Fixing bad law: bias in military tribunals

Perceived bias can amount to a breach of a suspect’s rights at a stage of the proceedings prior to trial. This is illustrated in Boyle v United Kingdom [2008] ECHR 15 (8 January 2008). The question of whether the suspect should be released on bail prior to his court martial was determined by his commanding officer, who was potentially required to make other decisions in the proceedings, including whether to amend the charge, dismiss it, deal with it summarily, or refer it to a higher authority for determination, and whether to be involved in the prosecution of the charge. There was also a conflict between the CO’s roles because he was responsible for discipline within the suspect’s unit.

The European Court held that there had been a breach of Art 5.3 of the Convention, as the commanding officer was not within the meaning of the phrase “a judge or other officer authorised by law to exercise judicial power” because the suspect’s misgivings about the CO’s impartiality were objectively justified.

The approach to whether there is bias (actual or perceived) is the same as when the tribunal is acting as a court (eg Martin v United Kingdom blogged here 30 October 2006), but here the issue was not fair hearing (Art 6) but instead it was the exercise of judicial power (Art 5.3).

As far as remedy was concerned, the appellant had been denied bail and was acquitted at court martial. He did not claim pecuniary loss. He did seek damages for breach of his rights, but since it could not be said that if his rights had not been breached he would have been released on bail, the Court held that the judgment itself was just satisfaction for any non-pecuniary damage. For another example of this result, see Young v United Kingdom, blogged 19 January 2007.

We may wonder how snappily changes are made to the law that the European Court finds to have been in breach of the Convention. In Young, the proceedings in the European Court began on 4 July 2000 and were concluded on 16 January 2007. In the meantime, the Prison Rules were amended from 18 April 2005 in ways that appear to be designed to meet the criticisms which were made in Young.

The present case, Boyle, began in the European Court on 25 February 2000 and was in respect of proceedings that had been conducted under the Army Act 1955[UK]. New legislation, the Armed Forces Act 2006[UK] is now in place.