§ The Parliamentary Under-Secretary of State for Defence (Mr. Ivor Caplin)On 16 December 2003 the Grand Chamber of the European Court of Human Rights delivered its judgment in the cases of Cooper and Grieves. The two cases concerned whether trial by court martial in the United Kingdom—under the system in place since the coming into force of the 1996 Armed Forces Act—was compatible with article 6.1 of the Convention.
This statement sets out the main findings of the Court and future conduct of courts martial.
Mr. Cooper was a serving member of the Royal Air Force (RAF). On 18 February 1998 he was convicted of theft by an Air Force district court martial (DCM). He was sentenced to 56 days' imprisonment, to be reduced to the ranks and dismissed from the service. The DCM comprised a permanent president, two other officers lower in rank and a civilian judge advocate.
On 3 April 1998 the Reviewing Authority, having received advice from the Advocate General, upheld the DCM's finding and sentence. The applicant appealed unsuccessfully to the Appeal Court (CMAC).
The applicant took the case to the European Court, basing his case mainly on a decision of the European Court in Morris v. UK (2002) that courts martial were non-compliant in certain respects relating to their composition and the practice of post-trial review (under 6WS which a conviction may be quashed or sentence reduced by a service reviewing authority). In Cooper v. the United Kingdom, the Court unanimously overturned its decision in Morris and held that there had been no violation of article 6.1 (right to a fair hearing and to an independent and impartial tribunal) of the European convention on human rights.
Mr. Grieves was a member of the Royal Navy. On 18 June 1998 he was convicted by a Royal Navy court martial of wounding with intent to do grievous bodily harm. He was sentenced to three years' imprisonment, reduced in rank, dismissed from the service and ordered to pay £700 in compensation. The court martial comprised a president (a Royal Navy captain), four naval officers and a judge advocate, who was a serving naval officer and barrister.
On 29 September 1998 the Admiralty Board, having received advice from the Judge Advocate of the Fleet (JAF), upheld the court martial's finding and sentence. The applicant appealed unsuccessfully to the CMAC.
Mr. Grieves took his case to the European Court. Part of his case was based on Morris. In addition he argued that the use of a serving naval officer as the judge advocate was non-compliant (in Army and RAF courts martial the judge advocates are civilians). In Grieves v. the United Kingdom the Court, as in Cooper, rejected the arguments based on Morris, but concluded that the use of serving naval officers as judge advocates in the Royal Navy did not provide a strong guarantee of the independence of naval courts martial. It thus held unanimously that there had been a violation of article 6§ 1. Under Article 41 (just satisfaction), the Court did not award the applicant any damages, but awarded him 8,000 euros for costs and expenses, less the amount received in legal aid.
The system of discipline within the armed forces is a vital contribution to their operational effectiveness and their success, to which this House has so often paid tribute. It is clearly welcome that the European Court has ruled that, as a whole, the service court martial system with its safeguards to guarantee its independence and impartiality is compliant with the ECHR. It is disappointing that the Court concluded on the more limited point in the case of Mr. Grieves that there was a violation under article 6. As explained already this does not affect Army or RAF courts martial where the judge advocates are civilians.
We are reviewing the implications of the details of judgment as a matter of urgency. On the issue of the appointment of uniformed judge advocates we have already concluded that their use should cease with immediate effect. Following legal advice, we have concluded that the judgment also requires the amendment of existing legislation to change the arrangements for the appointment of judge advocates in naval proceedings, as these appointments are made by a serving naval officer. We will shortly be putting a remedial order before both Houses for this purpose under section 10 of the Human Rights Act 1998. We aim to cause the minimum disruption to courts martial already scheduled in the new year, though some delay may be inevitable.