Spear and Hastie
R v Spear, Hastie and Others (Consolidated Appeals)
R v Saunby and Others (Consolidated Appeals)
Conjoined Appeals,  UKHL 31 (2002 June 11, 12, 13; July 18
House of Lords (Lord Bingham, Lord Steyn, Lord Hutton, Lord Scott and Lord Rodger)
The appointment and participation of Permanent Presidents in military tribunals did not violate Article 6
The facts of the case of Aircraftman Boyd and Messrs Spear and Hastie are summarised below. The second group of appeal concerned the cases of members of the airforces who were carged with a variety of different offences. They were charged and convicted before district courts-martial. The Courts Martial Appeal Court dismissed their appeals on 30 July 2001. The issue that arose in all of these appeals was whether trial by court martial of an offence against the ordinary criminal law of the land was compatible with Article 6(1) of the Convention, either generally or in cases where the offence in question had been committed within the United Kingdom
All appeals dismissed. Their Lordships held, unanimously, that the trial of a civil offence by court-martial was not in itself incompatible with the right of an accused under Article 6(1) of the Convention to a fair hearing by an independent and impartial tribunal; that safeguards designed to ensure the independence and impartial tribunal, including the oath taken by them and their obligation to observe the directions of the judge advocate were adequate. Indeed, Lord Rodger of Earlsferry pointed out that the steps taken to ensure that the members of a court martial act independently and impartially are, on one view, even more strict than with a jury. The independence and impartiality of courts-martial were not compromised by the presence of permanent presidents, or by the members being subject to annual report, though it would be prefereable if that practice were discontinued in the case of permanent presidents.
R v Spear, Hastie and Others (2001) 2 WLR 1692 : (2001) Crim LR 485
Courts Martial Appeal Court (Laws LJ, Holman J, Goldring J) 15/1/2001
The defendant soldiers had been convicted for for assault occasioning actual bodily harm by courts martial. They appealed on the grounds that the permanent presidents participating on their tribunal lacked impartiality and independence. On 6 March 2000 Assistant Judge Advocate General Pearson at the Aldershot Court Martial Centre ruled that the appointment of a Permanent President to a district court martial meant that the tribunal was not impartial and independent (McKendry).
The defendants submitted that their trials had violated Article 6 of the European Convention on Human Rights since, following McKendry, the appointment of a Permanent President or a part-time judge advocate to their courts martial did not give rise to an impartial and independent tribunal. They also complained that a late grant of legal aid had inhibited the preparation of their defence.
After this judgment was delivered in draft, the defendants submitted that Laws LJ should have declared that he had represented the ministry of defence as junior treasury counsel and that remarks he made during the hearing demonstrated his partiality on the subject of the Convention.
Appeals dismissed. Each of the defendants had had a fair trial in accordance with the requirements of the common law and of Article 6 of the Convention and their convictions were safe. The appointment of Permanent Presidents did not violate Article 6.McKendry was distinguised in that that case had been decided on the grounds that Permanent Presidents were not appointed to their posts for sufficient periods of time to be fully independent, they were inappropriately trained, they could be removed arbitrarily by the court administration officer, and the practice of Permanent Presidents being obligated to report to higher authority significantly affected the perception of their independence. The present cases could be sharply distinguished from Starrs v Ruxton (2000) SLT 42, and Findlay v United Kingdom (1997) 24 EHRR .
Permanent Presidents were sufficiently secure in their tenure; they operated outside the ordinary chain of military command, and no Permanent Presidents had ever been removed from office implying that highly exceptional circumstances would be required for their removal. The Permanent Presidents in the present case had never entertained any hope or expectation of further promotion.
A useful although not exclusive test for Article 6 of the Convention was the common law's reasonable man test. When appraised of all the relevant facts about these particular cases and the general practice he would conclude that no real doubt as to the court's impartiality or independence existed. Since part-time judge advocates only lacked security of tenure insofar as the Lord Chancellor could terminate their position for judicial error, neither their impartiality nor their independence was undermined for the purpose of Art.6 of the Convention.
Laws LJ's appointments had been a matter of public record and predated his appointment to the bench. No such earlier connection gave rise to a reasonable apprehension of impartiality. His comments during the hearing did not represent a settled or provisional view of the case in hand.
COMMENT (January 19 2001)
The Court of Appeal has put out a clear signal in this case that the European Convention on Human Rights should not be used to undermine the existence of self-disciplinary organisations. Cases such as Alexander Findlay v United Kingdom (1997) which concerned the role of the convening officer in military tribunals, have largely been overtaken by the passing into force of the Armed Forces Act 1996. The guiding principle of present court martials is that they consist of members who are not under the command of a presiding military authority. Thus this case is very different from the pre-1996 position. In considering the role of permanent presidents, the Court of Appeal pointed out that the decision in McKendry (6/3/2000), that their involvement with the prosecuting authority gave rise to a risk of bias, must have been based on an incorrect assessment of the procedure, since permanent presidents are not required to be briefed by the army prosecuting authority. It is now uncertain whether McKendry is still good law; it has had the effect of abolishing or at least suspending the permanent president regime but the approval of that regime in this case may restore it to its former role.
Some attention should be given to comments made by Laws LJ during the course of argumentation. He said "I have a wholly unorthodox fear, which I am sure I am not allowed to voice or even entertain, that Convention rights bear some similarity to iatrogenic disease; I suspect that until these points were taken fuelled by the Convention, nobody dreamt of supposing that there was unfairness in the Convention system."
The defendants argued that such an observation gave rise to a fear of bias against Convention claims. This argument is not as fanciful as it seems; it will be remembered that a similar challenge succeeded in (1) Lieuwe Hoekstra (2) Jan Van Rijs (3) Ronny Van Rijs (4) Hendrik Van Rijs v HM Advocate (No.1) 2000. However, it got short shrift in this case. It comes as some relief that the latitude of judicial thinking will not be threatened by the tyranny of Convention correctness.
Rosalind English, 1 Crown Office Row