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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Dundon, R v [2004] EWCA Crim 621 (18 March 2004) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2004/621.html Cite as: [2004] EWCA Crim 621 |
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COURT MARTIAL APPEALS COURT
Strand, London, WC2A 2LL |
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B e f o r e :
(LORD JUSTICE ROSE)
MR JUSTICE DOUGLAS BROWN
and
MR JUSTICE NEWMAN
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R |
Appellant/ Claimant |
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- and - |
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Richard John DUNDON |
Respondent Defendant |
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Mr P Havers QC & Mr T Otty appeared both for the Respondent and for the interested party the
Secretary of State for Defence
Hearing dates : 8th March 2004
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Crown Copyright ©
The Vice President :
"3. Judge Advocates must be free from any supervisional restraints in order to carry out independently the duties required of them by law. In the conduct of their professional duties at Courts Martial Judge Advocates are accountable only in so far as the standard and performance of their duties are concerned to the Judge Advocate of the Fleet.
4. The JAF is solely responsible for reporting on the professional performance of Judge Advocates in the conduct of their duties in courts martial trial. 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 appointment 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 report being prepared on them concerning their conduct of those duties for promotion, appointing or training purposes."
Also, the briefing notes for naval courts martial, presidents and court members applicable at the time of Grieves' court martial had been amended by the time of the appellant's court martial to include a new paragraph in relation to independence and impartiality in these terms:
"7. In accordance with QRRN Article 3631 the performance as a member of a Court Martial must be carried out independently and impartially. Accordingly Court Martial members are not to be subjected to any external influence or pressure before, during or after any case on which they sit. Any attempt to do so may give rise to an offence of attempting to pervert the course of justice or an offence under s14A(1) of the NDA 57. Further, their performance shall not be considered or evaluated in the preparation of any personal report, assessment or other document used in whole or part for the purpose of determining whether a member qualified to be promoted, or qualified or suited for particular appointments or training."
In the appellant's trial, the judge advocate directed the members of the tribunal (a Commander, Acting Commander, Lieutenant Commander and Warrant Officer) as to their roles, and in particular, that the Judge Advocate should be informed immediately if any pressure was put on them regarding the case either before the trial started, during the course of the trial or when the case had been disposed of. The appellant, when asked, made no objection to any member of the court. After the Judge Advocate, the president and members of the court had been sworn in, the Judge Advocate again emphasised that it was imperative that they remain independent and impartial throughout the course of the trial and that no pressure was brought to bear on them from any outside source.
"80. Fourthly, the post of PPCM does not exist in the naval system, the president of a naval court-martial being appointed for each court-martial as it is convened. The applicant pointed out that, as a result, the entire court-martial was convened on an ad hoc basis. The Government explained that since there were less naval courts-martial, there was no need for a group of officers with the sole task of acting as PPCMs and considered that the naval court-martial complied with Article 6 s1 even without PPCMs.
81. The Court considers that the absence of a full-time PPCM, with no hope of promotion and no effective fear of removal and who was not subject to report on his judicial decision-making ( the Cooper judgment para 118) deprives naval court-martials of what was considered, in the air-force context, to be an important contribution to the independence of an otherwise ad hoc tribunal
82. Fifthly, and most importantly, the Judge Advocate in a naval court-martial is a serving naval officer who, when not sitting in a court-martial, carries out regular naval duties. In contrast, the Judge advocate in the air-force is a civilian working full-time on the staff of the Judge Advocate General, himself a civilian.
83. The applicant considered this distinction sufficient of itself to conclude as to the lack of independence of naval courts-martial… The CNJA, who appointed the Judge Advocate, is a service appointment. The JAF is not responsible for the appointment of the Judge Advocate…
85. The Court notes that, as in the air-force, the naval Judge Advocate fulfils a pivotal role in the court-martial but that, unlike his air-force equivalent, he is a serving naval officer in a post which may or may not be a legal one and who, although "ticketed" indefinitely, sits in courts-martial only from time to time. As to the Government's reliance on the involvement of a civilian JAF, the Court observes that the JAF has no input into naval court-martial proceedings, his principal role being to report to the Reviewing Authority on those proceedings. Further, it is not the JAF but the CNJA (a naval officer) who is responsible for the initial "ticketing" of a Judge Advocate (albeit with the agreement of the JAF).
86. Moreover, the Court notes with some concern certain reporting practices as regards Judge Advocates which applied at the relevant time. The JAF could pass comments about a Judge Advocate's court-martial performance to CNJA… In addition, at the relevant time the JAF's report on a Judge Advocate's judicial performance could be forwarded to the Judge Advocate's service reporting officer. While this may not actually have happened in the present case, the Judge Advocate took up his duties in the applicant's court-martial at a time when his performance in those proceedings could, in principle, have been the subject of a report to his evaluating service officer. It is not submitted that QRRN 3630 was in force at the time of the present applicant's court-martial (see paragraph 32 above).
87. For these reasons, the Court considers that even if the naval Judge Advocate appointed to the applicant's court-martial could be considered to have been independent despite the reporting matters highlighted in the preceding paragraph, the position of a naval Judge Advocate cannot be considered to constitute a strong guarantee of the independence of a naval court-martial...
89.Accordingly, the lack of a civilian in the pivotal role of Judge Advocate deprives a naval court-martial of one of the most significant guarantees of independence enjoyed by other services' courts-martial (army and air-force court martial systems being the same for all relevant purposes-the Cooper judgment, s107), for the absence of which the Government have offered no convincing explanation.
90.Sixthly and finally, the Court considers the Briefing Notes sent to members of naval courts-martial to be substantially less detailed and significantly less clear than the CMAU (RAF) Briefing Notes examined in detail in the above-cited Cooper case (see paragraphs 45-62 of that judgment). The Court considers that they are consequently less effective in safeguarding the independence of the ordinary members of courts-martial from inappropriate outside influence.
91.The Court accordingly finds that the distinction between the air-force court-martial system assessed in the above-cited Cooper case and naval court-martial system at issue in the present case are such that the present applicant's misgivings about the independence and impartiality of his naval court-martial, convened under the 1996 Act, can be considered to be objectively justified. His court-martial proceedings were consequently unfair."
"Regard must be had inter alia to the manner of appointment of its members and their 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 prejudices 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."
In Cooper in relation to an RAF court-martial the court said at paragraph 117
"The Judge Advocate is a legally qualified civilian appointed to the staff of the JAG (also a civilian) by the Lord Chancellor and from there to each court-martial by the JAG. The independence of air-force Judge Advocates is not questioned by the applicant and the court considers that there is no ground upon which to do so…. The Court finds that the presence in a court-martial of a civilian with such qualifications and with such a pivotal role in the proceedings constitutes not only an important safeguard but one of the most significant guarantees of the independence of the court-martial proceedings"
The importance of a civilian Judge Advocate was central to the court's decision in Grieves. The absence of a civilian Judge Advocate at the appellant's trial as well as the manner of his appointment by the Chief Naval Judge Advocate, (as now remedied by the 2004 Order), gave rise to breaches of the appellant's Article 6 rights.