg court's main concern related to the conflicting roles of the "convening officer" in the proceedings, since he had a key prosecuting role but at the same time appointed the members of the court-martial who were subordinate in rank to him and fell within his chain of command. There was an insufficient separation of the prosecution, convening and adjudication elements.
"Crown Prosecutors must be fair independent and objective … They must not be affected by improper or undue pressure from any source."
They are also required to act in the interests of justice. The reality is that a prosecutor has the ability to influence and even mislead the court. Consequently, we accept that his independence and impartiality are matters to be considered when assessing whether or not there has been proper compliance with Article 6(1).
"the Prosecuting Authority was part of the "legal branch" which gave "general advice" to the service authorities so that that Authority's officers were subjected to pressure in relation to career prospects and discipline. The officers carrying out the functions of the Prosecuting Authority were also likely to be subordinate in rank to, and subjected to pressure from, the Higher Authority."
That related to the Prosecuting Authority of the Royal Air Force. The Grand Chamber rejected the criticism, stating at paragraph 113:
"The Prosecuting Authority is appointed by the Queen and is legally qualified. Members of his staff are legally qualified and are employed exclusively on prosecution duties. The decision to prosecute is made on the basis of legal criteria similar to those applied by the Crown Prosecution Service and in accordance with the Codes of Conduct of the respective branches of the legal profession. While the Prosecuting Authority is also the RAF Director of Legal Services, he is answerable to the Attorney General only, and is not reported upon within the service, on his prosecution duties. There being no chain of command or service connection between the Higher and Prosecuting Authorities either claimed or apparent, any seniority in rank of the Higher Authority over the Prosecuting Authority would not be sufficient to conclude, as the applicant suggests, that the latter is "likely to" be influenced by the former." (our emphasis)
There are differences between the position of the Prosecuting Authority in the Royal Air Force and that of the naval Prosecuting Authority. Even so, as Lieutenant Commander Towler emphasises, the Strasbourg court considered the position of the naval Prosecuting Authority in the case of Grieves and made no adverse comment about that position. We do, however, accept the appellant's point that the matters now being raised, such as the system of reporting upon the naval Prosecuting Authority's performance, do not seem to have been raised during Grieves and may not have been drawn to the Court's attention.
"seen the successful resolution of some long-running and complex cases."
His advocacy skills and his success in the Court of Appeal are commented on, and the appraisal refers to his team having turned in
"consistently good results."