Military

Court-martial - constituting 'independent and impartial tribunal' - relevance of 'objective guarantees'R v Williams; R v Saunby; R v Ashby; R v Schofield; R v Marsh; R v Webb; R v Leese; R v Dodds; R v Clarkson; R v English: Courts-Martial Appeal Court (Lord Justice Laws, Mr Justice Turner and Mr Justice McCombe): 30 July 2001The defendants variously sought leave to appeal, or appealed, against convictions and sentences in a number of separate court-martial cases (Army and Royal Air Force).

The grounds of appeal against conviction included a general attack on the court-martial system as not being an independent and impartial tribunal.Lord Thomas QC and Gilbert Blades, solicitor (Wilkin Chapman Epton Blades, Lincoln) for Williams and Saunby; Geoffrey Robertson QC and David Hislop (Registrar of Criminal Appeals) for Schofield.

Gilbert Blades, solicitor (Wilkin Chapman Epton Blades, Lincoln) for the other defendants.

Philip Havers QC, Dingle Clark, Paul Rogers and Sally Howes (RAF Legal Services; Army Prosecution Authority; Ministry of Defence Legal Department; Treasury Solicitor) for the Crown.

Held, dismissing the appeals (except for Marsh's appeal against sentence), that the court was guided as to the term 'independent and impartial tribunal' in article 6 of the European Convention on Human Rights by Findlay v United Kingdom (1997) 24 EHRR 221 and In re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700; that the municipal approach to questions of apparent bias was not perceptibly different from that in the European Court of Human Rights to issues of impartiality arising under article 6(1); that that approach was appropriate provided the convention requirement of 'objective guarantees' was built onto the test; that the court found no bias and rejected the submission that considerations of military discipline and morale might colour the decision to prosecute and lead to an actual or potential or perceived bias in favour of the prosecution case; that the merits of a decision to prosecute were in fact out with article 6 (which was not concerned to embrace the prosecutor unless the trial process was at risk of being infected), and even if that were not the case, there was no vice in the fact that considerations of military discipline and morale might play their part in decisions to prosecute.