Baines v Army Prosecuting Authority & Anor [2005] EWHC 1399 (Admin)

Case No CO/6067/2004[2005] EWHC 1399 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday, 12 July 2005
Before
LORD JUSTICE ROSEMR JUSTICE FIELD
Between
Air Trooper Paul David BainesAppellantArmy Prosecuting AuthorityRespondentThe Secretary of State for DefenceIntervener
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Fiona Edington (instructed by Mr. Lewis Cherry) for AppellantPhilip Havers QC (instructed by the Army Prosecuting Authority and the Treasury Solicitor) for Respondent and the Intervener
JudgmentMr. Justice Field :
[1]This is the judgement of the court.[2]On 5th July 2004 the appellant, Air Trooper Paul David Baines of 5 Regiment Army Air Corps, appeared before his commanding officer, Lieutenant Colonel Budd, charged with battery contrary to s. 39 of the Criminal Justice Act 1988.[3]The hearing conducted by Lieutenant Colonel Budd was what is called a “summary dealing” in the parlance of military law. The case against Air Trooper Baines was being dealt with by the commanding officer (“the CO”) because it had been remitted to him to deal with it summarily by the Army Prosecuting Authority (“the APA”). The range of punishments that can be imposed by a commanding officer on a summary dealing is set out in s. 76C of the Army Act 1955 (“the 1955 Act”) and regulations 10, 11 and 12 of the Custody and Summary Dealing (Army) Regulations 2000 (“the Regulations”). (All further references to statutory provisions or regulations are references to provisions in the 1955 Act or the Regulations unless the contrary is stated). Trooper Baines was an acting Lance Corporal. This meant that the punishments that were available to Lieutenant Colonel Budd were a fine (s.76C(2)(b)); a severe reprimand or a reprimand (s.76C(2)(c)); stoppages, if the offence had occasioned expense, loss or damage (s. 76C(2)); and, if no other punishment or no other punishment save for stoppages were imposed, an order that the appellant be reduced to the ranks (s. 76C(11)).[4]As was his right, the appellant was offered by his CO the choice of being tried by a District Court-Martial (s. 76AA(1) of the Act). The appellant declined this option and pleaded guilty. The CO found the charge proved. He ordered that the appellant be reduced to the ranks.[5]The events giving rise to the charge of battery were these. On 10th December 2003 at approximately 23.55 hours, the appellant, who was drunk, went into the room of Air Trooper Elliot who was in bed asleep. He woke the Air Trooper up and there was a short conversation. Air Trooper Elliot then closed his eyes to go back to sleep and was attacked by the appellant who said, “You should start respecting authority you little cunt.” The appellant punched Elliot to the head and arms for about two minutes in the course of which he said “If you tell anyone, I will give you another.”[6]After the attack, Air Trooper Elliot’s arm swelled up. He also had red marks on his forehead, a swollen upper lip, and marks to the arms and grazes. The assault was investigated by the service police. It was thought at first that Air Trooper Elliot’s arm had been broken. The CO referred the case to “higher authority” under s. 76 (5) (b) who in turn referred it under s. 76A (1) to the the APA. The APA proceeded to charge the appellant with an assault occasioning actual bodily harm which, by reason of regulation 9, was an offence which could not be dealt with summarily by the CO but had to be tried by a court martial.[7]Air Trooper Baines, as he was entitled to, sought the advice of a solicitor, Mr. Lewis Cherry, who had often acted for service personnel facing criminal charges. Since the charge was to be tried by court-martial, the appellant was entitled to legal aid.[8]Air Trooper Baines indicated to the APA that he would plead guilty but when it transpired that Air Trooper Elliot’s arm had not been broken, Mr. Cherry requested the APA to drop that charge and substitute for it a charge of battery. Mr. Cherry then wrote to Major Clifton of the APA in these terms: R v L/Cpl Baines 1. I understand following my discussion with Capt Gould that this will be reduced to Battery following confirmation of the medical position. 2. The case had previously been thought to be ABH and therefore the CO had referred the matter as he is prohibited from dealing with ABH charges by CSD (A) Regs r. 9 3. As the CO can deal with Battery; and normally in these circumstances, would do ordinarily I therefore invite you to consider returning this to the CO if he wishes to deal with it. You have the power under s. 83B(8) (c) of AA 1955. 4. I anticipate this JNCO will be reduced to Pte in any event; however it is somewhat different to be reduced by DCM [District Court-Martial] on your conduct sheet. I feel that had this been a battery originally we would not have seen it! The JNCO has, as you are aware, written to apologise and shown remorse and paid compensation to the injured soldier. The CO has ample powers for a guilty plea with this mitigation. 5. We can presumably get a more relevant case onto the tight assize listing.

R v L/Cpl Baines

[9]It is clear from the evidence of Colonel Miskelly that, as the case had already been listed for trial, had it not been for the approach of Mr. Cherry, the APA would have allowed the matter to go before a District Court-Martial on the charge of battery. Since the punishments available to a court-martial for the offence of battery include the power to award imprisonment and detention for a term not exceeding two years, as well as reduction to the ranks (s. 71 (1)(b), (e) and (g) of the Act), Mr. Cherry’s intervention secured a very real advantage to the appellant.[10]The appellant was free to take legal advice before the summary dealing but was not entitled to legal aid and he had no entitlement to legal advice or legal representation at the hearing. What he was entitled to was an “Accused’s Adviser” chosen by him from the officers, warrant officers or senior NCOs serving with him.[11]When passing sentence, the CO said that the attack was unprovoked, senseless and brutal. It was the behaviour of a bully and the consumption of alcohol could be no excuse. The appellant had failed to set an example. No reasonable person would think that he should continue to be placed in charge of young soldiers until he had proved that he was trustworthy. The appellant had paid the victim £500 in compensation; a fine over and above that compensation was not appropriate. Reduction to the ranks was both necessary and proportionate.[12]The day following the summary dealing, the appellant lodged an appeal to the Army Summary Appeal Court (“the SAC”) sitting at Aldergrove Military Court Centre. The appeal was against both the finding and the sentence. It was heard on 4 August 2004. The SAC was presided over by Mr. Peter Gribble sitting as judge advocate. The appellant was represented by Mr. Cherry. The hearing began with an application by the appellant for a ruling that the summary dealing had been in breach of the appellant’s rights under Art. 6 ECHR on the grounds that the commanding officer was not an independent tribunal; the appellant’s choice to be tried by the commanding officer was not a free and unambiguous choice; and the appellant had not had the right to legal advice and representation at the hearing. Strong reliance was placed on the decision of the European Court of Human Rights in Thompson v UK (2005) 40 EHRR 11.[13]The learned judge advocate ruled that the summary dealing process provided for under the 1955 Act was not in breach of Art 6 ECHR. He held that the amendments to the 1955 Act passed since Thompson was decided, in particular the establishment of the SAC, were such that summary dealing was now in conformity with Art 6 both in respect of the independence of the tribunal and in respect of the right to legal representation.[14]The SAC then went on to hear and determine the appeal against sentence. The facts were opened by the APA and Mr. Cherry mitigated on the appellant’s behalf. The SAC found that the sentence imposed was appropriate and correct. The appellant had shown that he was not at that stage capable of accepting responsibility and in those circumstances the CO had had no option but to reduce him to the ranks.[15]The appellant’s appeal to this court is by way of case stated under s. 83ZH (2) of the 1955Act. He does not challenge the sentence that the SAC upheld, nor could he, for even if he had a right to appeal the sentence, such an appeal would be hopeless: on any view the sentence imposed by the CO was entirely appropriate. Instead, what the appellant challenges is the judge advocate’s ruling that the summary dealing was Art 6 compliant.[16]The question for the opinion of the court posed in the case stated is:
“Whether, having regard, inter alia, to his right of election for trial by court martial, his right of appeal to the Summary Appeal Court, his subsequent appeal to the Summary Appeal Court and the decision in Thompson, the Applicant’s trial by way of summary dealing before his Commanding Officer was in breach of Articles 6(1) and 6 (3) of the European Convention on Human Rights.”
[17]The relevant parts of Articles 6 (1) and (3) provide: (1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. (3) Everyone charged with a criminal offence has the following minimum rights: (a) …. (b) ….. (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.[18]In the ordinary way, on an appeal by case stated this court looks only at the evidence that was available to the court below. This, however, is no ordinary case since the legality of the whole of the summary dealing procedure provided for in the 1955 Act is challenged. The APA also contends that if there was a breach of the appellant’s Art 6 rights, he waived the breach by choosing, on the advice of his solicitor, to be dealt with by the CO rather than by a court-martial. In these circumstances we permitted (without objection by the appellant) the APA and the intervener, the Secretary of State for Defence, to rely on witness statements provided by Air Chief Marshall Sir Anthony Bagnall, the Vice Chief of the Defence Staff; Mr. Edward Latham, a legal adviser in the Directorate General Legal Services in the Ministry of Defence; Lieutenant Colonel Frazer Grenville Budd, the appellant’s CO; Colonel Cecilia Miskelly, Colonel Prosecutions (United Kingdom) at the APA; and Colonel (Retired) Willliam Ibbetson of the Directorate of Personal Services (Army).[19]It is not in dispute that summary dealings engage Art 6 to the extent that they involve the determination of a criminal charge. Prior to the reforms enacted by the Armed Forces Act 1996 (“the 1996 Act”) and the Armed Forces Discipline Act 2000 (“the 2000 Act”), the European Court of Human Rights held in a number of cases that UK courts-martial were not independent and impartial tribunals and were therefore not compliant with Art 6 (1). The court reached this conclusion having regard in particular to the role played by the “convening officer” and to the fact that members of the court were subordinate in rank to him and directly under his command; see Findlay v UK (1997) 24 EHRR 221; Coyne v UK (1997) App 25942/94; Hood v UK (1999) 29 EHRR 365; and Cable and others v UK (1999) App 24436/94.[20]Following the amendments made to the courts-martial provisions in the 1955 Act, the Air Force Act 1955 and the Naval Discipline Act 1957 by the 1996 Act, the House of Lords held in R v Spear and another; R v Boyd, R v Saunby and others [2002] UKHL 31; [2003] AC 734 that trials by army and air-force courts-martial were compliant with Art 6(1). The House declined to follow the European Court’s decision in Morris v UK (2002) 34 EHRR 1253 and concluded that given the role of the judge advocate, the oaths taken by the court’s members and the instructions contained in briefing notes sent to the members, courts-martial were independent and impartial notwithstanding that the non-judicial members were serving officers and had no legal training. The House also held that the independence and impartiality of the process was not undermined by the role of the reviewing authority.[21]In Cooper v UK (2004) 39 EHRR 8 the Grand Chamber of the European Court adopted the House of Lord’s approach in respect of air-force courts-martial but in Grievesv UK (2004) 39 EHRR 2 the court held that even after the 1996 Act reforms, a navy court-martial was not independent and impartial because of the lack of a civilian in the pivotal role of Judge Advocate and because the navy briefing notes for the court-martial’s non-judicial members were not clear and detailed enough to be an adequate safeguard of independence.[22]There has only been one case on the compatibility of summary dealings with Art 6 and that is Thompson,a decision which is at the heart of the argument advanced by the appellant’s counsel, Miss Edington. Here, the applicant appeared before his CO charged with being absent without leave and was remanded in close arrest. On 13 February 1997 the applicant appeared before his CO and pleaded guilty to being absent without leave. He was sentenced to 28 days’ military detention. The applicant contended, inter alia, that his summary trial by his CO did not satisfy the Art 6 (1) requirements of independence and impartiality and also breached Art 6 (3) because he had had no right to legal representation at the hearing. The respondent submitted that the summary dealing was Art 6 compliant and even if it were not, the applicant had waived the breach.[23]The summary dealings in this case were all governed by the old provisions of the Army Act 1955. The amendments made by the 1996 Act did not come into effect until 1 April 1997. The European Court held that the summary dealing at which the applicant pleaded guilty and was sentenced to 28 days’ detention was not compatible with Art 6(1) or Art 6 (3). Paragraphs 46 and 47 of the judgment read: Turning therefore to the merits of his complaints under Article 6 (1), the Court considers it clear that the summary proceedings conducted by the Commanding Officer were not compatible with Article 6 (1) of the Convention. Most fundamentally, the Commanding Officer was central to the prosecution of the charge against the applicant (the Hood case described at paragraph 33 above) and, at the same time, he was the sole judge in the case. In such circumstances, the court finds that the summary trial presented even clearer structural independence and impartiality problems than those established in the above – cited Findlay case. The proceedings before the Commanding Officer were, consequently, unfair (Grieves v. the United Kingdom [GC] (2004) 39 EHRR 2 at [91]. Such defects could not be corrected by a subsequent review other than a first instance hearing which met the requirements of Article 6 (1) of the convention (the above-cited Findlay case, para 79). There has, therefore, been a breach of the independence, impartiality and, fairness requirements of Article 6 (1) of the Convention. Moreover, the court considers the additional complaint under Article 6 (3) (c) of the Convention about the exclusion of legal representation from summary trials should be considered separately from the structural breaches of Article 6 (1) of the Convention established above. In this respect, it is recalled that the convention requires that a person charged with a criminal offence (see paragraphs 32 and 42 above) who does not wish to defend himself in person must be able to have recourse to legal assistance of his own choosing (Campbell and Fell v. the United Kingdom (1985) 7 HHRR 165 at [99] and Pakelli v Germany (1984) 6 EHRR 1 at [31]. The Court finds that the exclusion of legal representation from the applicant’s summary trial constituted a violation of Article 6 (3) (c) of the Convention (Benham v the United Kingdom (19660 22 EHRR 293 at [54] and Ezeh and Connors v the United Kingdom (2004) [GC] 39 EHRR 1 at [131]-[134].[24]In paragraph 73 of the judgement in Findlay the European Court said: The Court recalls that in order to establish whether a tribunal can be considered as “independent”, regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressure and the question whether the body presents an appearance of independence. As to the question of “impartiality”, there are two aspects to this requirement. First, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect.[25]It is therefore necessary to assess the role played by the CO in the summary determination of military offences, the procedures that apply to such hearings and the role and constitution of the Summary Appeal Court. The relevant legislation and rules are found in ss. 76, 76A. 76AA, 76B, 76C, 83ZA to 83ZL and 85A of the 1955 Act; s. 20 of the 2000 Act; the Regulations; the Summary Appeal Court (Army) Rules 2000 (“the SAC rules”); the Summary Appeal Courts (Warrant Officers) Order 2004 (“the SAC (WO) Order”; the Administration of Oaths (Summary Appeal Court) (Army) Order 2000 (“the SAC (Oaths) Order”) ; and the Queen’s Regulations for the Army (“the QRs”).[26]The aforementioned provisions, together with the other provisions in Part II of the Army Act 1955 concerned with the discipline and trial and punishment of military offences, apply to persons subject to military law as defined in s. 205. The offences that are investigated and tried under Part II are offences against any provision of that Part of the Act, including s. 70, that provides that a person who commits a civil offence shall be guilty of an offence against that section.[27]An allegation that a person subject to military law has committed an offence against a provision of Part II has to be reported in the form of a charge to that person’s commanding officer (s. 76(1)). Once a charge has been reported to him the CO has to investigate it (s.76(2)) and by regulation 21(1) he must do this by causing such enquiries to be made as appear to him to be necessary and by considering any witness statements or other material relevant to the charge. The CO may amend the charge or substitute another charge for it (s.76(3)), and if he concludes that the matters to which the charge relates could be and in the interests of the better administration of justice should be taken against the accused otherwise than under the Act, he may stay further proceedings with respect to that charge (s.76 (4)). After investigating the charge the CO may dismiss it; or refer it to higher authority; or deal summarily with it, although he may not deal summarily with it if the accused is an officer or warrant officer (s.76(5)) and (6)), or if it does not relate to an offence specified in regulation 9.[28]In paragraphs 16 and 17 of his witness statement, the Vice Chief of the Defence Staff, Sir Anthony Bagnall, says (and we accept): Section 76 of the Army Act 1955 refers to investigation by COs, but this may in my view give a false impression of their actual role. What section 76 actually refers to is the investigation of an existing charge. Where a soldier has been charged under the Army Act with a criminal offence, it is the Service police (or civilian police) who will have investigated the matter. Service police investigations are conducted in accordance with Part 5 of the Police and Criminal Evidence Act 1984, which is applied, with modifications, to Service police investigations by an order under section 113 of that Act (The Police and Criminal Evidence Act 1984 (Application To The Armed Forces) Order 1997 (SI 1997/15)).The accused is charged on the basis of this investigation. Accordingly the CO has no interest in the eventual outcome derived from any role in investigating the original allegation or events.The CO’s “investigation” referred to in theArmy Act may involve his causing further inquiries to be made by the Service police and consideration by him of witness statements and other relevant materials. The CO then has to decide whether to dismiss the case without a hearing, to deal with the offence (if he has jurisdiction), or to refer it to higher authority with a view to court-martial….[29]It follows that the “investigation” by the CO referred to in s. 76 means consideration of the relevant material arising from the investigation carried out by the service police so as to enable the CO to decide whether to dismiss the case without a hearing, whether to deal with it if he has jurisdiction to do so, or whether to refer it to higher authority with a view to trial by court-martial.[30]Under regulation 4, if the CO decides that the charge should be dealt with summarily, as soon as practicable and in any event not less than 24 hours before the summary hearing the accused has to be provided with a range of documentation including a copy of the charge sheet, a copy of the evidence which it is proposed to be used to prove the charge, a copy of any unused material, and a copy of a pamphlet entitled “The Rights of a Soldier Arrested for or Charged with an offence under the Army Act 1955” which explains the different procedures and options including the option to elect for trial by court-martial. The accused is also given a form entitled “Information on Election for Court Martial” (AF A6201).[31]The procedure that must be followed at a summary dealing is laid down in regulation 28. This provides for a procedure closely similar to that which operates in a magistrates’ court. It also stipulates that the CO must ensure that the accused has had the opportunity to read the charge report and the documentation provided under regulation 24 and, pursuant to s.76AA(1), provide the accused with the opportunity to elect for trial by court-martial.[32]If the accused elects for a trial by court-martial, the court-martial that tries him may not award any punishment that could not have been awarded by the CO who would have dealt with the charge if the election had not been made (s. 85A). Further, the APA cannot prefer a more serious charge or otherwise prefer additional charges unless the accused consents or the charges are sent back to the CO when the whole process starts afresh with the accused having the right to elect trial by court martial if the CO decides on a summary dealing (ss. 83B (9A) and 83BB).[33]If the charge is heard summarily and is found proved the CO has to notify the accused promptly of a number of matters including the finding of guilt; the punishment awarded and the reasons therefor; the accused’s right to appeal to the Summary Appeal Court; and his entitlement both to be legally represented before that court and to apply for legal aid (regulation 28(4)).[34]The powers of punishment that may be awarded on a summary dealing are set out in s. 76C. The CO has no power to award imprisonment but if the accused is a soldier he can be sentenced to a period of detention of up to 28 days or to such longer period up to 60 days as higher authority may permit under regulation 30. Permission to award extended detention has to be sought before the summary dealing and the accused has to be informed of its grant before he is offered the right to elect trial by court-martial. In addition to detention the CO can impose a fine (subject to certain financial limits); a reprimand or a severe reprimand (if the accused is a non-commissioned officer); stoppages, if the offence has occasioned any expense, loss or damage; any minor punishment for the time being authorised by the Defence Council; and, depending on the rank of the accused, an order that the accused revert to permanent rank or a lower acting rank or be reduced to the ranks.[35]The accused is not entitled to legal aid for summary dealings except for pre-trial custody hearings, but, as the appellant concedes, he is able to obtain legal advice in respect of such dealings. In this connection it was the unchallenged evidence of Sir Anthony Bagnall that legal advice was available to soldiers facing summary dealings. In garrison towns in Great Britain there are local solicitors who advertise regularly in Service publications. The firms are well-known among soldiers and regularly instructed by them. In Northern Ireland the Army maintains a list of firms with security clearance which is available to all units. Outside the United Kingdom the Army has arranged for Service personnel to obtain legal advice from RAF lawyers. This arrangement operates wherever outside the UK a summary dealing may be held.[36]The accused is not, however, entitled to be legally represented at the summary hearing. Instead he is entitled to be assisted by an “Accused’s Adviser”. The role of an Accused’s Adviser is described in these terms in the pamphlet “Rights of a Soldier”: When appearing at any summary hearing you are entitled to be assisted by an Accused’s Adviser unless you refuse such assistance in writing. Your Accused’s Adviser will normally be an officer, WO or SNCO known to, and chosen by, you though certain persons e.g. witnesses, the Adjt, are excluded. If the person you want is unavailable unwilling or excluded, someone else will be appointed for you. The Accused’s Adviser is not a defending officer. His function is to advise you before and at the hearing on military law and procedure as appropriate. He will help you to decide whether to give evidence or call witnesses, or elect trial by court martial. Your adviser can make a statement about your background or in mitigation of punishment. Your adviser will be present throughout the hearing and you may consult him at any time during the hearing. His role is limited in certain ways, e.g. he cannot talk for you when you are asked if you want to say anything about the case. Only you can do this, although your adviser may assist you to prepare questions for witnesses before and during the hearing.[37]The duties of the Accused’s Adviser are set out in Army General and Administrative Instruction (AGAI) 62. This document states that it is the Accused’s Adviser’s duty to provide advice on summary procedures including the right to elect for court-martial (paragraph 1) and stipulates, inter alia, that he is to ensure the accused understands the implications of whether to:(a) elect for trial by court-martial;(b) call and question witnesses; and(c) seek leave to appeal to the SAC (paragraph 5).[38]By s. 83ZE, an accused who is found guilty at a summary hearing is entitled as of right to appeal against the finding and the sentence to the SAC by way of an appeal brought within fourteen days from the date punishment is awarded. The SAC is empowered to give leave for an appeal lodged outside the fourteen day period (s. 83ZE (3)). The respondent in appeal proceedings is the APA (s.83ZE (4)). Appeals against findings and appeals against sentence are by way of rehearing and are conducted in accordance with the law of England and Wales (s. 83ZF (1) and (2)). The SAC therefore functions just like the Crown Court on an appeal from the Magistrates Court. If the appeal is against the finding, there is a fresh trial, with the APA having to call evidence and prove the charge to the criminal standard. In the event of a guilty finding, the SAC then imposes such sentence as it thinks is appropriate. If the appeal is against sentence, the SAC does not simply review the sentence awarded below but having heard the facts opened by the APA and mitigation on behalf the appellant, decides for itself what sentence is appropriate.[39]A person who appeals to the SAC has a right to be legally represented and may appoint a legal adviser to act for him in connection with the conduct of his appeal (rule 6 (1) of the SAC rules). Further, by rule 6 (2), an appellant’s commanding officer must secure that he is afforded a reasonable opportunity of communicating with his legal adviser for the purpose of preparing his appeal.[40]For the purposes of hearing an appeal the SAC consists of a judge advocate, an officer and a third person who is an officer or a warrant officer. The judge advocate is appointed by the Judge Advocate General and must have been legally qualified for at least five years (s. 84B (1)). Rulings and directions on questions of law (including questions of procedure and practice) have to be given by the judge advocate and his directions are binding on the court (s. 84B (3) and (4)). Only civilians are appointed to be judge advocates. An officer is qualified for membership of the SAC if he has held a commission in any of HM forces for at least two years and if he is a naval or air-force officer if the court administrator considers that the necessary number of military officers qualified to sit is not available to sit on the hearing (s. 83ZC(1) and rule 23) of the SAC rules). He must not be the court administration officer, or be legally qualified, or have been in the preceding five years a provost officer (s.83ZC (3). Rule 24 of the SAC rules also provides that an officer is ineligible to sit if:(a) he has been the appellant’s commanding officer at any time between the date of the offence the subject of the appeal and the date the appeal is heard;(b) he acted as the appropriate superior authority in relation to any charge to which the appeal relates (“relevant charge”);(c) he was the higher authority to whom any relevant charge was referred;(d) as higher authority he approved or otherwise consented to any punishment awarded in respect of any relevant charge;(e) he has at any time investigated the subject matter of any relevant charge; and f) he has at any time held or acted as one of the persons holding an inquiry into matters relating to any relevant charge.[41]By paragraph 3 of the Summary Appeal Courts (Warrant Officers) Order 2004 warrant officers are declared to be qualified to be members of the SAC save to the extent that that rule otherwise provides. The circumstances in which a warrant officer is not qualified are set out in paragraph 3 (2) and (4) and include where:(a) he serves under the command of the court administrator;(b) he serves under the command of a prosecuting authority;(c) he is qualified to be a solicitor, barrister or advocate;(d) he has at any time during the preceding five years been a service policeman;(e) he is not of higher rank than the appellant;(f) he has at any time investigated the subject matter or held an inquiry into matters relating to any relevant charge; and(g) he serves under the command of (i) the officer who dealt with the summary dealing; (ii) an officer to whom any relevant charge was referred under the 1955 Act; or (iii) an officer whose consent or approval must be sought for the award of any punishment in respect of any relevant charge.[42]Pursuant to s.83ZD and paras 4 and 5 of the SAC (Oaths) Order, every member of the SAC before first sitting as a member has to take an oath; the judge advocate swears that he will do right to all manner of people after the laws and usages of HM’s realm without fear or favour; the other members of the court swear that they will duly administer the law without partiality or favour or affection and will not on any account disclose the vote or opinion of any member of the court unless required to do so by law.[43]Regulation 6.078E of the QRs emphasises that members of the Summary Appeal Court are not to be subjected to external influence or pressure and that attempting to influence or interfere with members of the court or witnesses is an offence. Regulation 6.078E also requires members of the SAC to be sent guidance as to the conduct and procedures of the court at least two weeks before the start of the hearing. The guidance that is sent consists of a substantial booklet entitled “Military Courts Guide” and a set of briefing notes both of which explain the function of the court and the nature of its proceedings in respect of an appeal against the finding and against sentence, making it clear that in either event, the appeal is in the nature of a rehearing. It is also to be noted that regulation 6.078E of the QRs prohibits reporting on the performance of a person as a member of the Summary Appeal Court.[44]The SAC has a court administration officer appointed by the Defence Council who has an equivalent function to the court administration officer for a court-martial. Currently the position of court administration officer for the SAC and for courts-martial is one and the same person, and a civil servant.[45]Mr. Havers QC who appeared for the respondent and the intervener concedes that, viewed in isolation, summary dealings are not compliant with Art 6. The CO still has a role in the prosecution of the charge and the accused has no entitlement to legal representation at the hearing. Mr. Havers contends, however, that regard should be had to the wider picture, including in particular the right conferred by s. 76AA to elect trial by court-martial (which he submits is a Convention compliant process) and the availability of an appeal to the SAC (which he also submits is a Convention compliant process and one which involves a complete rehearing). In Mr. Havers’s submission the availability of these two options and the other changes to Part II of the 1955 Act not considered in Thompson cure the Art 6 deficiencies of summary dealings viewed on their own.[46]In Findlay, the European Court, citing De Cubber v Belgium (1987) 7 EHRR 236, said that the flaws in the court-martial process under the un-amended 1955 Act were not remedied by any subsequent review proceedings since the applicant, facing as he was serious charges classified as “criminal” both as a matter of domestic and Convention law, was entitled to a first instance tribunal which fully met the requirements of Art 6. (Para 79).[47]In Millar v Dickson et al [2001] UKPC D4; [2002] 1 WLR 1615, Lord Hope said: The right which a person has under Article 6 (1) of the convention to a hearing by an independent and impartial tribunal is fundamental to his right to a fair trial. Just as the right to a fair trial is incapable of being modified or restricted in the public interest, so too the right to an independent and impartial tribunal is an absolute right. The independence and impartiality of the tribunal is an essential element if the trial is to satisfy the overriding requirement of fairness. The remedy of appeal to a higher court is an imperfect safeguard. Many aspects of a decision taken at first instance, such as decisions on the credibility of witnesses or the exercise of judgement in matters which are at the discretion of the presiding judge, are incapable of being reviewed effectively on appeal. As Lord Steyn said in Brown v. Stott [2001] 2 WLR 817, 840A, it is a basic premise of the Convention system that only an entirely neutral and impartial and independent judiciary can carry out the primary task of securing and enforcing Convention rights. (para 52)

Lord Clyde said: As a matter of generality a lack of independence in the tribunal may not necessarily be fatal to the validity of a hearing. The recent decision of the House of Lords in R (Alconbury Developments Ltd) v. Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389 provides one example where in the particular context of town and country planning an overall fairness in the process may be achieved despite a lack of independence in one of the stages. In such cases the global view of the whole proceedings may make it possible to conclude that overall there was a fair trial. But it is important to notice that the impartiality of the tribunal in criminal cases is not a matter which can be cured by the existence of a right of appeal to a court which itself satisfies the requirements of Article 6 (1) (De Cubber v. Belgium 7 EHRR 236). In Findlay v. United Kingdom 24 EHRR 221 the Court held that the lack of independence of the tribunal in court martial proceedings was not remedied by the presence of safeguards, which included an oath taken by the court martial board, and stated, at p 246, para 79: “Nor could the defects…….. be corrected by any subsequent proceedings. Since the Applicant’s hearing was concerned with serious charges classified as ‘Criminal’ under both domestic and conventional law, he was entitled to a first instance tribunal which fully met the requirements of Article 6 (1)”. (para 81) “Nor could the defects…….. be corrected by any subsequent proceedings. Since the Applicant’s hearing was concerned with serious charges classified as ‘Criminal’ under both domestic and conventional law, he was entitled to a first instance tribunal which fully met the requirements of Article 6 (1)”. (para 81)

[49]It is important to appreciate that in Findlay and the later case of Morris the right of review relied on as a cure for Art 6 deficiencies consisted of an appeal to the Courts-Martial Appeal Court for which leave was required and which did not consist of a full re-hearing but a review to determine if the conviction was unsafe or the sentence inappropriate. And in Thompson, the right of review relied on was the right under s. 78 (5) of the un-amended 1955 Act to elect trial by court-martial within 24 hours following an adverse finding by the CO. In our judgement, Lord Hope and Lord Clyde were not saying that the right to an Art 6 compliant appeal in the nature of a complete re-hearing cannot be sufficient to secure to a person tried by a non-compliant tribunal his Art 6 rights.[50]Miss Edington concedes that court-martial proceedings held following an election under s. 76AA and appeals conducted by the SAC comply with Art 6. In our judgement that concession is rightly made. As stated above, Army courts-martial under Part II of the amended 1955 Act were held by the House of Lords in R v Spear and others; R v Boyd; R v Saunby and others to be Art 6 compliant and in Cooper the Grand Chamber of the European Court reached the same conclusion in respect of Air-Force court-martials held under very similar provisions. The constitution and operation of the SAC is virtually identical to Army and Air-Force courts-martial. In Cooper the court found that there was no reason to cast doubt on the finding in Morris as to the genuineness of the separation of the prosecuting, convening and adjudicating roles of higher authority, the prosecuting authority and the Court Administration Officer in the court-martial process. The court also held that there were no grounds for questioning the independence of air-force judge advocates whose position is directly comparable to army judge advocates sitting both in courts-martial and the SAC. The court further held that there were sufficient safeguards of the independence of the ordinary [military] members of the applicant’s court-martial.[51]It goes without saying that courts-martial held following an election made under s. 76AA are first instance tribunals. SAC appeals, ex hypothesi, are not first instance tribunals stricto sensu but the SAC conducts a completely fresh hearing in the manner described in paragraph 38 above. It follows, submits Mr. Havers, that in substance an accused who elects not to be tried by court-martial and is dealt with summarily by his CO has the benefit of a tribunal which fully meets the requirements of Art 6. Accordingly, the appellant’s rights under Art 6 (1) and (3) were not breached.[52]Miss Edington relies on the following passage in the judgement in Thompson in which the European Court addressed the question whether the applicant had waived non-compliance with Art 6: The court notes, in the first place, that the applicant was directly subordinate, and in close structural proximity, to his commanding officer, a factor which undoubtedly would have affected the free and unambiguous nature of any choice between a summary trial and a court martial. The applicant would also have been influenced by the fact that a summary procedure involved a maximum sentence of 28 days (and 60 days only if extended powers were granted) whereas trial by a district court martial could have in theory (and despite the terms of QR 6.121) lead to a sentence of up to 2 years imprisonment. Additional evidence emerging after his election for a court martial could have lead to a more serious charge being laid against him (QR 6.089). Moreover, the fact that the option was presented to him at all meant that his commanding officer considered him to be guilty as charged and, further, that he warranted more than a minor punishment. The applicant would have been aware of all of these matters from, inter alia, the information pamphlet which he accepted he would have obtained in Northern Ireland….. Thirdly, the applicant was a layman not in a position to evaluate his legal position in February 1997, or, consequently, the options to be pursued by him. In addition, legal representation was not allowed at the summary hearing when the opportunity to elect was afforded to an accused which absence, in turn, would have rendered it difficult for a lawyer comprehensively to advise an accused during the following 24 hours when the election could have become definite. (Para 44).[53]Founding on this reasoning, Miss Edington submits that because an accused is “directly subordinate and in close structural proximity to his commanding officer” he does not have a sufficiently free choice to opt for trial by court-martial or to appeal to the SAC for it to be said that summary dealing is Art 6 compliant. She also contends that since an election under s. 76AA has to be made at a summary dealing which is non-compliant with Art 6, the right to make such an election cannot be taken into account in determining whether an accused has the protection of Art 6. She further argues that even though an accused is entitled to legal assistance in deciding whether to lodge an appeal against a summary dealing finding, the decision is not a free one because of the power the CO has over the accused.[54]It would appear that, apart from the relevant statutory and regulatory provisions, there was no evidence before the European Court in Thompson to assist on the question whether the accused had a free and unambiguous choice to opt for court-martial trial. This court, however, has the benefit of the evidence of the Vice Chief of the Defence Staff. In paragraphs 26 to 29 of his witness statement, Sir Anthony Bagnall says:26. The protection of the accused’s human rights is a paramount consideration. Protection for these rights is provided in two ways. First, the accused has a right to elect trial by court-martial, on terms that the court-martial may not substitute a more serious charge and that the court-martial is restricted to the powers of punishment that the CO would have. Secondly, the accused has a right to appeal on finding or sentence to the Summary Appeal Court.27. These rights are statutory rights, not concessions by the chain of command. But they will not be effective if the accused feels constrained in his exercise of either of them. It has been suggested that this could happen, or might reasonably be supposed to happen, simply because of the relationship of the accused and the CO. My view is that members of the Armed Forces do not feel constrained in exercising their rights. In relation to this I would mention first that I believe that the statistics on the exercise of these rights are consistent with my view. There are of course a very large number of minor charges for non-criminal offences under the Army Act, such as breach of standing orders. In such minor cases, carrying very minor punishments, I would not expect a significant exercise of the right to elect court-martial, or the right to appeal to the Summary Appeal Court. However, I have obtained the Army figures for the number of appeals in cases of summary criminal charges and for summary criminal or Service charges in which a punishment of detention, a fine of over £500 or a reduction in rank was imposed for the period from October 2000 to December 2004. The figures have been prepared by the Post-Trials Section of the Army Directorate of Personal Services from records which they compile, and I believe them to be accurate. The figures are as follows: Summary convictionsfor criminal charges: 2302; appeals 127. Summary dealings for criminal or Service offences for which more serious punishments imposed by the CO: - detention 8268; 499 appeals; - reduction in rank 503: 73 appeals; - fine of over £500, 1318; 81 appeals. 28. I have obtained from the Army Prosecuting Authority figures, which I believe to be accurate, for the number of criminal charges during 2003-4 in which the accused exercised a right to elect. The number of elections was 30. I do not have exact figures for the number of criminal charges (as opposed to convictions) during that period, but understand that a reasonable estimate (based on the above figures for convictions for October 2000- December 2004) would be 1500. 29. I believe that the above figures are consistent with my view that soldiers have confidence in their COs and in the summary system, but are not afraid to exercise their rights whenever they feel it is appropriate. But my belief that members of the Armed Forces do not feel constrained in exercising their rights is based first and foremost on the procedures and on the relationship of mutual respect and trust which I have described above. The explanation in pamphlets provided by the Army of the right to elect and of the right to appeal, and the Accused’s Adviser’s rôle in advising the accused on these rights, not only ensure that the accused is informed and understands his rights, but also make it clear that these are rights which the Army intends all accused to consider seriously and exercise whenever justified. But more fundamental are the relationship of trust by the soldier in both his immediate superior and his CO, and the relationship of responsibility on the part of both the Accused’s Adviser and the CO. It is this relationship, and the responsibility it imposes on the CO for the command, discipline, welfare and morale of all members of the unit which are the essence of the ethos of the modern Army and of the fair and effective operation of a CO’s summary jurisdiction.[55]In these paragraphs, Sir Anthony is basing his view that members of the Armed Forces do not feel constrained in exercising their rights on his own very considerable experience as a serving officer as well as on the statistics he produces, which he says “are consistent with my view”. Miss Edington submits that Sir Anthony’s statistics have to be seen in the light of the number of summary dealing findings that are overturned on review and on appeal. Her information was that half of the cases that go to review are discontinued and that half of the appeals against findings to the SAC are successful. However, she adduced no evidence to prove these statistics and the respondent and intervener were unable to assist because they had had no notice of the point. However, even if the statistics are as suggested by Miss Edington, we do not think they substantially undermine Sir Anthony’s evidence, which we accept.[56]In our judgement, on the evidence before us and in light of the relevant statutory and regulatory provisions, a soldier does have a free and unrestrained right to elect for trial by court-martial and to lodge an appeal following a summary dealing. As recorded above, an accused has to be provided with the “Rights of a Soldier” pamphlet and the form entitled “Information on Election for Court Martial” as soon as practicable after the decision that the charge will be dealt with summarily. Although there is no legal representation at the hearing, legal advice is available to soldiers charged with an offence that is to be dealt with summarily. The accused also has an Accused’s Adviser whose duty it is to advise him on the option to elect trial by court-martial. Unlike the situation in Thompson, if the accused elects trial by court-martial he is not at risk of a greater punishment than can be imposed by a CO on a summary dealing. Further, as set out in paragraph 32 above, if the accused opts for trial by court-martial, the APA cannot prefer a more serious charge or otherwise prefer additional charges unless he consents or the charges are sent back to the CO when the whole process will start again with the accused having the right to elect trial by court martial if the CO decides on a summary dealing.[57]If a finding is made against a soldier at a summary dealing the CO must promptly notify him of the charge proved and of his entitlement to appeal to the SAC and to legal aid and representation for such an appeal (regulation 28 (4)). The accused is also informed about his right to appeal in “Rights of a Soldier” and, as already stated, it is the duty of the Accused’s Adviser to ensure that the accused understands the implications of whether to appeal. Moreover, the accused has fourteen days from the award of punishment in which to lodge an appeal (s. 83ZE), a period of time which in our view allows more than sufficient time to take legal advice.[58]We reject Miss Edington’s submission that the election process under s. 76AA is itself in breach of Art 6 because it has to be made at a summary dealing. The procedure that a CO must adopt at a summary hearing requires him to ask the accused if he wants to opt for court-martial and this is done at an early point in the dealing. In our judgement, when the CO makes this enquiry and the accused responds, the tribunal is not engaged upon the determination of the criminal charge. Thus, although an election under s. 76AA must be made in the course of a summary dealing, the election process under that provision is not in breach of Art 6. Even if it were, we think that the right to elect trial by court-martial would still be a process that could be taken into account in favour of the proposition that, taking a global view, summary trial by a CO complies with Art 6.[59]The substance of the matter therefore is that an accused soldier can be tried de novo by a court-martial or by the SAC and he has a free and unrestrained choice to elect the former rather than summary trial and the latter if a finding is made against him on a summary dealing. In our judgement it follows that an accused soldier who is dealt with summarily for an offence under Part II of the 1955 Act does enjoy the rights conferred by Art 6. Accordingly we find that the summary dealing conducted by Lieutenant Colonel Budd did not breach the appellant’s rights under Art 6 (1) and (3).[60]Given this finding it is strictly unnecessary to consider the respondent’s contention that if there had been a breach of the appellant’s Art 6 rights, the appellant waived that breach by opting to be dealt with summarily rather than by court-martial. However, the matter was fully argued and in the circumstances we think that we should express our view on this aspect of the appeal.[61]In Millar v Dickson et al (above) Lord Bingham and Lord Hope proceeded on the basis that a breach of the Art 6 (1) right to an independent and impartial tribunal could be waived, but held on the facts there had been no waiver because the appellants had not been sufficiently informed that the position of temporary sheriffs was open to question on Art 6 (1) grounds. At paragraph 31 Lord Bingham said: In most litigious situations the expression ‘waiver’ is used to describe a voluntary, informed and unequivocal election by a party not to claim a right or raise an objection which it is open to that party to claim or raise. In the context of entitlement to a fair hearing by an independent and impartial tribunal, such is in my opinion the meaning to be given to the expression. That the waiver must be voluntary is shown by Deweer v. Belgium (1980) 2 EHRR 439, where the applicant’s failure to insist on his right to a fair trial was held not to amount to a valid waiver because it was tainted by constraint: p 465, para 54. In Pfeifer and Plankl v. Austria 14 EHRR 692 there was held to be no waiver where a layman had not been in a position to appreciate completely the implication of a question he had been asked: p 713, para 38. In any event, it cannot meaningfully be said that a party has voluntarily elected not to claim a right or raise an objection if he is unaware that it is open to him to make the claim or raise the objection. It is apparent from passages already cited from cases decided by the European Court of Human Rights that a waiver, to be effective, must be unequivocal, which I take to mean clear and unqualified.[62]At paragraph 52 Lord Hope said: Mr. O’Neill said that there was no example in the case law of the Strasbourg court of a case in which a tribunal was held to be defective on this ground but that the right to object to it had been waived. But the court’s jurisprudence shows that this element of the right to a fair trial, like the right to a public hearing, is not so fundamental that it is incapable of being waived if all the circumstances which give rise to the objection are known to the applicant and the waiver is unequivocal. In practice, waiver of the right is not uncommon, as in the case where the parties agree to the resolution of their dispute by private arbitration or the payment of a fixed penalty is tendered in composition of a criminal charge. The legal system would be unduly hampered if the right to a public hearing by an independent and impartial tribunal were to be incapable in any case of being waived.[63]Lord Clyde, whilst agreeing that waiver was not made out on the facts, appeared to doubt that the right to be tried on a criminal charge by an independent and impartial tribunal could be waived. In paragraph 81 he said: ….It is clear that as a matter of generality it is possible to waive a Convention right. It has been repeatedly affirmed that to be effective waiver must be established in an equivocal manner and there must be ‘minimum guarantees commensurate to its’ importance’: Pfeifer and Plankl v Austria 14 EHRR 692, 712 para. 37. But the critical question here is whether a waiver is possible where the matter is one of a lack of independence and the case is a criminal one. I have not been persuaded from the material put before us that an objection to the lack of independence and impartiality ‘such as the one presented by the Appellants here’ has been recognised by the European Court of Human Rights as one which can be waived. In Deweer v. Belgium 2 EHRR 439, 460-461, para 49 the court recognised that waivers could be made in civil matters in the form of arbitration clauses and in criminal cases in the form of fines paid by way of compositions. The court stated that:
‘The waiver, which has undeniable advantage for the individual concerned as well as for the administration of justice, does not in principle offend against the Convention.’
But that is a very different kind of situation from that which is before us in the present cases. In Pfeifer and Plankl v. Austria 14 EHRR 692, 713, para 39 the court held that the decision in question was invalid ‘even supposing that the rights in question can be waived by a defendant’. In Bulut v. Austria 24 EHRR 84 two opportunities were given to the accused’s lawyer to challenge one of the judge’s on the ground of his previous involvement in the case. On the first occasion the lawyer did not reply to the note asking whether he wished to make a challenge. On the second occasion at the outset of the trial, the record of the court was to the effect that the parties had waived the right to raise the point. The European Court of Human Rights held that the fear of lack of impartiality lacked objective justification, adding, at p 101, para 34, that in any event ‘it is not open to the applicant to complain that he had legitimate reasons to doubt the impartiality of the court which tried him, when he had the right to challenge his composition but refrained from doing so.’ The Court did not decide whether a waiver could be made. Judge Morenilla, at pp 117-118, para 5, in his partly dissenting opinion thought the right to an impartial tribunal was an absolute right which could not be waived and he pointed out that the court had had an opportunity to decide the issue but had not considered it appropriate to do so. I note that in Scotland it has even been doubted whether a declinature by a judge who was a shareholder in one of the parties to a criminal proceeding could be waived by consent of the parties: Caledonian Railway Company v. Ramsay (1897) 24 R (J) 48.[64]Lord Nicholls and Lord Scott agreed that the appeals should be dismissed for the reasons given by Lords Bingham and Hope and Clyde.[65]We respectfully agree with the approach of Lords Bingham and Hope. In our opinion, as a matter of general principle, a person can waive the Art 6 (1) and (3) rights to be tried by an independent and impartial tribunal and to legal assistance if he makes a voluntary, informed and unequivocal election not to claim these rights or to raise no objection to the lack of independence and impartiality of the tribunal and the lack of legal assistance.[66]As we have recorded, the appellant was represented by his solicitor, Mr. Cherry, until it was decided that the substituted battery charge should be dealt with by the CO. Mr. Cherry’s acts done within his actual or apparent authority bind the appellant and his knowledge is treated as being the appellant’s knowledge. Mr. Cherry is an experienced solicitor who has acted for many servicemen charged with offences under Part II of the 1955 Act. We have no hesitation in finding that he knew that there were very arguable grounds, namely those advanced in this appeal, for claiming that summary dealings were contrary to Art 6 (1) and (3). He was also well aware that the appellant was due to be tried on the substituted battery charge by a District Court-Martial which was a tribunal that was Art 6 (1) and (3) compliant. In our judgement, Mr. Cherry’s successful written application that the appellant be dealt with by his CO rather than by a court-martial and the subsequent appearance by the appellant before his CO constituted a voluntary, informed and unequivocal election by the appellant to raise no objection to the lack of legal representation at and independence and impartiality of the summary dealing.[67]Accordingly, for the reasons we have given, we answer the question posed by judge advocate Gribble “no” and we dismiss this appeal. -------------------- LORD JUSTICE ROSE: For the reasons given in the judgment of the court handed down, this appeal is dismissed. MR HAVERS: My Lords, there is no application for costs thus there is nothing else I need to say. MS EDINGTON: My Lords, thank you very much. LORD JUSTICE ROSE: Thank you.