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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Skuse, R. v [2002] EWCA Crim 991 (3rd May, 2002) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2002/991.html Cite as: [2002] EWCA Crim 991 |
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IN THE COURT MARTIAL APPEAL COURT
Strand, London, WC2A 2LL | ||
B e f o r e :
MR JUSTICE LEVESON
and
SIR RICHARD TUCKER
(sitting as a Judge of the Court of Appeal Criminal Division)
____________________
Regina | Respondent | |
- and - | ||
Carl Clifford SKUSE | Appellant |
____________________
Mr Philip N Havers QC and David Evans for the Respondent
Hearing dates : Tuesday 5 March 2002
____________________
Crown Copyright ©
Lord Justice Rix :
Article 6(1)
“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.”
The offences charged
“The Judge Advocate directed the court accurately and comprehensively as to the law, and summed up the evidence with clarity and fairness. No criticism is made in the petition of the summing-up, and none could be made.”
Nor has there been any criticism of that advice. It is not said, therefore, that Skuse did not have a fair trial.
Strasbourg and English authorities
“73. 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 their term 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.
The concepts of independence and objective impartiality are closely linked and the Court will consider them together as they relate to the present case.”
And in Morris v. United Kingdom the European Court, having restated those principles, immediately continued as follows:
“59. The Court notes that the practice of using courts staffed in whole or in part by the military to try members of the armed forces is deeply entrenched in the legal systems of many Member States.
It recalls its own case-law which illustrates that a military court can, in principle, constitute an “independent and impartial tribunal” for the purposes of Article 6 § 1 of the Convention. For example, in the above-mentioned Engel and Others case, the Court found that the Dutch Supreme Military Court, composed of two civilian Justices of the Supreme Court and four military officers, was such a tribunal. However, the Convention will only tolerate such courts as long as sufficient safeguards are in place to guarantee their independence and impartiality.”
“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 proceedings. 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).”
“it is simply patronising to suggest that an officer of the rank of lieutenant-colonel, or his equivalent in the Royal Air Force, will have his judgment on the concrete facts of a particular case affected by anything so amorphous as “general Army influence”.
“were it otherwise, the benign and flexible principles underlying article 6 would be turned into constricting inflexible rules, and the doing of justice would be ill-served.”
“39. This part of the appeal also, of course, engages the decision of the High Court of Justiciary in Starrs v Ruxton 2000 SLT 42. Plainly in that case the appointment of temporary sheriffs in Scotland, and its renewal or curtailment, were in the hands of the executive, and much influenced by the Lord Advocate. But the appointment of part-time judge advocates to courts-martial is done by the Judge Advocate General, who is wholly independent of the executive. His appointment, like that of the High Court and circuit judges in England, is by the Queen on the recommendation of the Lord Chancellor. Part-timers are paid for out of his budget. Any question of termination of a part-timer’s appointment is entirely in his hands. Likewise he alone decides whether to offer full-time appointment as judge advocate to a part-timer. (In fact there is nothing to suggest that at the time of this court-martial Mr Gore-Andrews entertained any ambition for appointment as a full-time judge advocate.) The executive has no hand in it. By definition, and most certainly in practice, the standards by which the Judge Advocate General applies to any question relating to the appointment of part-time judge advocates are objective, judicial standards. He has no interest in anything else. Part-time appointments have been terminated on two occasions only since the present Judge Advocate General took office in 1991: each time by reason of errors made by the judge advocate in the conduct of a trial.
“40. For those reasons the part-time judge advocate’s lack of security of tenure cannot in our judgment be said to undermine his impartiality or independence for the purposes of article 6(1). The case is thus quite different from Starrs’s case. There is, in short, simply no question of any reasonable fear or apprehension arising that the part-time judge advocate might tailor his judicial actions so as to maintain favour with the executive. The defendant’s arguments on this point are without merit.”
“In general there is a particular importance in the public interest in bringing wrongdoers to book who abuse positions of trust or of responsibility towards others, or whose wrongdoing inflicts damage upon institutions which exist to serve the public…Of course, if there were a reasonable apprehension that Service factors tended to promote the chances of a conviction, and so were an added and illegitimate feature giving a fair wind to the prosecution’s case over and above the evidence, that would give muscle and sinew to Lord Thomas’ argument. But if such factors are to be perceived as an aspect or function of the public interest, as we believe they are, they are much more than a manifestation of institutional loyalty or corps spirit, and they will themselves require that the court-martial process should be and be seen to be fair and impartial, and so far as possible achieve accurate results; otherwise military personnel, and the public outside, will alike lose confidence in it…The proposition that the involvement of service factors as considerations in the court-martial process leads, case by case, to an actual or potential perceived bias in favour of the prosecution case is a non sequitur; and so far as distinguished judges in other jurisdictions may have taken a different view, with great deference we disagree with them.”
“However, the Court finds that the presence of the Permanent President did not call into question the independence of the court martial. Rather, his term of office and de facto security of tenure, the fact that he had no apparent concerns as to future army promotion and advancement and was no longer subject to army reports, and his relative separation from the army command structure, meant that he was a significant guarantee of independence on an otherwise ad hoc tribunal.”
“the presence of these safeguards was insufficient to exclude the risk of outside pressure being brought to bear on the two relatively junior serving officers who sat on the applicant’s court martial. In particular, [the Court] notes that those officers had no legal training, that they remained subject to army discipline and reports, and that there was no statutory or other bar to their being made subject to external army influence when sitting on the case. This is a matter of particular concern in a case such as the present where the offence charged directly involves a breach of military discipline. In this respect, the position of the military members of the court martial cannot generally be compared with that of a member of a civilian jury who is not open to the risk of such pressures” (at para 72).
“The Court is of the view that the fundamental flaws which it has identified were not corrected by the applicant’s subsequent appeal to the Court Martial Appeal Court, since that appeal did not involve any rehearing of the applicant’s case but rather determined, in the form of a decision which ran effectively to two sentences, that leave to appeal against conviction and sentence should be refused.”
“…the Court has to confine itself, as far as possible, to an examination of the concrete case before it. It is accordingly not called upon to review the system of the 1979 Act in abstracto, but to determine whether the manner in which this system was applied to or affected the applicants gave rise to any violations of the Convention.”
“85. When the Strasbourg jurisprudence is taken into account, we believe that a modest adjustment of the test in R v. Gough is called for, which makes it plain that it is, in effect, no different from the test applied in most of the Commonwealth and in Scotland. The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.”
Laws LJ continued:
“25. This learning seems to us to demonstrate that the municipal approach to questions of apparent bias is not perceptibly different from that taken in Strasbourg to issues of impartiality arising under Article 6(1), and this is the basis upon which we will approach these cases. As Mr Havers submitted in reply, it is necessary to build the ECHR requirement of objective guarantees into the test ultimately formulated in Medicaments. This involves no intellectual legerdemain: the straightforward position will be that once a suggestion of bias arises the “fair-minded and informed observer” will look for guarantees, outward and visible signs of the tribunal’s impartiality; and if he finds none, or none sufficient, he may be unable to rule out bias.”
R v. Généreux
“As a result, there was no objective guarantee that his or her career as military judge would not be affected by decisions tending in favour of an accused rather than the prosecution. A reasonable person could well have entertained the apprehension that a legal officer’s occupation as a military judge would be affected by his or her performance in earlier cases…[or] that the person chosen as judge advocate had been selected because he or she had satisfied the interests of the executive…An officer’s position as military judge should not, during a certain period of time, depend on the discretion of the executive” (at 142f/143a).
The evidence relating to naval judge advocates
“73. Nothing in this Part of this Act shall prejudice the exercise by the Judge Advocate of Her Majesty’s Fleet of his functions of considering and reporting on the proceedings of courts-martial and disciplinary courts, or any other of his functions in relation to such courts.”
His prime responsibility is to review all courts martial, save for those in which the accused pleads guilty, so as to be able to advise the Admiralty Board, in effect a Rear Admiral appointed to the post of Naval Secretary, to whom the Board’s functions in this respect have been delegated, whether or not they have been properly conducted according to law. If, in his opinion, they have not been so conducted, he has the powers to which we have referred above to recommend to the Board that the conviction be quashed or any finding or sentence altered. These powers are in addition to an individual’s right, subject to leave from the single judge, to appeal any conviction or sentence to this Court. That right has been exercised in the present case and Skuse could, as part of his appeal, have asked this Court to scrutinise any allegation of error or unfairness on the part of the judge advocate: but, as stated above, there is no criticism of the judge advocate’s conduct of the court martial.
“…because they understand the particular and unique way of life of the Royal Navy, gained through their own operational experience. They can advise and direct the court in terms which reflect their detailed knowledge of the Service, and which therefore enhances the credibility of their role in the eyes of all the parties involved.”
“4. The Judge Advocate of the Fleet is solely responsible for reporting on the professional performance of judge advocates in the conduct of their duties in courts-martial trials. No other personal report, assessment or other document is to be prepared or used to determine whether an officer conducting judge advocate duties is qualified to be promoted, or is qualified or suited for particular appointments or training. Where judge advocates are appointed to general appointments, or whilst carrying out their general duties, nothing in this article shall prevent the appropriate reports being prepared on them concerning their conduct of those duties, for promotion, appointing or training purposes.”
A further amendment has been drafted to take effect in May 2002 under which the first sentence of that paragraph has been deleted and the paragraph begins “No personal report…” etc.
The evidence relating to Lieutenant Commander Blain
“Blain is doing well as a Judge Advocate, effectively applying his extensive legal knowledge. He has made good progress in developing his judicial bearing and presence in court and as he gains in experience is proving capable of handling complex and difficult tasks.”
Submissions
Discussion and decision
Remedy if breach of article 6(1)
“Applying the broader approach identified by Rose L.J., we consider that if a defendant has been denied a fair trial it will almost be inevitable that the conviction will be regarded as unsafe.”
“No doubt in many cases an unfair trial in contravention of article 6 will constitute an unsafe conviction: see for example R v Togher [2001] 1 Cr App R 457; R v Forbes [2001] 1 AC 473. But an unfairness is not always fatal to a conviction. In particular in the present context a direction that there is a persuasive burden on the accused to establish a defence under section 28 will not necessarily lead to an unsafe conviction. But if there is doubt about guilt it is not every case where an unfairness can be identified that will necessarily and inevitably lead to a quashing of the conviction.”
“On my reading of the European jurisprudence the European Court pays particular attention to the facts of the individual case before it and does not make a finding of a violation of article 6 if the applicant has suffered no injustice.”
“But I cannot accept that the outcome in Starrs would have been any different had the challenge been raised after the trial in that case was concluded and it is in my view clear from authority that the right of an accused in criminal proceedings to be tried by an independent and impartial tribunal is one which, unless validly waived by the accused, cannot be compromised or eroded.”
Waiver
Retrospectivity
Conclusion