PROCEDURE

The case was referred to the Court, as established under former Article 19 of the Convention, by the Government of the United Kingdom of Great Britain and Northern Ireland (“the Government”) on 14 August 1998, within the three-month period laid down by former Articles 32 § 1 and 47 of the Convention. It originated in an application (no. 27267/95) against the United Kingdom lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 by a British national, Mr David Hood, on 18 April 1995. The Government’s application referred to former Articles 44 and 48 and to the declaration whereby the United Kingdom recognised the compulsory jurisdiction of the Court (former Article 46). Although the Government reserved its position as to whether they would contest the Commission’s opinion as to a violation of Article 5 §§ 3 and 5, the express object of the reference was to obtain a decision as to the amount of just satisfaction, if any, which should be awarded to the applicant under Article 41 of the Convention.

In response to the enquiry made in accordance with Rule 33 § 3 (d) of former Rules of Court A1, the applicant stated that he wished to take part in the proceedings and designated the lawyer who would represent him (former Rule 30).

As President of the Chamber which had originally been constituted (former Article 43 of the Convention and former Rule 21) in order to deal, in particular, with procedural matters that might arise before the entry into force of Protocol No. 11, Mr Thór Vilhjálmsson, the Vice-President of the Court at the time, acting through the Registrar, consulted the Agent of the Government and the applicant’s lawyer on the organisation of the written procedure. Pursuant to the order made in consequence, the Registrar received both the Government’s and the applicant’s memorials on 17 November 1998.

After the entry into force of Protocol No. 11 on 1 November 1998 and in accordance with the provisions of Article 5 § 5 thereof, the case was referred to the Grand Chamber of the Court. The Grand Chamber included ex officio Sir Nicolas Bratza, the judge elected in respect of the United Kingdom (Article 27 § 2 of the Convention and Rule 24 § 4 of the Rules of Court), MrL.Wildhaber, the President of the Court, Mrs E. Palm, Vice-President of the Court, and Mr J.-P. Costa and Mr M.Fischbach, Vice-Presidents of Sections (Article 27 § 3 of the Convention and Rule 24 §§ 3 and 5 (a)). The other members appointed to complete the Grand Chamber were Mr L. Ferrari Bravo, Mr P. Kūris, Mr W. Fuhrmann, Mr K. Jungwiert, Mr B. Zupančič, Mrs N. Vajić, Mr J. Hedigan, Mrs W. Thomassen, Mrs M. Tsatsa-Nikolovska, Mr T. Panţîru, Mr E. Levits and Mr K. Traja (Rule 24 § 3 and Rule 100 § 4). Subsequently Sir Nicolas Bratza, who had taken part in the Commission’s examination of the case, withdrew from sitting in the Grand Chamber (Rule 28). The Government accordingly appointed Sir John Freeland to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1).

The President decided that it was not necessary to invite the Commission to delegate one of its members to take part in the proceedings before the Grand Chamber (Rule 99).

In accordance with the President’s decision, a hearing in this case and in the case of Cable and Others v. the United Kingdom took place in public in the Human Rights Building, Strasbourg, on 9 December 1998. There appeared before the Court: (a) for the Government Mr C. Whomersley, Foreign and Commonwealth Office, Agent, Mr P. Havers QC, Counsel; (b) for the applicant Mr J. Mackenzie, Solicitor, Counsel, Ms K. Duigan, Adviser. The Court heard addresses by Mr Mackenzie and Mr Havers.

THE FACTS

I. The CIRCUMSTANCES OF THE CASE

The applicant, David Hood, is a British national born in 1970. He resides in the United Kingdom. At the relevant time, he was a soldier with the regular forces of the British army.

Prior to the events in question, the applicant went absent without leave from his unit in Germany three times. Prior to his third absence, he had been remanded for trial by court martial on an assault charge (later abandoned), he remained absent for almost two and a half years and he gave himself up to the civilian police in December 1993.

A. The relevant detention and court martial of the applicant

On 11 May 1994 the applicant did not return after two weeks’ leave (his fourth absence without leave). On 27 November 1994 he was arrested at his home by the civilian police and on 28 November 1994 he was taken by army escort to Brompton Barracks. Before the Court, the parties disputed whether the applicant was then brought before his commanding officer on 29 November 1994 pursuant to Rule 4 of the Rules of Procedure (Army) 1972 (see paragraph 29 below).

The applicant remained in close arrest until his court martial. He was detained in a cell in a guardroom under the supervision of a guard apart from certain occasions when he was taken to hospital for psychiatric care.

In or about December 1994 the applicant was informed that he would have to appear before the unit adjutant after Christmas. He retained a solicitor prior to Christmas, who advised him until 17 January 1995. On 4 January 1995 the applicant appeared before the unit adjutant and was given the abstract of evidence. He was told that he should read the abstract and check that it was accurate. The applicant was cautioned pursuant to Rule 10 of the Rules of Procedure (Army) 1972 (see paragraph 32 below).

Acting on his original solicitor’s advice, the applicant prepared his own statement and obtained a statement from his girlfriend, which statements were completed on 4 and 19 January 1995 respectively. The applicant submitted both statements to the adjutant on 20 January 1995, which statements were then attached to the abstract of evidence. The applicant was then remanded for trial by court martial by his commanding officer and he applied for legal aid from the military authorities. The charge sheet, dated 25 January 1995 and signed by his commanding officer and on behalf of the convening officer, recorded two charges of absence without leave and two of desertion contrary to the Army Act 1955.

Although the applicant instructed his present solicitor in early February, the latter did not commence work for the applicant until legal aid was granted by the Ministry of Defence by letter dated 14 February 1995.

By notice dated 17 March 1995 a district court martial was convened to try the applicant on the charges. The court martial took place on 3 and 4 April 1995. The assistant prosecuting officer was the unit adjutant. The applicant, who was legally represented, pleaded not guilty.

During the court-martial hearing, the applicant’s solicitor challenged (under section 78 of the Police and Criminal Evidence Act 1984) the admission into evidence of the statements of the applicant and his girlfriend. The judge advocate (having heard evidence from the unit adjutant and the applicant’s representative) found that Rule 10 of the Rules of Procedure (Army) 1972 had been followed. Given the applicant’s legal representation at the relevant time and the procedures followed, the judge advocate could not see “how a fairer situation could have arisen” and, accordingly, he rejected the applicant’s challenge. The judge advocate also clarified during the court martial that “we can take it as an agreed fact that the adjutant or the assistant adjutant will either be the prosecuting or assistant prosecuting officer in any court martial”. The applicant was convicted on the two charges of absence without leave and on one of the charges of desertion, and the remaining charge of desertion was reduced to one of “absent without leave”. He was sentenced to be imprisoned for eight months and to be dismissed from the service, the sentence expressly taking account of the period of close arrest immediately preceding the court martial.

After confirmation and promulgation of the conviction and sentence, the applicant petitioned the Army. By letter dated 13 July 1995 the applicant was informed that his petition to the Army Board had been rejected. His leave application to the single judge of the Courts-Martial Appeal Court was rejected on 13 September 1995 and his further appeal to the full Courts-Martial Appeal Court was also refused on 18 March 1996.

B. The habeas corpus proceedings

The seventy-second day of the applicant’s detention fell on or around 7 February 1995. Accordingly, and pursuant to Rule 6 of the Rules of Procedure (Army) 1972 and paragraph 6.045(c) of the Queen’s Regulations (see paragraphs 31 and 38 below), a direction from the convening officer was completed on 3 February 1995 attaching an authorisation from the Commander in Chief, the latter of whom directed the applicant’s continued detention “to prevent him absconding” before trial (“the delay report”).

Having requested a copy of the delay report and informed the authorities of his intention to apply for a writ of habeas corpus, the applicant’s solicitor issued those proceedings on 17 February 1995 challenging mainly the regularity of the delay report. That report was received by the applicant’s solicitor on 20 February 1995, following which further submissions were made to the High Court.

On 21 February 1995 the High Court rejected the application. The court found, inter alia, that the delay report had been properly completed in a timely fashion. It noted that the expressed reason for the applicant’s continued detention was to prevent his absconding and found that “perfectly understandable” given the charges against him.