PROCEDURE

The case originated in an application (no. 40426/98) against the United Kingdom of Great Britain and Northern Ireland lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a United Kingdom national, Mr Alan Martin (“the applicant”), on 10 March 1998.

The applicant was represented by Mr G. Blades, a solicitor practising in Lincoln. The United Kingdom Government (“the Government”) were represented by their Agents, Mr C. Whomersley and subsequently Mr J. Grainger, of the Foreign and Commonwealth Office.

The applicant complained under Articles 3 and 6 § 1 about his trial by court-martial.

The application was submitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).

The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of the Court). Within the Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.

On 29 February 2000, a Chamber of the Section decided to communicate the case to the Government and the parties each filed observations on the admissibility and the merits of the complaints.

By letters to the parties of 12 April 2002, the Section Registrar requested the parties to submit additional comments in light of the Court’s judgment in Morris v. the United Kingdom, no. 38784/97, ECHR 2002‑I.

On 17 December 2002, the Chamber elected to re-communicate the application to the Government under Rule 54 § 2 (b) Rules of Court and adjourned the case pending the judgment of the Grand Chamber in Grieves v. the United Kingdom [GC], no. 57067/00, ECHR 2003‑XII. The Chamber also decided that under the provisions of Article 29 § 3 of the Convention and Rule 54A, it would examine the merits of the application at the same time as its admissibility.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant was born in 1976 and, at the time of the introduction of his application, was serving a sentence of life imprisonment in England.

In February 1994 the applicant was living with his family in Germany, where his father was an Army Corporal serving in the Support Unit of the Rhine Garrison. On 8 February 1994 the applicant was charged with the murder of a young civilian woman who had been working in the Support Unit and whose body had been found in woods near to the army base.

As a family member residing with a member of the Armed Forces, the applicant was subject to military law (see paragraph 25 below). The German authorities waived jurisdiction pursuant to the NATO Status of Forces Agreement 1951 (see paragraph 21 below).

On 8 February 1994 the Commander of the Support Unit was appointed to act as the applicant’s Commanding Officer. The latter decided to refer the case to the Higher Authority with a view to the applicant being tried by general court-martial. The Higher Authority submitted the case for trial by general court-martial, and the court-martial was convened by the Commanding Officer (henceforth, “the Convening Officer”). The applicant obtained military legal aid on 10 February 1994.

In the meantime, the applicant’s father was posted to England and returned there on 24 March 1994. Despite his father’s return, the applicant remained subject to military law as the proceedings had already commenced (see paragraph 26 below). The applicant returned to England in April 1994 where he was detained. His father was discharged from the army in November 1994.

The applicant was returned to Germany in time for his court-martial which commenced on 21 April 1995. The court-martial board was composed of a President, who was not a permanent president, and six ordinary members. Four of the members were senior officers, all of whom were subordinate in rank to the Convening Officer and the President and one of whom was within the Convening Officer’s chain of command. Two members were civilian civil servants, who came from the United Kingdom solely for the purpose of the trial, and were placed under the Convening Officer’s command while in Germany, although they were not in his reporting chain.

The applicant’s representative submitted, inter alia, that the trial of a young civilian by court-martial was inherently unfair and oppressive and thus an abuse of process. The atmosphere in a military court would be very different from that of a civilian court and the applicant would not do himself justice. In particular, it was unfair and oppressive that he should be returned to stand trial in Germany after he had spent many months in detention in England and after his father had ceased to be subject to military law. Lastly, if tried by jury, a majority of 10 to 2 votes would be necessary to convict him, whereas a simple majority vote would suffice in a trial by court-martial.

These submissions were considered by the Vice-Judge Advocate General and were rejected, as was an application for an adjournment to allow proceedings for judicial review to commence. The trial ended with the applicant’s conviction on 3 May 1995. In accordance with the provisions of the Army Act 1995, the verdict of the court-martial was confirmed by a Confirming Officer (see paragraph 28 below).

The applicant appealed to the Courts-Martial Appeal Court, which had the power to quash the conviction if it considered it unsafe. The Lord Chief Justice, Lord Bingham of Cornhill, giving judgment on 30 July 1996, held, dismissing the appeal: “... We have some considerable sympathy with the appellant’s complaint. With the benefit of hindsight, it seems plain that the trial could have been conducted in England without undue difficulty. It would in our view have been preferable if this young appellant, whose subjection to military law was purely vicarious and involuntary, had been tried here with all the procedural safeguards which procedure in the ordinary criminal courts affords. We cannot, however, stigmatise these proceedings as abusive. They were strictly in accordance with a procedure prescribed by Parliament to apply in such cases. There was not, as is accepted, any attempt to over reach or oppress or prejudice the appellant. He had all the safeguards which a defendant in any court-martial is entitled to enjoy. Steps were taken to ensure that all members of the tribunal save one were not under the command of the convening officer, and also to ensure that the convening officer and the confirming officer were not the same person. Had the appellant been held in Germany to await trial, as he could have been, his claim to trial in England would have appeared weaker. Whether or not it proved necessary in the event to adduce the oral evidence of German factual witnesses, the greater availability of such witnesses as a trial in Germany was a legitimate reason for favouring trial there. We are satisfied that these proceedings were not an abuse of process.”

The appeal court certified a question of law for the House of Lords as to whether proceedings conducted in accordance with the 1955 Act could be considered abusive. On 9 July 1997 the House of Lords granted leave to appeal. Having heard the applicant’s legal representatives, on 16 December 1997 the House of Lords unanimously dismissed the appeal. Lords Slynn of Hadley and Hope of Craighead expressed the view that at first sight the decision to prosecute the applicant—a civilian aged only 17 at the time of the murder—by court-martial had been inappropriate. However, as Lord Hope explained: “It is not difficult to understand the utility of [section 209 of the Army Act 1955: see paragraph 24 below], in view of the greatly increased opportunities which were by then available for families and other civilian personnel to accompany the forces when serving overseas. Had the law not been changed in this respect, civilians and followers would have had to have been brought to trial in the local civil courts in the language and according to the procedures in use in those courts and, if sentenced to imprisonment, to serve the sentence in a local prison. ... Fundamental to the appellant’s argument in the present case is the proposition that the purpose of [the extension of jurisdiction in section 9 of the 1861 Act: see paragraph 29 below] was to extend to murders committed abroad the right of every person in this country who is accused of murder to have his or her guilt declared by means of a jury trial. ... It seems to me that another, and more likely, explanation is that the legislation was enacted to ensure that the grave offences with which it deals should not go unpunished when committed abroad by a British citizen. ... In view of what I have said above I do not believe that the proceedings by way of court-martial in this case can be said in themselves to have been an abuse of process. ... The question to which I now turn is whether there is any basis in the information which is available to us for describing any of the decisions taken by those in authority at the various stages in this case as so unfair and wrong as to show that the conviction in this case was unsafe. ...”

Lord Hope went on to examine the factors which would have had to have been taken into account when considering whether to prosecute the applicant by court-martial in Germany or by jury trial in England: “The timing of any consideration of the matter by the Director of Public Prosecutions would, in my view, have been of critical importance to a decision as to whether there was any unfairness in this case which might be said to render the conviction unsafe. It cannot be assumed that the Director would have been willing to take proceedings in England without knowing more about the factors which he would have wished to take into account. One obvious factor, I would have thought, was the availability of witnesses. In his letter of 14 June 1994 to the Attorney General the Director of Army Legal Services had stated that many of the witnesses were German and that they could not be forced to attend a trial in England. Further details were provided at the request of the Attorney General in a letter by the Director of Army Legal Services dated 25 November 1994. In this letter it is stated that there were 13 German witnesses who could be divided into three categories—those who saw the appellant in the woods near the scene of the murder, those concerned with the finding of the body and police and forensic experts. The defence had not yet indicated what evidence would be agreed. The Director thought that, while some of their evidence might be agreed, it was unlikely that this would include the police and forensic experts. He believed that they were the witnesses who would be most unlikely to cause difficulties if asked to travel to England to give evidence. He added that one of the forensic scientists who was responsible for examining secretions and bloodstains—a matter which was of crucial importance in this case as there were no eyewitnesses—was being difficult to deal with and would only attend meetings if they were arranged through the German public prosecutor in the nearest large town. He explained that these witnesses were German because the police investigation was commenced by the German civil police as it was initially assumed that a German civilian had committed the crime. ... I have not forgotten that Lord Bingham of Cornhill CJ [see paragraph 18 above] said in his judgment that it was clear, with the benefit of hindsight, that the trial could have been conducted in England without due difficulty. But the Director of Public Prosecutions would have had to have taken his decision well before the trial, in view of the arrangements which would have had to have been made for the appellant to be transferred into the hands of the civil authorities in England and for the attendance of the witnesses. In the event, as the respondent has recorded in his written case, no agreement was reached, despite several written requests and reminders, about any of the evidence until the commencement of the trial when the evidence of the witnesses was agreed piecemeal during the opening days. This account of what happened strongly suggests that at the stage when the Director of Public Prosecutions would have had to have taken his decision he would have had to assume that the important evidence of the German witnesses would not be agreed before the trial and that the attendance of the German witnesses would be necessary. ... Conclusion ... The proceedings were conducted within the rules laid down by Parliament. There is no sound basis for thinking that, at the time when a decision about this would have had to have been taken, a prosecution in the English courts within a reasonable time would have been seen to be practicable. The alternatives lay between taking proceedings by way of court-martial in Germany, leaving the matter in the hands of the German public prosecutor or taking no proceedings at all. ...”

II. RELEVANT NON-CONVENTION LAW AND PRACTICE

A. The NATO Status of Forces Agreement 1951

The 1951 agreement, as supplemented by the Supplementary Agreement of 1959 (subsequently amended in 1971, 1981 and 1993) provides in Article VII(1): “1. Subject to the provisions of this Article, the military authorities of the sending State shall have the right to exercise within the receiving State all criminal and disciplinary jurisdiction conferred on them by the law of the sending State over all persons subject to the military law of that State; the authorities of the receiving State shall have jurisdiction over the members of a force or civilian component and their dependents with respect to offences committed within the territory of the receiving State and punishable by the law of that State.

Article VII(3)(a) provides: “3. In cases where the right to exercise jurisdiction is concurrent, the following rules shall apply: (a) The military authorities of the sending State shall have the primary right to exercise jurisdiction over a member of a force or a civilian component in relation to (i) offences solely against property or security of that State, or offences solely against the person or property of another member of the force or civilian component of that state or of a dependent; (ii) offences arising out of an act or omission done in the performance of official duty.”

B. The Army Act 1955

Section 70 of the 1955 Act provides: “(1) Any person subject to military law who commits a civil offence, whether in the United Kingdom or elsewhere, shall be guilty of an offence against this section. ... A person shall not be charged with an offence against this section committed in the United Kingdom if the corresponding civil offence is ... murder.”

Section 209(2) of the Act states: “Subject to the modifications hereinafter specified, Part II of this Act shall at all times apply to a person of any description specified in the Fifth Schedule to this Act who is within the limits of the command of any officer commanding a body of the regular forces outside the United Kingdom, and is not subject to military law ... apart from this section ... as the said Part II applies to persons subject to military law ...”

The Act identifies in its Fifth Schedule the civilians outside the United Kingdom who are subject to Part II of the Act when not on active service. They include, at paragraph 5: “Persons forming part of the family of members of any of Her Majesty’s Naval, Military, or Air Forces and residing with them or about to reside or departing after residing with them.”

The trial of those who have ceased to be subject to military law is expressly provided for by section 131 of the Act: “Subject to the provisions of the next following section, where an offence under this Act triable by Court-Martial has been committed ... by any person while subject to military law, then in relation to that offence he shall be treated, for the purposes of the provisions of the Act relating to ... trial and punishment by Court-Martial ... as continuing subject to military law and notwithstanding his ceasing at any time to be subject thereto.”

Since the Armed Forces Act 1976, where a civilian defendant is to be tried, civilian Crown servants can be detailed as members of the court-martial. In practice, most criminal offences allegedly committed by a civilian dependent would be tried by a Standing Civilian Court (similar to a Magistrates’ Court), with trial by court-martial reserved for the most serious offences.

The law and procedures which applied generally to the applicant’s court-martial were contained in the Army Act 1955, the Rules of Procedure (Army) 1972 and the Queen’s Regulations 1975 (for which, see Findlay v. the United Kingdom, judgment of 25 October 1997, Reports of Judgments and Decisions 1997-I, §§ 32-51). From 1 April 1997 (after the conclusion of the applicant’s court-martial) the Armed Forces Act 1996 came into force which modified certain provisions of the Army Act 1955 (see, generally, Cooper v. the United Kingdom [GC], no. 48843/99, § 104, ECHR 3003-XII; Grieves v. the United Kingdom [GC], no. 57067/00, § 69, ECHR 2003-XII).

C. The Offences against the Person Act 1861

The basic rule of the common law is that the jurisdiction of the criminal courts in the United Kingdom is confined to crimes committed within the territory of each court. An exception is provided by section 9 of the 1861 Act, which gives jurisdiction to British courts in respect of alleged murders and manslaughters committed by British citizens anywhere in the world.