Monday, October 30, 2006

Perceptions of bias

Despite their almost constant preoccupation with the fairness of trials, some senior appellate courts still have difficulty in appreciating what fairness means. Last week, the European Court of Human Rights corrected a House of Lords decision in a case where the fairness of a trial was critical: Martin v United Kingdom [2006] ECHR 890 (24 October 2006).

In Martin, the accused (the applicant in the ECHR) had been tried by a Court Martial in Germany, although he was a British civilian. He came within the jurisdiction of the Court Martial because he was visiting a family member who was in the military at a base in Germany, at the time when the alleged offending, a murder, occurred. The jurisdictional arrangements complied with United Kingdom legislation. The German authorities had waived jurisdiction, and the Court Martial convened under UK law.

Characteristics of the military court that were important were that a superior officer presided over the 7 member tribunal, and only two members were civilians (from the United Kingdom).

The House of Lords had approached the issue of trial fairness by asking whether there had been any unfairness which might have rendered the verdict unsafe: see the extract from Lord Hope’s speech, quoted by the ECHR at para 20 of Martin. The error of this approach is the emphasis on pragmatism at the expense of formalism.

Fairness requires absence of bias, and even people who are “obviously” guilty - so that pragmatism requires conviction - must be tried by a court that is not biased against them - the formal requirement of fairness. The ECHR pointed out in para 42 of Martin that there are two aspects to impartiality: the tribunal must be subjectively free of bias, and there must be sufficient procedural guarantees to exclude any legitimate objective doubt about that.

The abstract jurisdictional criteria established in legislation were not a sufficient guarantee of absence of actual or perceived bias (para 44), as the issue had to be determined in the circumstances of each case. Here, the structure and procedure of the applicant’s Court Martial were sufficient to raise a legitimate fear as to its lack of independence and impartiality. The judgment does not particularise the evidence that supported this conclusion, but, interestingly, it holds that here, even the presence of a Vice-Judge Advocate General (a senior judge appointed by the Lord Chancellor, who could give the tribunal binding directions on the law) was insufficient: he did not have influence and involvement in the tribunal proceedings sufficient to guarantee the independence and impartiality of the applicant’s court-martial (para 52).

The ECHR declared a breach of Article 6 (the right to trial by a fair and independent tribunal) and awarded damages to the applicant. Subject to an appeal to the Grand Chamber, the conviction will be quashed pursuant to domestic law: Randall v R [2002] 1 WLR 2237, 2251 (PC): “The right to a fair trial is one to be enjoyed by the guilty as well as the innocent, for a defendant is presumed to be innocent until proved to be otherwise in a fairly conducted trial.”

Unfortunately, the judgment in Martin is insufficiently detailed to dispel some doubts about its correctness. If this Court Martial was unfair to the civilian accused, would the same proceedings have been unfair to an accused who viewed them a soldier? If the test for this sort of bias is whether an objective observer would have concerns about the fairness of the proceedings, should that observer be conceptualised as if he were in the military, or should he be a civilian? Should this characteristic of the observer change according to whether the proceedings are against a soldier or a civilian?

It may be that, in the circumstances of this case that are not revealed in the judgment, even an accused who was in the armed services would have had legitimate objective concerns about the fairness of the proceedings because of the dominance of the superior officer who presided.

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