Regina v Boyd, Regina v Hastie, Regina v Spear (On Appeal From Her Majesty's Courts Martial Appeal Court) (Consolidated Appeals) Regina v Saunby, Regina v Clarkson, Regina v English, Regina v Williams, Regina v Dodds, Regina v Leese, Regina v Marsh, Regina v Webb, Regina v Ashby (On Appeal From Her Majesty's Courts Martial Appeal Court) (Consolidated Appeals) (Conjoined Appeals), (2002)

Status: [2002] UKHL 31

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Extract

HOUSE OF LORDS

Lord Bingham of Cornhill Lord Steyn Lord Hutton Lord Scott of Foscote Lord Rodger of Earslferry

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

Boyd, Hastie and Spear

Saunby and Others (Appellants)

The Army Prosecuting Authority

and

The Royal Air Force Prosecuting Authority

and

The Treasury Solicitor

(Respondents)

ON 18 JULY 2002

[2002] UKHL 31

LORD BINGHAM OF CORNHILL

My Lords,

1. The conjoined appeals before the House fall into two groups. The first group comprises the three cases of Aircraftman Boyd and Messrs Spear and Hastie. These three appellants were all non-commissioned officers, Boyd in the Royal Air Force, Spear and Hastie in the army. All three were charged (Spear and Hastie jointly) with assault occasioning actual bodily harm to another member of their respective services. All three were tried by district court-martial, pleaded not guilty, were convicted and were sentenced. At both the courts-martial a permanent president of courts-martial (or PPCM, Wing Commander Chambers in the first case, Lieutenant Colonel Stone in the second) presided. The sole issue in the appeal before the House in these cases is whether, because of the part played by the PPCM, the courts-martial lacked the qualities of independence and impartiality which article 6(1) of the European Convention on Human Rights requires of any judicial tribunal. The Courts-Martial Appeal Court (Laws LJ, Holman and Goldring JJ) decided this issue against the accused: [2001] QB 804.

2. The second group of appeals comprises the cases of Mr Saunby, Sapper Clarkson, Lance Corporal English, Flying Officer Williams, Senior Aircraftman Dodds, Messrs Leese, Marsh and Webb and Aircraftman Ashby. They were charged with a variety of different offences (Clarkson and English jointly). All appeared before district courts-martial (DCMs) except Williams (who, as a commissioned officer, appeared before a general court-martial, or GCM). All pleaded not guilty but were convicted, save for Ashby who pleaded guilty. A variety of different sentences were passed, ranging from 84 days' imprisonment and dismissal (Saunby, Webb) to forfeiture of three years' seniority (Williams). Petitions for review were rejected in all cases save in that of Dodds, whose sentence of 112 days' detention was reduced to 28 days'. The Courts-Martial Appeal Court (Laws LJ, Turner and McCombe JJ) dismissed appeals by all appellants save in the case of Marsh, whose sentence of 56 days' imprisonment was reduced to 42 days' detention, a reduction which greatly mitigated the financial loss suffered by him on leaving the service: 30 July, 2001, unreported. All the offences of which these appellants were convicted were offences under the ordinary law applicable in the United Kingdom. All the offences (with two exceptions) were committed within the United Kingdom. The issue which arises in all these appeals is whether a trial by court-martial in the United Kingdom of an offence against the ordinary criminal law of the land is compatible with article 6(1) of the European Convention, either generally or in cases where the offence in question had been committed within the United Kingdom.

3. Since the dawning of the modern age the defence of the state against the threats and depredations of external enemies has been recognised as one of the cardinal functions of government. To this end most countries have over time established regular armed forces, in this country a navy, then an army, and then in due course an air force. The effectiveness of such forces has been recognised to depend on their being disciplined forces: that is, forces in which lawful orders will be obeyed, the law will be observed and appropriate standards of self-control and conduct will be shown.

4. While disciplinary rules and procedures will inevitably vary from state to state, three principles would now, I think, command acceptance in any liberal democracy governed by the rule of law. (In stating these principles I draw no distinction between different services, although the issues in these appeals do not concern the Royal Navy. Nor do I distinguish between regular and reserve or volunteer forces, or between men and women. It is convenient for purposes of exposition to speak of soldiers and of the army. Since the Army Act 1955 and the Air Force Act 1955 are, in the respects relevant to these appeals, indistinguishable, I shall refer only to the former and to the Courts-Martial (Army) Rules 1997 (SI 1997/169)). First, a man does not by becoming a soldier cease to be a citizen. On becoming a soldier he subjects himself to duties and exposes himself to the risk of penalties to which a civilian is not subject or exposed. But he remains subject to almost every law, including the criminal law, which binds other citizens and continues to enjoy almost all the same rights, including the right (if a charge of serious misconduct is made against him) to a fa...

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