Critically Evaluate, in 3000 words, how the cases of Boyle v United Kingdom ( Application No 55434/00) in the European Court of Human Rights & Findlay v UK ( 1997) 24 EHRR 221 (para 82) have made an impact on Military Law within the UK.

The defendant then went on to argue that in the European Convention on Human Rights (ECtHR) by placing him under close arrest the CO had infringed his right under Art 5, in specific article 5.3 which states, “Everyone arrested or detained ... shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial...” The defendant's main complaint was that his commanding officer could not constitute a suitable judge or other officer because he was part of the prosecution machinery, because his power to decide on close arrest conflicted with his responsibility for discipline within his command and because he lacked the necessary qualifications or experience. The ECtHR's ruling that the CO is not an independent or impartial forum not only calls into question the rules surrounding pre-trial detention (as was the case in Boyle) but questions also the general practice of a CO acting as a quasijudicial figure.

Since Boyle’s detention there has been some changes in the law, the Armed Forces Discipline Act 2000 has amended section 75 of the Army Act 1955 and the Army Custody Rules 2000 which replaced the 1997 Regulations. These have both brought radical changes to the law, A CO is now allowed to keep a person in custody for a short period of time but he is then required to obtain the consent of a judicial officer to prolong that detention. If the CO is not going to deal with the accused then he must be brought before a court martial before 8 days have passed. If that cannot be done a special report must be submitted by the CO to the higher authority and each 8 days after that. If this has not been done in time then the accused must be released.

 A person can only be kept in custody if there is good reason for doing so. The only reason that he can keep the defendant in custody is if by keeping him in custody without charge he is going to preserve evidence related to the offence of to obtain evidence by questioning. He must also make a written record of all his decisions and the reasons why he made them. During this pre-trial custody the CO must constantly review the situation to make sure that the investigation is being carried out diligently.

The Co can keep the defendant in custody for a maximum of 48 hours with review points every 12 hours. At these time periods the CO must always check if the grounds for custody are still in place and that the investigation is being carried out diligently and may set shorter time periods to ensure this. If after 48 hours custody of the accused is still needed the CO must apply to a Judicial Officer JO through the Army Courts Service ACS so that they may authorise the detention to a maximum of 96 hours. Pre-charge custody must be for the minimum time needed.

These new laws have gone a long way to ensuring that any pre-charge custody as was the case in Boyle is for the minimum time needed and only for a maximum of 96 hours. This should also coincide with the problems surrounding the European convention on Human Rights.

The second case I will now explain is that of Findlay v UK. In this case the defendant, Alexander Findlay, a Lance Sergeant in the Scots Guards had been out drinking on July 29, 1990. That evening armed with a loaded service pistol that he had improperly in his possession held members of his unit at gunpoint and threatened to kill himself and some of them. After firing two shots into a television set, he surrendered. He was then charged with a total of ten offences, six of which were civilian and four military offences. The offences included two charges of threatening to kill and three of common assault (civilian offences); two charges of conduct to the prejudice of good order and military discipline (military offences). At a general court martial on November 11, 1991 he pleaded guilty to seven of those charges and was sentenced to be reduced to the ranks, dismissed from the service and imprisoned for two years. Findlay petitioned for a reduction in sentence under the procedure laid down in the Army Act 1955, this was done without success and then sought leave to apply for judicial review of the findings of the court-martial, which was also refused. He then lodged an application in the European Court of Human Rights. When Findlay appeared before the Court of Human Rights he turned on the question of whether a court-martial constituted an “impartial tribunal” for the purposes of Article 6 of the European Convention on Human Rights. This article which explains a persons right to a fair trial says,

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. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights:

a. to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

b. to have adequate time and facilities for the preparation of his defence;

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;

d. to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

e. to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

During this case it was held that a court-martial was not sufficiently separated from the military chain of command to be considered an impartial tribunal for the purposes of Article 6.1.

Previous to these cases there was a Convening Officer who held a pivotal position in court-martial proceedings. The Convening Officer, who was a non-legally qualified officer, was responsible for the decision to prosecute, and the charges to be preferred, the appointment of the prosecutor and the executive control of the prosecution. He was also responsible for selecting the president and members of the court, who might come under his authority in the military chain of command, or who might be on his own staff. Once the convening officer and the members of his court decided the outcome of the case, nothing was final until the confirming officer confirmed that it was fair. The confirming officer was also a not legally qualified, although he acted on advice from the Office of the Judge Advocate General.

After the cases there were some major structural changes to try and increase impartiality, these changes were already written into the Armed Forces Act 1996 but did not come into effect until April 1 1997. This Act abolished the role of the convening officer and split his role into three separate bodies which were, the Prosecuting Authority, the Court-Martial Administration Officer, and the Reviewing Authority. Each of these had separate personnel working for them to increase the impartiality. The Confirming officer has also been abolished and has been replaced by an automatic review. In addition to this the Army Legal Services has been split into three separate branches dealing with, prosecutions, legal advice, and the provision of legal aid.

Responsibility for prosecutions now rests with the Army Prosecuting Authority, The Army Prosecuting Authority himself is the Director Army Legal Services who is appointed by Her Majesty the Queen under section 83A of the Army Act 1955. 

In the case of an alleged offence committed within a military context, the matter will initially be investigated by the Royal Military Police. The papers will then be passed to the suspect's Commanding Officer. he Commanding Officer is encouraged, but not bound, to seek advice from the Advisory Branch, which is now wholly separate from the Prosecuting Branch, and is headed by a Brigadier, in an advisory role. Once he has taken this advice he then has to make one of four decisions, either to, (a) no offence has been committed; (b) the matter is one for summary disposal; (c) the matter may be dealt with either summarily or by court-martial. For example, a charge of assault occasioning actual bodily harm, to be tried by court-martial, would be appropriate, but there is no legal objection to dealing with the matter summarily as a common assault; (d) the offence is one to be referred to higher authority for consideration for trial by court-martial.

The Commanding Officer then submits the case papers to higher authority within the military chain of command, normally to Brigade level. He would then also take advice from the advisory branch. He must then decide if there is a good military reason for the case not to proceed much like the Crown Prosecution Service would do in a civilian case when deciding upon public interest. This leaves the positive test of public/service interest in prosecution to legally qualified persons. There need not have been any charge up until this point just like in a civilian case but if trial by court martial is considered potentially appropriate, he must pass the papers to the Prosecuting Authority.

Day-to-day prosecution work is delegated by the Director of Army Legal Services to a Brigadier (Prosecutions), based, to emphasise his separateness from the army chain of command, at RAF Uxbridge. To further emphasise the separateness, under the new system, no officer serving in the Advisory Branch can act as a prosecutor. Previously, the Convening Officer was responsible for setting the date and venue of the court-martial, and appointing the president and members. This function has now passed to a Courts-Martial Administration Officer (CMAO). In selecting the president and members, the CMAO is required to avoid the chain of command from which the accused comes, and in particular must avoid the Brigade whose Brigade Commander acted as the higher authority.

The findings of a court-martial are subject in all cases to automatic review. It is the intention that the findings of a general court-martial will be reviewed by a Major General, those of a district court martial by a Brigadier. The European Commission in Findlay commented on the lack of transparency in the confirmation and review stages, and this concern has been dealt with under the new Act.

As you can see the case of Findlay v UK has had a major impact on military law within the UK even though the European Court of Human Rights never actually held that the procedures were unfair just that there was they were not sufficiently separated from the military chain of command to be considered an impartial tribunal.

Both of these cases have affected Military Law in the UK a great deal and together go a long way to ensuring that Military proceedings have come more inline with the proceedings in civilian life, where there are much more stringent rules that protect people’s human rights but still ensure that anyone who has broken the law or rules are dealt with fairly and are given the appropriate sentences.

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