The Morris Case

CHAMBER JUDGMENT IN THE CASE OF MORRIS v. THE UNITED KINGDOM

106
26.2.2002

The European Court of Human Rights has today notified in writing a judgment [fn] in the case of Morris v. the United Kingdom (no. 38784/97). (The judgment is available only in English.)

The Court held unanimously that there had been:

	a violation of Article 6 § 1 (right to a fair hearing) of the European Convention on Human Rights as regards certain of the applicant’s complaints about the general structure of the court martial system;
	no violation of either Article 6 § 1 or Article 6 § 3 (c) of the Convention as regards the applicant’s specific complaints.

Under Article 41 (just satisfaction), the Court held that the finding of a violation in itself constituted sufficient just satisfaction for any non-pecuniary damage sustained by the applicant and awarded him 30,000 euros for legal costs and expenses.

1.  Principal facts

The case concerns an application brought by a United Kingdom national, Dean Morris, who was born in 1975 and lives in Colchester.

The applicant claims he became the target of bullying while serving in the Household Cavalry Mounted Regiment of the British Army and that, towards the end of November 1992, he was hit on the side of the head, causing him to fall from a horse and strike his head on the ground. On 26 February 1993, fearing a further attack, he went absent without leave. He was arrested on 16 October 1996 and charged with being absent without leave. He was remanded by his Commanding Officer for trial by district court martial on 13 March 1997.

The applicant applied to the Army Criminal Legal Aid Authority for legal aid, which was initially refused. He was subsequently offered legal aid subject to a contribution of 240 pounds sterling. He refused the offer, with the result that he was represented during the court martial by a defending officer alone, appointed by his Commanding Officer from within his own unit.

The court martial was held on 28 May 1997. The court was comprised of a Permanent President of Courts Martial (an army Lieutenant Colonel due to remain in his post for four years until retirement), two army Captains and a legally qualified civilian judge advocate. The applicant pleaded guilty and was sentenced to dismissal from the army and nine month’s detention. The defending officer erroneously advised him that if he appealed unsuccessfully he might face a longer period of detention.

On 31 May 1997 the applicant instructed a solicitor, who lodged a petition with the Defence Council in its capacity as "reviewing authority" of all court martial convictions and sentences. The petition emphasised that the applicant had had no legal representation and that his allegations of assault had not been presented to the court. The defending officer provided a statement to the Defence Council explaining why he had advised the applicant to plead guilty. The petition was refused. The applicant’s application for leave to appeal to the Court Martial Appeal Court was also refused.

2.  Procedure and composition of the Court

The application was lodged with the European Commission of Human Rights on 31 October 1997 and transferred to the Court on 1 November 1998. It was declared admissible on 3 July 2001.

Judgment was given by a Chamber of seven judges, composed as follows:

Jean-Paul Costa (French), President,
Willi Fuhrmann (Austrian),
Loukis Loucaides (Cypriot),
Nicolas Bratza (British),
Hanne Sophie Greve (Norwegian),
Kristaq Traja (Albanian),
Mindia Ugrekhelidze (Georgian), judges,

and also Sally Dollé, Section Registrar.

3.  Summary of the judgment

Complaints

The applicant complained, under Article 6 § 1, about the structure of the court martial system in the United Kingdom. He said, in particular, that a court made up largely of army officers trying charges brought by the army could not constitute an "independent and impartial tribunal", particularly in the case of offences against army discipline. He highlighted the role played by the "reviewing authority" and referred to army influence elsewhere in the court martial structure. He complained specifically about the conduct of his defending officer, and under Article 6 § 3(c) about the failure to provide legal representation for his court martial.

Decision of the Court

The Court noted that the changes introduced by the Armed Forces Act 1996 had gone a long way towards meeting its concerns about the structure of the court martial system. The posts of convening officer and confirming officer had been abolished, and the roles previously played by those officers had been separated.  A separation had also been introduced between the prosecutory and adjudicatory functions at a court martial. For these reasons, the Court did not find that the applicant’s general complaint about the relationship between senior army command, as represented by the Defence Council and the Adjutant General, and those involved in the applicant’s court martial proceedings, of itself gave rise to any violation of Article 6 § 1.

Turning to the question of whether or not the applicant’s court martial collectively constituted an "independant and impartial tribunal" for the purposes of Article 6 § 1, the Court considered it necessary to examine the positions of both the Permanent President and the two serving officers.

The Permanent President in the applicant’s case had been appointed in January 1997 and was due to remain in post for four years, eight months, until his retirement in September 2001. He worked outside the chain of command. Although there was no written guarantee against premature removal of Permanent Presidents, there was equally no record of a Permanent President ever having been removed from office. The Court found that the presence of the Permanent President did not call into question the independence of the court martial. Rather, his term of office and de facto security of tenure, the fact that he had no apparent concerns as to future army promotion and advancement and was no longer subject to army reports, and his relative separation from the army command structure, meant that he was a significant guarantee of independence on an otherwise ad hoc tribunal.

In contrast to the Permanent President, the two serving officers who sat on the applicant’s court martial had not been appointed for any fixed period of time. Rather, they were appointed on a purely ad hoc basis, in the knowledge that they would return to their ordinary military duties at the end of the proceedings. Although the Court did not consider that the ad hoc nature of their appointment was sufficient in itself to render the make-up of the court martial incompatible with the independence requirements of Article 6 § 1, it made the need for the presence of safeguards against outside pressures all the more important.

The Court recognised that certain safeguards had been in place in the present case. For example, the presence of the legally-qualified, civilian judge advocate in his enhanced role under the 1996 Act was an important guarantee. The presence of the Permanent President provided another guarantee. The Court noted also the protection offered by the statutory and other rules about eligibility for selection to a court martial and the oath taken by its members.

However, the Court considered that the presence of these safeguards was insufficient to exclude the risk of outside pressure being brought to bear on the two relatively junior serving officers who sat on the applicant’s court martial. In particular, it noted that those officers had no legal training, that they remained subject to army discipline and reports, and that there was no statutory or other bar to their being made subject to external army influence when sitting on the case. This was a matter of particular concern in a case such as the present where the offence charged directly involved a breach of military discipline. In this respect, the position of the military members of the court martial was not analogous with that of a member of a civilian jury who was not open to the risk of such pressures.

In relation to the applicant’s complaints about the role played by the "reviewing authority", the Court noted that the authority was empowered to quash the applicant’s conviction and the sentence imposed by the court martial. More importantly, it had powers to reach any finding of guilt which could have been reached by the court martial and to substitute any sentence which would have been open to the court martial, not being in the authority’s opinion more serious than that originally passed. The Court considered that the very fact that the review was conducted by such a non-judicial authority as the "reviewing authority" was contrary to the requirements of Article 6 § 1.

The Court was of the view that the fundamental flaws which it had identified were not corrected by the applicant’s subsequent appeal to the Court Martial Appeal Court, since that appeal did not involve any rehearing of the case but rather determined, in the form of a decision which ran effectively to two sentences, that leave to appeal against conviction and sentence should be refused. For all these reasons, the Court considered that the applicant’s misgivings about the independence of the court martial and its status as a "tribunal" were objectively justified and that there had, therefore, been a violation of Article 6 § 1.

The Court noted that the applicant had been offered legal aid subject to a contribution of GBP 240. It did not regard the terms of the offer as arbitrary or unreasonable, bearing in mind the applicant’s net salary levels at the time, regardless of whether or not the applicant was given the option of paying in installments. The Court noted further that, had the applicant accepted the Legal Aid Authority’s offer of legal aid, he would have been represented at his court martial by an independent legal representative. Instead, the applicant refused that offer before the Legal Aid Authority had even responded to his solicitor’s request for reconsideration of the terms of the offer.

As a result, the Court found no merit in the applicant’s complaints about the independence of his defending officer and that officer’s handling of his defence. In any event, it found that the defending officer had not failed adequately to advise or represent the applicant, save as regards the risks consequent to his appealing against the court martial’s verdict. There had, therefore, been no breach of Article 6 § 1 or § 3(c) concerning the applicant’s specific complaints.

***

The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).

Registry of the European Court of Human Rights
F – 67075 Strasbourg Cedex
Contacts: Roderick Liddell (telephone: (0)3 88 41 24 92)
Emma Hellyer (telephone: (0)3 90 21 42 15)
Fax: (0)3 88 41 27 91

The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court.