PROCEDURE

The case was referred to the Court by the European Commission of Human Rights (“the Commission“) on 8 December 1995, within the three‑month period laid down by Article 32 para. 1 and Article 47 of the Convention (art. 32-1, art. 47). It originated in an application (no. 22107/93) against the United Kingdom of Great Britain and Northern Ireland lodged with the Commission under Article 25 (art. 25) by Mr Alexander Findlay, a British citizen, on 28 May 1993. The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby the United Kingdom recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 6 para. 1 of the Convention (art. 6-1).

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

The Chamber to be constituted included ex officio Sir John Freeland, the elected judge of British nationality (Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the President of the Court (Rule 21 para. 4 (b)). On 8 February 1996, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr J. De Meyer, Mrs E. Palm, Mr A.N. Loizou, Mr J.M. Morenilla, Mr D.Gotchev, Mr P. Jambrek and Mr K. Jungwiert (Article 43 in fine of the Convention and Rule 21 para. 5) (art. 43).

As President of the Chamber (Rule 21 para. 6), Mr Ryssdal, acting through the Registrar, consulted the Agent of the United Kingdom Government (“the Government“), the applicant’s lawyer and the Delegate of the Commission on the organisation of the proceedings (Rules 37 para. 1 and 38). Pursuant to the order made in consequence, the Registrar received the applicant’s memorial on 28 June 1996 and the Government’s memorial on 4 July 1996. On 29 August 1996 the President decided to admit to the Court file an additional memorial submitted by the applicant which had been received by the Registrar on 7 August 1996 (Rule 37 para. 1).

In accordance with the President’s decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 25 September 1996. The Court had held a preparatory meeting beforehand. There appeared before the Court: (a) for the Government Ms S. Dickson, Foreign and Commonwealth Office, Agent, Mr P. Havers QC, Mr J. Eadie, Barrister-at-Law, Counsel, Mr G. Rogers, Ministry of Defence, Ms J. Murnane, Ministry of Defence, Mr D. Woodhead, Ministry of Defence, Advisers; (b) for the Commission Mr N. Bratza, Delegate, (c) for the applicant Mr J. Mackenzie, Solicitor, Counsel, Mr G. Blades, Solicitor, Mr D. Sullivan, Solicitor, Advisers. The Court heard addresses by Mr Bratza, Mr Mackenzie and Mr Havers.

AS TO THE FACTS

I. Circumstances of the case

The applicant, Alexander Findlay, is a British citizen who was born in 1961 in Kilmarnock, Scotland, and now lives in Windsor, England.

In 1980 he joined the British army and became a member of the Scots Guards. His service was due to terminate in October or November 1992 when he would have received a resettlement grant and, at the age of sixty, an army pension.

In 1982 Mr Findlay took part in the Falklands campaign. During the battle of Mount Tumbledown he witnessed the death and mutilation of several of his friends and was himself injured in the wrist by a mortar-shell blast. According to the medical evidence prepared for his court martial (see paragraphs 11-13 below), as a result of these experiences he suffered from post-traumatic stress disorder (“PTSD“), which manifested itself by flashbacks, nightmares, feelings of anxiety, insomnia and outbursts of anger. This disorder was not diagnosed until after the events of 29 July 1990 (see paragraph 10 below).

In 1987 he sustained an injury during training for service in Northern Ireland when a rope which he was climbing broke and he fell to the ground, severely damaging his back. This injury was extremely painful and affected his ability to perform his duties, which, again according to the medical evidence, led him to suffer from feelings of stress, guilt and depression.

In 1990 the applicant, who had become a lance-sergeant, was sent with his regiment to Northern Ireland. On 29 July 1990, after a heavy drinking session, he held members of his own unit at pistol point and threatened to kill himself and some of his colleagues. He fired two shots, which were not aimed at anyone and hit a television set, and subsequently surrendered the pistol. He was then arrested.

1. The medical evidence

On 31 July 1990 an ex-naval psychiatrist, Dr McKinnon, examined Mr Findlay and found that he was responsible for his actions at the time of the incident. However, a combination of stresses (including his back injury and posting to Northern Ireland) together with his heavy drinking on the day, had led to an “almost inevitable“ event. Dr McKinnon recommended “awarding the minimum appropriate punishment“. Following this report, the decision was taken to charge Mr Findlay with a number of offences arising out of the incident on 29 July (see paragraph 14 below).

In order to establish that he was fit to stand trial, at the request of the army he was examined on two occasions by Dr Blunden, a civilian consultant psychiatrist who had been employed by the Ministry of Defence since 1980. In her report of January 1991, Dr Blunden confirmed that Mr Findlay was fit to plead and knew what he was doing at the time of the incident. However, his chronic back problem (which caused him to be frustrated and depressed at not being fit for duty in his Northern Ireland posting) together with “his previous combat stresses and a very high level of alcohol ... combined to produce this dangerous behaviour“. In her second report, of March 1991, she explained that the applicant had reacted to the stress caused by his back problems in the way he did on 29 July 1990 because of his experiences in the Falklands war. Whilst she did not clearly state that he suffered from PTSD, she confirmed that similar patterns of behaviour frequently occurred at a late stage in those who experienced this disorder. She confirmed that the consumption of alcohol on the relevant day was a result of his condition and not a cause of it.

Mr Findlay was also examined by Dr Reid, at the request of his (Mr Findlay’s) solicitor. Dr Reid diagnosed him as suffering from PTSD as a result of his service in the Falklands.

2. The composition of the court martial

The position of “convening officer“ (see paragraphs 36-41 below) for the applicant’s court martial was assumed by the General Officer Commanding London District, Major General Corbett. He remanded Mr Findlay for trial on eight charges arising out of the incident of 29 July 1990 and decided that he should be tried by general court martial.

By an order dated 31 October 1991, the convening officer convened the general court martial and appointed the military personnel who were to act as prosecuting officer, assistant prosecuting officer and assistant defending officer (to represent Mr Findlay in addition to his solicitor) and the members of the court martial (see paragraph 37 below).

The court martial consisted of a president and four other members: (1) the president, Colonel Godbold, was a member of London District staff (under the command of the convening officer: see paragraph 14 above). He was appointed by name by the latter and was not a permanent president; (2) Lieutenant-Colonel Swallow was a permanent president of courts martial, sitting in the capacity of an ordinary member. He had his office in the London District Headquarters. He was appointed by name by the convening officer; (3) Captain Tubbs was from the Coldstream Guards, a unit stationed in London District. His reporting chain was to his officer commanding, his commanding officer and the Brigade Commander, after which his report could, in exceptional circumstances, go to the convening officer; he was a member of a footguard unit and the convening officer, as General Officer Commanding, was responsible for all footguard units. He was appointed to the court martial by his commanding officer; (4) Major Bolitho was from the Grenadier Guards, also a footguard unit stationed in London District. The convening officer was his second superior reporting officer. He was appointed to the court martial by his commanding officer; (5) Captain O’Connor was from the Postal and Courier Department, Royal Engineers (Women’s Royal Army Corps), which is under the direct command of the Ministry of Defence and is administered by the London District. She was appointed by her commanding officer. In summary, all of the members of the court martial were subordinate in rank to the convening officer and served in units stationed within London District. None of them had legal training.

The assistant prosecuting and defending officers were both officers from the Second Scots Guards stationed in the London District and had the same reporting chain as Captain Tubbs (see paragraph 16 (3) above).

The judge advocate for the general court martial was appointed by the Judge Advocate General (see paragraphs 42-45 below). He was a barrister and assistant judge advocate with the Judge Advocate General’s Office.

3. The court martial hearing

On 11 November 1991, Mr Findlay appeared before the general court martial, at Regent’s Park Barracks in London. He was represented by a solicitor. He pleaded guilty to three charges of common assault (a civilian offence), two charges of conduct to the prejudice of good order and military discipline (a military offence) and two charges of threatening to kill (a civilian offence).

On 2 November 1991, his solicitor had made a written request to the prosecuting authorities to ensure the appearance of Dr Blunden at the court martial and on 5 November 1991 the prosecuting officer had issued a witness summons requiring her attendance. However, the defence was informed on the morning of the hearing that Dr Blunden would not be attending. Mr Findlay claims that her absence persuaded him to plead guilty to the above charges. However, his solicitor did not request an adjournment or object to the hearing proceeding.

The defence put before the court martial the medical reports referred to above (paragraphs 11-13) and called Dr Reid to give evidence. The latter confirmed his view that the applicant suffered from PTSD, that this had been the principal cause of his behaviour, that he had not been responsible for his actions and that he was in need of counselling. During cross‑examination, Dr Reid stated that this was the first time he had dealt with battle-related PTSD. The prosecution did not call any medical evidence in rebuttal or adopt any of the evidence prepared by the army-instructed psychiatrists, Drs McKinnon and Blunden (see paragraphs 11-13 above).

In the course of his speech in mitigation, Mr Findlay’s solicitor urged the court martial that, in view of the fact that his client had been suffering from PTSD at the time of the incident and was extremely unlikely to reoffend, he should be allowed to complete the few remaining months of his service and leave the army with his pension intact and a minimal endorsement on his record.

Having heard the evidence and speeches, the court martial retired to consider their decision on sentence, accompanied by the judge advocate. On their return they sentenced the applicant to two years’ imprisonment, reduction to the rank of guardsman and dismissal from the army (which caused him to suffer a reduction in his pension entitlement). No reasons were given for the sentence (see paragraph 46 below).

4. The confirmation of sentence and review process

Under the Army Act 1955, the decision of the court martial had no effect until it was confirmed by the “confirming officer“ (see paragraph 48 below). In Mr Findlay’s case, as was usual practice, the confirming officer was the same person as the convening officer. Mr Findlay petitioned him for a reduction in sentence. Having received advice from the Judge Advocate General’s Office, the confirming officer informed the applicant on 16 December 1991 that the sentence had been upheld.

The applicant, who had been under close arrest since the morning before the court martial hearing, was removed on 18 November 1991 to a military prison and thereafter to a civilian prison on 21 December 1991.

He appealed by way of petition to the first of the “reviewing authorities“ (see paragraph 49 below), the Deputy Director General of Personal Services, as delegate of the Army Board, a non-legally qualified officer who obtained advice from the Judge Advocate General’s Office. By a letter dated 22 January 1992, Mr Findlay was informed that this petition had been rejected.

He then petitioned the second of the reviewing authorities, a member of the Defence Council who also was not legally qualified and who also received advice from the Judge Advocate General’s Office. This petition was rejected on 10 March 1992.

The advice given by the Judge Advocate General’s Office at each of these three stages of review was not disclosed to the applicant, nor was he given reasons for the decisions confirming his sentence and rejecting his petitions.

On 10 March 1992, the applicant applied to the Divisional Court for leave to challenge by judicial review the validity of the findings of the court martial. He claimed that the sentence imposed was excessive, the proceedings were contrary to the rules of natural justice and that the judge advocate had been hostile to him on two occasions during the hearing. On 14 December 1992 the Divisional Court refused leave on the basis that the court martial had been conducted fully in accordance with the Army Act 1955 and there was no evidence of improper conduct or hostility on the part of the judge advocate (R. v. General Court Martial (Regent’s Park Barracks), ex parte Alexander Findlay, CO/1092/92, unreported).

5. Civil proceedings

Mr Findlay commenced a civil claim in negligence against the military authorities, claiming damages in respect of his back injury and PTSD. In a report dated 16 January 1994 prepared for these purposes, Dr Blunden confirmed her previous opinion (see paragraph 12 above) and clearly diagnosed PTSD.

In March 1994 the civil action was settled by the Secretary of State for Defence, who paid the applicant £100,000 and legal costs, without any admission of liability. The settlement did not differentiate between the claims in respect of PTSD and the back injury.