Military

Human rights - court-martial presided over by permanent president of court-martial - right to trial by independent and impartial tribunal not violatedR v Spear and Another...Human rights - court-martial presided over by permanent president of court-martial - right to trial by independent and impartial tribunal not violatedR v Spear and Another; R v Boyd: CA (Laws LJ, Holman and Goldring JJ): 15 January 2001The defendants were each convicted, by a court-martial presided over by a permanent president of court-martial, of an offence of assault occasioning actual bodily harm.

Each appealed against conviction on the ground that the position of a permanent president of court-martial violated the right of a fair trial under article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, as set out in sched 1 to the Human Rights Act 1998, to trial by an independent and impartial tribunal.

John Mackenzie (instructed by Sheratte Caleb & Co) for the defendants in the first appeal.

Gilbert Blades (instructed by Wilkin Chapman Epton Blades, Lincoln) for the defendant in the second appeal.

Philip Havers QC and Sally Howes (instructed by the Army Prosecuting Authority) for the Crown in the first appeal.

Philip Havers QC and Dingle Clark (instructed by the Royal Airforce Prosecuting Authority) for the Crown in the second appeal.Held, dismissing the appeals, that the position of a permanent president of court-martial was categorically different from that of a temporary sheriff in Scotland (who was appointed by the executive and did not enjoy security of tenure) which the High Court of Justiciary had held in Starrs v Ruxton, 2000 SLT 42 to violate article 6; that a permanent president operated outside the ordinary chain of military command, there was no record of a permanent president ever having been removed from that position, the appointment was the officer's last posting and offered no prospects of promotion or preferment thereafter, the appointments were for no less than four years, and no reports on their decision-making functions had been made since the coming into force of the Armed Forces Act 1996; that those measures and practices offered objective guarantees which in the court-martial setting were well sufficient for the purposes of article 6(1); and that, accordingly, the defendants' convention rights had not been violated.