PROCEDURE

The case originated in an application (no. 55434/00) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a British national, Mr John Boyle (“the applicant”), on 25 February 2000.

The applicant was represented by Mr J. Mackenzie, a lawyer practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr J. Grainger of the Foreign and Commonwealth Office.

The applicant alleged that his detention on remand pending his trial by court martial was in breach of Article 5 § 3 of the Convention.

By a decision of 25 October 2005, the Court declared the application admissible.

The applicant and the Government each filed further written observations (Rule 59 § 1). The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine), the parties replied in writing to each other's observations.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1974 and lives in London.

The applicant joined the British Army in 1990. In 1999 he was serving as a gunner with the 12th Regiment of the Royal Artillery and was stationed in Germany.

On 1 November 1999 a woman alleged that she had been raped and on 2 November the applicant was arrested, along with two other soldiers, by the service police. The service police interviewed the applicant on 4 November 1999 and it appears that he was assisted by a lieutenant from Army Legal Services. On that date he also signed a certificate acknowledging that he had been informed of his right to have the assistance of an “accused advisor” during any summary hearing before his commanding officer (“CO”).

On 5 November 1999 he was charged by his CO, pursuant to section 70 of the Army Act 1955 (“the 1955 Act”), with indecent assault contrary to section 14(1) of the Sexual Offences Act 1956. It appears that his two co-accused were charged with rape. The charge was read; the CO said that the matter was to be referred to a higher authority given the seriousness of the charge; the applicant was asked if he had anything to say and he replied that he had not. He was given a four-page document immediately before that hearing, which document was taken back from him immediately thereafter.

A certificate dated 6 November 1999 and signed by the applicant has been submitted: it confirms that the applicant received the pamphlet “The Rights of a Soldier Charged with an Offence under the Army Act 1955” and that he had had the opportunity to be advised by an officer of his choice. On the same date, the CO referred the case to the Higher Authority and remanded the applicant in close arrest. A short note by the CO (“referred to Higher Authority”) constitutes the sole record before the Court of that hearing.

On 16 November 1999 the applicant was transferred to the Military Correctional Training Centre (“the MCTC”) in the United Kingdom.

Twelve “8-day delay” reports were completed during the applicant's pre-trial detention. The first, dated 12 November 1999, was signed by his CO in the 12th Regiment of the Royal Artillery and the reasons for detention were recorded as being “undesirable that he should remain at [large]”. All subsequent reports (dated 19 November, 25 November, 3 December, 13 December, 20 December and 29 December 1999 and dated 4 January, 12 January, 20 January, 28 January and 7 February 2000) were signed by the CO of the MCTC and recorded two reasons for his continued detention: it was considered that he was likely to suborn witnesses and that, given the “nature and prevalence of the alleged offence under investigation” it was “undesirable in the interests of discipline that he should be at large or consort with his comrades.” The final report dated 7 February 2000 recorded for the first time an additional charge against the applicant pursuant to section 70 of the 1955 Act: rape contrary to section 1(1) of the Sexual Offences Act 1956.

Six “16-day arrest” forms were also completed (pursuant to Rule 22 of the Investigation and Summary Dealing (Army) Regulations 1997) on 19 November, 3 December and 20 December 1999 and on 4 January, 20 January and 7 February 2000. The CO of the MCTC signed these forms and recorded that the applicant had been brought before him to consider any representations the applicant may have had concerning his arrest status and that he had been informed of his right to apply to the military authorities for his release. No representations from the applicant were recorded as having been made. No reasons were noted as to why the applicant had been detained except in the last form (dated 7 February 2000) which recorded the same reasons as in the above-noted 8-day reports namely: “He is likely to suborn witnesses. Having regard to the nature or prevalence of the offence under investigation it is undesirable in the interests of discipline that he should be at large or consort with his comrades.”

A Special Report form dated 4 January 2000 (relating to detention beyond the seventy-second day which would fall on 13 January 2000) also recorded that the applicant was likely to suborn witnesses and that it was undesirable in the interests of discipline that he be allowed to consort with his comrades due to the seriousness of the alleged offence. A Special Report, dated 10 January 2000 and completed by a lieutenant colonel (chief of staff) of Headquarters Land Command, recorded that approval had been given for the continued detention of the applicant on the grounds that he was a habitual absentee and was likely to absent himself again if released. Headquarters was to be informed if he had not been brought to trial by 14 February 2000.

On 12 January 2000 a solicitor was instructed by the applicant's parents. On 13 January 2000 that solicitor took instructions from the applicant. The latter alleged that the accused advisor had taken no part in the review procedures.

On 14 January 2000 his solicitor requested the military authorities to provide copies of the relevant documentation concerning the applicant's detention. By letter dated 11 February 2000 the acting brigade commander of the 16th Air Assault Brigade sent the above-described reports to the applicant's solicitor.

On 1 February 2000 his solicitor sought a review of the applicant's detention by the general officer commanding 4th Division. He was initially orally informed that the review would take place on 15 February 2000 but was then informed on 16 February 2000 that the review had not taken place.

On 18 February 2000 the applicant's representative applied for a writ of habeas corpus to the High Court. A return date was fixed for 3 March 2000. The application was served on the CO of the MCTC on 19 February 2000.

On 22 February 2000 the CO of the MCTC released the applicant from close arrest and he was posted to the 47th Regiment Royal Artillery.

On 2 March 2000, the same CO swore an affidavit setting out the reasons for the applicant's release. He stated: 'I decided, on balance, following a thorough review of the Applicant's case, that the interests of justice could be met by releasing the Applicant into open arrest even though the allegation against him was that he had committed rape and indecent assault...and despite the fact that there was evidence that he, with others, concocted a story and interfered with a witness. I decided that the Applicant should be posted with immediate effect to a different unit in a different country namely the UK, and issued with specific orders preventing him from being able to influence the witnesses.'

The applicant and his two co-defendants were tried by Army General Court Martial on a joint charge of rape between 14 May and 25 May 2001. All three defendants were acquitted.