Aspals Court Martial/Human Rights Decided Cases

Latest Cases

**Selection of Reported Cases**
Name	Reference
*Ntaganda, Prosecutor -v-* Ntaganda** War Crimes, International Humanitarian Law, IHL, Geneva Conventions, Armed Conflict, ROme Statute, members of an armed force or group not excluded from protection against war crimes of rape and sexual slavery, international criminal law	[2017] ICC-01/04-02/06OA5
Bosco Ntaganda was criminally responsible for the rape of UPC/FPLC child soldiers, a war crime, punishable pursuant to article 8 (2) (e) (vi) and sexual slavery of UPC/FPLC child soldiers, a war crime, punishable pursuant to article 8(2)(e)(vi). Ntaganda argued, inter alia, against the confirmation of these charges on the basis that "crimes committed by members of armed forces on members of the same armed force do not come within the jurisdiction of international humanitarian law nor within international criminal law". HELD: Having regard to the established framework of international law, members of an armed force or group are not categorically excluded from protection against the war crimes of rape and sexual slavery under article 8 (2)(b) (xxii) and (2) (e) (vi) of the Statute when committed by members of the same armed force or group. Nevertheless, it must be established that the conduct in question "took place in the context of and was associated with an armed conflict" of either international or non-international character. It is this nexus requirement that sufficiently and appropriately delineates war crimes from ordinary crimes. {See an interesting critique of the decision by Kevin Jon Heller]. Coram: Claimants: Respondent:
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Martin, Daniel Jeffrey-v-R Common assault, alcohol, violence by superiors upon their subordinates, from post-traumatic stress disorder, PTSD, previous convictions, reduction in rank, pension, financial consequences, Veterans UK, sentencing guidance	[2017] EWCA Crim 648 25 May 2017 BAILII Case
On 18 May 2016, at Bulford Military Court Centre, the Appellant pleaded guilty to two charges of common assault contrary to section 39 of the Criminal Justice Act 1988 and section 42 of the Armed Forces Act 2006 ("the 2006 Act"). On 14 July 2016 he was sentenced by Assistant Judge Advocate General McGrigor and a sentencing board to reduction in rank by one rank, from Sergeant to Bombardier, the equivalent of Corporal in other parts of the service. Appeal against sentence by leave of single judge. Facts: The Appellant and a junior rank, V, began talking in a pub in the Falkland Islands, where they were both based at the time. They were engaging in banter, which was initially friendly, but became heated. The Appellant slapped the victim in the face, with his open palm, no more than three times. The second incident took place outside the pub, after the Appellant had been asked to leave. The Appellant approached V and said, "Let's settle this now". When V tried to walk away, the Appellant punched him once to the face, causing his lip to swell, an injury which required no medical treatment. HELD: The sentencing board clearly approached the question of sentence in this case properly. In all the circumstances, and given the deference that this court pays to sentences of the court martial - particularly in respect of those offences which are considered potentially detrimental to operational effectiveness - CMAC could not say that the sentence imposed was either manifestly excessive, or wrong in principle. Appeal dismissed. Coram: Lord Thomas Of Cwmgiedd (The Lord Chief Justice of England and Wales); Lord Justice Hickinbottom; and Mr Justice Goss. Appellant: Miss Gemma White Respondent: Commander D J Ward MBE
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Ross, Lieutenant Paul Ross RN-v-Secretary of State for Defence Judicial Review, Redress of Grievance, service complaint, Conviction by Court Martial, drunkenness, terms of sentence	[2017] EWHC 408 (Admin) 6 March 2017 BAILII Free
A renewed application for permission to apply for judicial review of a decision of the Appeal Body which dismissed the Claimant's service complaint in a decision dated 20th April 2016. After conviction by Court Martial for drunkenness, the CLaimant was told by the President of the Court Martial that no record of the fine or conviction should be kept with the Claimant's promotion file. But, it seems, a reference to the conviction and fine was kept with the Claimant's promotion file. The Claimant was unaware of this until he found out about it by chance in May 2011. He claimed it had affected his promotion chances. HELD: Application for permission to apply for judicial review refused. Coram: Mr Justice Nicol Claimant: Hugh O'Donoghue Defendant: James Chegwidden
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Alexander Wayne Blackman, R -v- Murder, combat, wounded Taliban fighter, whether manslaughter should have been left to the court, diminished responsibility	[2017] EWCA Crim 190 (Sentencing Remarks on 28 March 2017) 15 March 2017
On 15 September 2011 a badly wounded insurgent was killed in Helmand Province, Afghanistan, by the appellant, then serving in the Royal Marines. He was in command of a group of the Royal Marines serving as part of the British Armed Forces stationed at Command Post (CP) Omar. Video footage emerged of an incident in which the Appellant shot a wounded Taliban fighter. He was charged with and convicted of murder at his court martial, and sentenced to 10 years imprisonment, which was upheld on appeal to the CMAC. A review of the case by the Criminal Cases Review Commission resulted in a fresh referral to the CMAC, on the basis of (i) Further psychiatric evidence obtained since the court martial which showed that both at the time of the killing and at the time of the court martial, the appellant was suffering from an adjustment disorder, a recognised medical condition. On that basis, there was available to the appellant the partial defence of diminished responsibility so that his conviction for murder should be quashed and either a conviction for manslaughter by reason of diminished responsibility should be substituted or a retrial ordered. (ii) The Judge Advocate General had failed to leave the verdict of unlawful act manslaughter for consideration by the Board. (iii) Possible incompetence by the former defence team (in particular in relation to its failure properly to investigate the appellant's mental health and so discover the potential partial defence). The appellant sought to add further grounds on which the CCRC had declined to make a reference: (i) The partial defence of loss of control. (ii) What was said to be improper cross-examination of the appellant by the then leading counsel for the prosecution which should have been stopped. (iii) Fresh evidence of a pathologist in relation to the deceased insurgent's apparent condition when he was shot. HELD: The adjustment disorder had put the appellant in the state of mind to kill, but the fact that he acted with apparent careful thought as to how to set about the killing had to be seen within the overarching framework of the disorder which had substantially impaired his ability to form a rational judgement and that substantially impaired his ability to exercise self-control. A verdict of manslaughter by reason of diminished responsibility was substituted. On 28 March 2017 the court sentenced him to 7 years imprisonment and to be dismissed the service. Coram: The Lord Chief Justice Of England And Wales, The President Of The Queen's Bench Division, The Vice President Of The Court Of Appeal Criminal Division, Mr Justice Openshaw, Mr Justice Sweeney Appellant: Jonathan Goldberg QC, J Israel and S Kong. Respondent: Richard Whittam QC and Katherine Hardcastle
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GHT, R -v- Outraging public decency, act of fellatio, "No Case to Answer", Intoxication of victim, Alcohol consumed, credibility, role of prosecutor	[2010] 19th May 2010
The matter charged, of outraging public decency, arose out of a visit to Jay's bar in Herford, West Germany on the night of 24th/25th January 2009. The Crown's entire case rested upon the evidence of a drunken private. Her evidence was that she went to the bar at a time she could not recall, although she indicated later it was probably 11 o'clock. Before she went she had drunk five or six vodkas and Coke. She then carried on drinking at the bar and dancing until about 3.00 am. Plainly by that time she must have been in a very advanced state of drunkenness. HELD: the witness concerned was obviously very, very drunk, there were a number of other people in the bar who had seen nothing and she had given inconsistent evidence. The submission that was made at the end of the prosecution case of "No Case to Answer" should not have been opposed by the Crown. The appeal was allowed and the sentence quashed. Coram: Lord Justice Thomas, Mr Justice Openshaw, Mr Justice Macduff; Appellant: Mr J Wing. Crown: Mr D Richards
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Knott, R -v- Disobedience to Lawful Command, disobeying a lawful command, impeding lawful arrest, words not understood as a command	[2000] 10 April 2000
Found guilty by District Court-Martial held at Rheindahlen of one charge of disobeying a lawful command contrary to 34 of the Army Act 1955. He was fined £750 and ordered to be severely reprimanded. He was the Corporal in charge of the accommodation block, when Military Police, accompanied by a Staff Sergeant acting as the Orderly Officer and an Orderly Sergeant went to arrest a soldier in his accommodation block at Rheindahlen, who was resisting arrest violently. He was generally encouraging the soldier and making things difficult for those who were trying to arrest him. The Orderly Officer gave the applicant a lawful command to go to bed. The applicant wilfully disobeyed that order. The applicant's case was that he had heard no such order. HELD: There was a straight-forward conflict of evidence. Having heard all the witnesses, the court was perfectly entitled to be sure that the applicant had disobeyed a lawful order, even if that order had been somewhat crudely expressed. Application refused. Coram: The Vice President Lord Justice Rose, Mr Justice Sullivan and Mr Justice Silber; Counsel: Non-Counsel Application.
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*Benavent Díaz -v-* Spain Summary Dealing, article 5 (deprivation of liberty), article 6 (fair trial), validity of reservation to ECHR**	[2017] (Application 46479/10) (In French) 23 February 2017; Court (Third Section
Dealt with summarily in on 22 February 2006 by his Commanding officer for absence from his place of duty while on an operational tour in Bosnia. Sentenced to 6 days arrest (to be spent in his accommodation) at Camp Butmir in Bosnia and Herzegovina, while being required to participate during his regular working hours in the activities of his unit. This was a minor punishment under Basic Law No. 8/1998 of 2 December 1998 concerning the disciplinary regime of the armed forces ("Organic Law No. 8/1998"). He complained that the the reservation made by Spain in 1979, could not be in accordance with Organic Law No. 8/1998, as Spain had informed the Council of Europe of the entry into force of this Act only on 23 May 2007, after he had served the punishment. His appeal to the Madrid District Court was unsuccessful. The Court considered that the reservation made by Spain was applicable to the present case, as it had remained in force without interruption since 1979, despite the fact that the Spanish authorities had not informed the Council of Europe of the legislative change in 1998 (corresponding to the entry into force of the Act No. 8/1998) that on 23 May 2007. His further appeal to the Court of Cassation was also dismissed. HELD: Only laws "in force" at the time of ratification may be the subject of a reservation. The question which remained to be decided was whether the reservation remained suspended without effects until it was updated or, on the contrary, remained in force as long as the Court did not declare the new law incompatible with the Treaty. The Court reiterated that, in order to be valid, a reservation must meet the following conditions: (1) it must be issued when the Convention or its Protocols are signed or ratified; (2) it must relate to a particular provision of the Convention; (3) it must relate to specific laws in force at the time of ratification; (4) it must not be of a general nature; (5) it must contain a brief statement of the law concerned. The Court, unanimously, declared the complaint inadmissible. Coram: Helena Jäderblom, president, Helen Keller, Branko Lubarda, Pere Pastor Vilanova, Alena Polácková, Georgios A. Serghides, judges, Blanca Lozano Cutanda, ad hoc judge; Applicant: Mr Casado Sierra and Mr D. Flores González; Spanish Government: R.-A. León Cavero, State Counsel and Head of the Legal Department of Human Rights at the Ministry of Justice.
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Belhaj and another (Respondents) -v- Straw and others (Appellants) Rahmatullah (No 1) (Respondent) -v- Ministry of Defence and another (Appellants) Torture, complicity, rendition, state immunity	[2017] UKSC 3 17 January 2017
Each respondent alleged complicity by MI6 agents in their detention and mistreatment by agents of third party states. The issues before the Court were whether, the claims of UK complicity for unlawful detention and mistreatment overseas at the hands of foreign state officials were properly triable in the English courts. HELD: Government's appeals were unanimously dismissed. To have held otherise would have meant the appellants could not have been sued anywhere for their alleged complicity in such torts, since they would be entitled to invoke state immunity in any foreign jurisdiction. Coram: Lord Neuberger (President), Lady Hale (Deputy President), Lord Mance, Lord Clarke, Lord Wilson, Lord Sumption, Lord Hughes; Appellants (Straw & Others): Rory Phillips QC, Sam Wordsworth QC, Karen Steyn QC, Sean Aughey; Respondents (Belhaj and another): Richard Hermer QC, Ben Jaffey, Maria Roche; Appellants (Ministry of Defence and another): James Eadie QC, Karen Steyn QC, Melanie Cumberland Respondent (Rahmatullah): Phillippa Kaufmann QC, Edward Craven; Richard Hermer QC, Nikolaus Grubeck, Maria Roche; Interveners (UN Special Rapporteur on Torture and another): Nathalie Lieven QC, Ravi Mehta, Shane Sibbel; Interveners: Martin Chamberlain QC, Oliver Jones, Zahra Al-Rikabi
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Rahmatullah (No 2) -v- Ministry of Defence Mohammed -v- Ministry of Defence UK armed forces, Detention in non-international armed conflict (NIAC), transferring prisoners to ally, Crown act of state, liability in tort, ECHR, article 3	[2017] UKSC 1 17 January 2017
The Appeals concerned the nature and content of the doctrine of Crown act of state. Respondents claimed to have been wrongfully detained or mistreated by UK or US forces in the course of the conflicts in Iraq and Afghanistan. Insofar as the proceedings include claims based on the Iraqi or Afghan law of tort, the Government (along with other defences) raised the doctrine of Crown act of state. HELD: The UKSC unanimously allowed the Government's appeals. The principle that there is no general defence of state necessity to a claim of wrongdoing by state officials has been established since the eighteenth century, save for the exception in the case of acts committed abroad against a foreigner which were authorised or ratified by the Crown. But the doctrine must be narrowly confined to a class of acts which involve an exercise of sovereign power, inherently governmental in nature, committed abroad, with the prior authority or subsequent ratification of the Crown, in the conduct of foreign relations of the Crown. In proceedings in tort governed by foreign law, the Government may rely on the doctrine of Crown act of state to preclude the court passing judgment on the claim if the circumstances are such as defined by this judgment. Per Lady Hale, at §32:"...if act of state is a defence to the use of lethal force in the conduct of military operations abroad, it must also be a defence to the capture and detention of persons on imperative grounds of security in the conduct of such operations. It makes no sense to permit killing but not capture and detention, the military then being left with the invidious choice between killing the enemy or letting him go." [More background in the summary for members]. Coram: Lord Neuberger, President; Lady Hale, Deputy President; Lord Mance; Lord Clarke; Lord Wilson; Lord Sumption; Lord Hughes; Appellant (Rahmatullah): James Eadie QC, Karen Steyn QC, Julian Blake; Appellant (Mohammed) : James Eadie QC, Sam Wordsworth QC, Karen Steyn QC, Julian Blake, Sean Aughey; Respondents (Rahmatullah): Richard Hermer QC, Nikolaus Grubeck, Maria Roche; Respondents (Mohammed): Richard Hermer QC, Ben Jaffey, Nikolaus Grubeck;
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Hanley, R -v- Appeal against sentence, Theft, dismissal, imprisonment, position of trust, accounting deficiency, Newton hearing, basis of plea, guilty plea, financial loss, loss of pension	[2001] CMAC, 25 January 2001
At a District Court Martial held at Bulford the appellant pleaded guilty to three offences of theft. He was the regimental accountant with the First Battalion The Green Howards serving in Osnabruck, and as such he was responsible for the maintenance of the unit's Central Bank Account. On the day of the court martial the appellant's advisers produced a basis upon which he was prepared to plead guilty, in which he stated he always intended to repay these monies to the unit accounts. Sentenced to be imprisoned for 120 days, to be dismissed from HM Service and to be reduced to the ranks. He argued before the CMAC that he would suffer substantial financial loss. HELD: The CMAC emphasised that this case turned upon its particular facts. Sentence of imprisonment and dismissal were quashed. A substituted sentence of detention for a period of 90 days was imposed. Coram: Mantell, LJ, Owen, J and Sir Oliver Popplewell Appellant: JD Richards Amicus Curiae: JW Mason
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Simm & Tennet, R -v- Appeal Against Sentence, Mistreatment of a subordinate, Initiation Ceremony, bullying, depravity and humiliation	[2016] 04/08/2016
LCpl Simm and LCpl Tennet were charged before a court martial with an offence contrary to section 22(1) of the Armed Forces Act 2006 of illtreatment of a subordinate. They had subjected approximately 25 newly joining members of the Commandos to 40 minutes of depravity and naked humiliation. At trial, Simm pleaded guilty. Tennet disputed the charge, but the court martial found it proved. On 16 May 2016 the court martial with Assistant Judge Advocate General Judge Hill sentenced Simm to 8 months' service detention and Tennet to 11 months 2 weeks' service detention. Simm appealed against sentence with the permission of the single judge. Tennet's application for permission to appeal against sentence has been referred to the Full Court by the Registrar. HELD: Appeal against sentence dismissed in each case. Coram: Lord Justice Treacy, Mr Justice Nicol, Mr Justice Supperstone; Appellant Simm: Mr J Bruce; Applicant Tennet: Mr C Bradshaw Crown: Capt A Towler
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Kontic and Others -v- Ministry of Defence Kosovo, ECHR, Jurisdiction, Attribution, UN Mandate, Geneva Conventions, the 1992 UN Declaration for the Protection of all Persons from Enforced Disappearances, Private International Law (Miscellaneous Provisions) Act 1995. Immunity from local jurisdiction	[2016] EWHC 2034 (QB) 04/08/2016
Claims arose from the dangerous and chaotic period which followed the deployment of the international military coalition known as "KFOR" into Kosovo, in June 1999. The three Claimants are the widows of Serbs abducted or murdered in or near Pristina, Kosovo, between 16 June and 5 July 1999. They alleged that British forces "failed to protect their family members or properly investigate [the killings] and to date the perpetrators remain at large". UNSCR 1244 was passed on on 10 June 1999, authorising KFOR "deployment in Kosovo, under United Nations auspices, of international civil and security presences" and setting out the responsibilities of the international security presence to be deployed and acting in Kosovo. HELD: Citing the Grand Chamber decision in the case of Behrami & Saramati v France (Application no. 71412/01), the court determined the matter of attribution and decided that the acts and omissions of British forces were attributable to the United Nations and not to the British government. Effective Control of the Area: the court rejected the claimant submissions that jurisdiction here can arise from the supposed effective control of the central MNB of Kosovo at the relevant period in the sense of such a degree of control so as to be in a position effectively to guarantee the gamut of convention rights. It is absurd to argue that KFOR was, or could be expected to be, in effective control of central Kosovo within a matter of days of the military takeover pursuant to the MTA. Effective control of an area as the foundation for an extension of the territorial jurisdiction of the European Convention, cannot arise from the fact that the forces of a Member State are the only significant force in an area. State Agent Authority and Control: In the instant cases, there was never any physical control by the Defendant of the Claimants' relatives. To found an extension of the Convention jurisdiction on the basis that initial investigatory steps were taken by military police officers attached to KFOR would represent a radical extension of the existing approach of the Strasbourg Court. Having concluded that there was no jurisdiction under the Convention, it follows that no "operational protective duty" arose under Articles 2 or 3. Moreover, in the conditions agreed to be prevailing in Kosovo in the relevant weeks in June and July 1999, it seems inconceivable that such a general duty could arise for an international force brought in to attempt stabilisation in such circumstances. Investigative duties can and do arise where a Member State carries the full range of duties commensurate with a territorial jurisdiction or where effective control of an area is established. Where jurisdiction is based on "physical control" or "SAA", then it is clear that an investigative duty arises in respect of the deaths (or Article 3 breaches, were they to arise) of those individuals concerned. In such circumstances there must be a trigger for an investigative obligation to arise. No freestanding investigative obligation arose under the Convention. It seems inconceivable that a duty to investigate arising during the short period when KFOR represented authority in Kosovo could be thought open-ended in time. No duties were owed under Articles 8 and 13. Application of HRA: In the course of Re McKerr [2004] UKHL 12, the House of Lords had clearly decided that the Human Rights Act could not be retrospective in its effect. It does not permit a claimant to bring a claim for breach of a Convention obligation before [the Act] came into force. McKerr remains good law and binding authority. Customary international law: Parliament, not the Executive, makes the law. Customary international law may be regarded as "not a part but … one of the sources of English law...customary international law is applicable in the English Courts only where the Constitution permits". The Human Rights Act 2000 does not apply to the deaths and disappearances which are the subject of this complaint. Immunity conferred on the Defendant under UN Security Council Resolution 1244 and set out in the Joint Declaration and UNMIK Regulation 2000/47: These documents provide that "KFOR personnel shall be subject to the exclusive jurisdiction of their respective sending state." However, the court found that the actions of KFOR fall to be attributed at law to the United Nations. That is sufficient to avoid liability on the part of the Defendant. The KFOR compensation scheme: There was no evidence before the court capable of establishing the scheme as being a practical opportunity for individuals to gain compensation. However, the court rejected any claim of abuse of process based on the compensation scheme. Immunity from action for direct liability, as opposed to vicarious liability: On balance the court found that such an immunity was established. That was clearly the intention in the agreement and regulation. Coram: Mr Justice Irwin; Claimants: Kirsty Brimelow QC, Catherine Meredith and Alex Gask (instructed by Savic & Co); Defendant: James Eadie QC, Brendan McGurk and Michelle Butler (instructed by The Government Legal Department).
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Mehida Mustafic-Mujic and others -v- Netherlands Muhamed Nuhanovic, ECHR, jurisdiction, effective control, Srebrenica massacre, Geneva Conventions, criminal investigation, effective investigation, decision not to prosecute, Jaloud	(2016) (application no. 49037/15) 30 August 2016
The applicants were relatives of deceased civilians, murdered by Bosnian Serb forces under the command of General Ratko Mladic, at Srebenica on or shortly after 13 July 1995. The complaint was that the Dutchbat commander and officers failed to take proper steps to protect them and that, subsequently, the Dutch authorities failed to investigate properly, in accordance with their obligation under Art 2 ECHR, their alleged complicity in genocide or alternatively in war crimes. After detailed consideration of the case, the public prosecutor decided not to take proceedings against the officers. The applicants then complained that the time taken for the public prosecutor to come to a decision had been excessive; that the investigation had been flawed in that it had been limited to information already available to the public; that the applicants had not been sufficiently involved, and in particular that they had not been heard; that the opinion of the reflection chamber – which in their submission favoured prosecution – had been ignored; that the decision not to prosecute was politically motivated; and that substantive criminal law had been misapplied. This complaint was dismissed by the Court of Appeal. A further submission was made by the Prosecutor that the Netherlands lacked jurisdiction within the meaning of Article 1 of the Convention, because as of 11 July 1995 "effective control" of the Srebrenica enclave had been exercised by the VRS not Netherlands armed forces. HELD: Having regard to the proceedings as a whole, "it cannot be said that the domestic authorities have failed to discharge the procedural obligation under Article 2 of the Convention to conduct an effective investigation ... which was capable of leading to the establishment of the facts, ... and of identifying and – if appropriate – punishing those responsible" (see Armani Da Silva, § 286). The application was manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. The Court unanimously Declared the application inadmissible. Coram: Luis Lopez Guerra, President, Helena Jäderblom, Johannes Silvis, Branko Lubarda, Pere Pastor Vilanova, Alena Polackova, Georgios A. Serghides, judges, and Fatos Araci, Deputy Section Registrar; Applicants: Ms L. Zegveld and Mr T. Kodrzycki
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British Gurkha Welfare Society and Others -v- United Kingdom ECHR, Article 14, Article 1 of Protocol No. 1 (protection of property), Gurkha veterans, pension rights, Tripartite Agreement, Accompanied service,	(2016) (application no. 44818/11) 15 September 2016
The Court was satisfied that Gurkha soldiers had been treated differently from other soldiers in the British Army as concerned their entitlement to a pension and that the difference in treatment could be regarded as less favourable. Furthermore, in view of the changes to the Gurkhas' situation, the Court accepted that by 2007 – the date of the offer to transfer – Gurkha soldiers had been in a similar situation to other soldiers in the British Army. However, the Court considered that any difference in treatment on grounds of nationality had been objectively and reasonably justified. In particular, the cut-off point, 1 July 1997, for different treatment of accrued pension had not been arbitrary as it represented the transfer of the Gurkhas' home base to the UK and therefore the point in time from which the Gurkhas had started forming ties with the country. Likewise, the Court considered that any difference in treatment based on age had also been objectively and reasonably justified. {This summary extracted from the Court's Press Release). Coram: Mirjana Lazarova Trajkovska, President, Ledi Bianku, Linos-Alexandre Sicilianos, Paul Mahoney, Ales Pejchal, Robert Spano, Pauliine Koskelo, judges, and Abel Campos, Section Registrar; Applicants: Mr E. Cooper of Slater and Gordon (UK) LLP; UK Government : Ms A. McLeod of the Foreign and Commonwealth Office.
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Al-Saadoon & Ors-v-Secretary Of State For Defence; Rahmatullah & Anr-v-Secretary Of State For Defence ECHR, Iraq, Extra-territorial jurisdiction, ECHR, has Al-Skeini overruled Bankovic?, Hassan, Jaloud, Soering, international humanitarian law, IHL	[2016] EWCA Civ 811 9 September 2016, CMAC
The extent to which the European Convention on Human Rights ("ECHR") applies to the conduct of British forces in Iraq remains highly controversial. There are two particular areas of controversy. 1. The question of the scope of application of the Convention and when individuals are to be considered to be within the "jurisdiction" of a contracting State within Article 1 of the Convention. The answer to the question whether the jurisdiction issue in Bankovic would be decided in the same way following the decision in Al-Skeini will depend on the precise scope of the exceptions acknowledged in Al-Skeini. 2. The extent to which there is a duty on the United Kingdom to investigate alleged violations of the ECHR rights of Iraqi civilians who were within the jurisdiction of the United Kingdom. In previous High Court proceedings, Leggatt J identified 4 issues, which the CA dealt with: The scope of application of the Convention. It is clear that Al-Skeini must now be taken as the starting point for any consideration of the extra-territorial application of the Convention and in particular the Grand Chamber's approval of the decision in Issa v Turkey, represents a major extension of jurisdiction beyond the principles stated in Bankovic. The answer to the question whether the jurisdiction issue in Bankovic would be decided in the same way following the decision in Al-Skeini will depend on the precise scope of the exceptions acknowledged in Al-Skeini. In relation to the concept of "effective control" over an area, before this exceptional ground of jurisdiction can apply, the contracting state must have a degree of control over the area in question which enables it to secure the full range of ECHR rights to its occupants. This is an important limitation on this exception. It was accepted that UK was far from being in effective control of the south eastern area which it occupied and it was accepted that this exception can have no application to the present case. Iraq is not a Convention state, so the principle of espace juridique can have no application in the circumstances of the present case. This left the Court concerned solely with the exceptional category described by the Grand Chamber in Al-Skeini as "state agent authority and control". It is now clear that whenever the state through its agents exercises control and authority over an individual, and thus jurisdiction, the state is under an obligation to secure to that individual the rights and freedoms under Article 1 of the Convention that are relevant to the situation of that individual. The matter has now been placed beyond doubt by the Grand Chamber in Hassan. Moreover, it was immaterial whether the basis of effective control was lawful or unlawful. The question whether the United Kingdom is exercising authority and control by virtue of exercising public powers normally exercised by the government of Iraq will depend on the facts of each case. There is no reason in principle why the public powers exception should not apply during the post-occupation period. The British armed forces, as part of the multi-national force, remained in Iraq at the request of the Iraqi government in order to perform security functions. They were "through the consent, invitation or acquiescence" of the government of Iraq exercising some of the public powers normally to be exercised by that government. The court did not accept that "the effect of Al-Skeini is to establish a principle of extra-territorial jurisdiction under Article 1 to the effect that whenever and wherever a state which is a contracting party to the Convention uses physical force it must do so in a way that does not violate Convention rights...[T]he intention of the Strasbourg court was to require that there be an element of control of the individual prior to the use of lethal force". See §69 (our emphasis). If the logical consequence of the principle stated in Al-Skeini is that any use of extra-territorial violence is within the acting state's jurisdiction for this purpose, that is a conclusion which must be drawn by the Strasbourg court itself and not by a national court. See §70. The extent to which there is an investigative obligation in respect of handover cases within Article 3 ECHR. Article 3 imposes three types of duty on a state: not to subject anyone within its jurisdiction to torture or to inhuman or degrading treatment or punishment. Secondly it imposes a positive obligation to take steps to protect an individual within its jurisdiction who is exposed to a real and imminent risk of serious harm of which the State authorities are aware. Thirdly, it has become established that Article 3 gives rise to an obligation not to send an individual to another State where there are substantial grounds for believing that he would face a real risk of being subjected to torture or other prohibited treatment. The cited caselaw did not support the proposition that an investigative obligation arises in all handover cases where there is an arguable breach of the Soering principle. Moreover, there was no reason in principle why such a broad investigative obligation should be considered necessary in order to give effect to the prohibitions imposed by Article 3. If in any handover case there is an arguable claim that the state which transferred the detainee is responsible for violating Article 3 through complicity in torture or other serious mistreatment inflicted by agents of the receiving state, an investigative duty would arise. What is required of an inquiry under Article 3 is likely to vary considerably from case to case. The extent to which there is an investigative obligation in respect of cases within Article 5 ECHR. A duty to investigate does not arise in all cases where there is an arguable violation of Article 5, save where there is an arguable claim that a person within the jurisdiction of a Contracting State has been the subject of enforced disappearance. Where there is an arguable claim that a person has been taken into state custody and has not been seen since, there is a duty on the state under Article 5 to investigate what has happened to that person. In such a case, there is a duty of investigation with the wider purpose of leading to the identification and punishment of those responsible for the disappearance. This investigative obligation arises where agents of the State have assumed control over an individual it is incumbent on the authorities to account for his or her whereabouts. The question whether Article 5 ECHR is modified or displaced by international humanitarian law during an international armed conflict, was answered in the light of the decision in Hassan, which said the ECHR must be interpreted in harmony with other rules of international law of which it forms part. Even in situations of armed conflict the safeguards under the Convention continue to apply, albeit interpreted against the background of the provisions of international humanitarian law. Detention must comply with the rules of international humanitarian law and, most importantly, it should be in keeping with the fundamental purpose of Article 5(1) which is to protect the individual from arbitrariness. In a situation of international armed conflict Article 5 ECHR and the provisions of international humanitarian law will co-exist and will both apply to issues of detention. Because the provisions of these two regimes are very different, no doubt reflecting the different fields in which they were originally intended to operate and the different purposes they were originally intended to achieve, it is necessary to effect an accommodation between the two. In an international armed conflict a system of judicial control over detention may not always be required; The impact, if any, on investigative duties under Articles 2 and 3 of the United Kingdom's obligations under the United Nations Convention Against Torture ("UNCAT"). UK's relevant obligations under UNCAT were applicable throughout the period of UK operations in Iraq in places where persons captured or arrested by British forces were detained. Neither on the basis of its effect as a treaty nor on the basis of customary international law is it tenable that the provisions of UNCAT give rise to domestically enforceable legal rights. Article 12 UNCAT does not appear to impose a broader duty of investigation than Article 3 ECHR. Secondly, the provisions of ECHR must be interpreted in harmony with rules of international law of which it forms part (Al-Adsani v United Kingdom at [55]) and therefore the development of Article 3 ECHR may in certain circumstances be influenced by UNCAT. Thirdly, when there is a duty to investigate an allegation of torture or other serious ill-treatment under Article 3 ECHR the circumstances to be investigated will often include the instructions, training and supervision given to those persons to whom the custody of the individual was entrusted. Coram: Lady Justice Arden; Lord Justice Tomlinson; Lord Justice Lloyd Jones; Appellants (Saadoon): Michael Fordham QC, Dan Squires QC, Jason Pobjoy and Flora Robertson (instructed by Public Interest Lawyers Limited); Appellant (Rahmatullah): Phillippa Kaufmann QC and Adam Straw (instructed by Leigh Day Solicitors) Respondent: James Eadie QC, Karen Steyn QC and Kate Grange
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R-v-Ballinger Independence and impartiality, Composition of naval court martial hearing, Uniformed judge advocate, Preclusion of leave to appeal out of time - European Convention on Human Rights, ECHR art 6., extension of time	[2005] EWCA 27 April 2005, CMAC
Before Captain Fraser, sitting as Judge Advocate, the appellant was found guilty of a charge of indecent assault on a female. He was sentenced to 4 months detention, dismissed from the Service, disrated to Able Seaman, deprived of 3 Good Conduct Badges and ordered to suffer the consequential penalties involved. His petition against sentence to the Reviewing Authority was refused. Leave to appeal was then refused by the single judge. On 28 July 2004 he applied for leave to appeal out of time, following decisions by the European Court of Human Rights in Grieves (16 December 2003) and the decision of the CMAC in Dundon [2004]. HELD: The delay in the present case was substantial. The longer the delay the more difficult it is for there to be a re-trial. A line has to be drawn somewhere. Grieves and Dundon drew attention to the unsatisfactory nature of certain aspects of naval courts-martial in particular in relation to the Judge Advocate. Fortunately these deficiencies have now been remedied. An applicant seeking an extension of time for leave to appeal in circumstances such as those in the present case has to show more than that there has been a breach of Article 6 and that in consequence his conviction is unsafe; he must also show that he has suffered a substantial injury or injustice. This, the applicant has manifestly failed to do. The CMAC refused to grant an extension of time. Coram: Scott Baker LJ, Poole J and Sir Michael Wright; Defendant: Nicholas Lewin; Crown: Philip Havers QC and Timothy Otty.
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Maitland & another, R -v- Evidence, Admissibility, Possession with intent to supply Class A drugs, MDMA, Whether previous unsuccessful test purchase involving defendant relevant to issues in trial.	[2005] CMAC, 2 August 2005
Military police searched the room occupied by the first defendant, whereupon they found 397 ecstasy tablets, and amphetamine. Fourteen ecstasy tablets were found in the first defendant's car. The second defendant pleaded guilty before a court-martial to one charge of possession with intent to supply MDMA, a Class A drug, and possession of amphetamine, a Class B drug, on the basis that she had supplied those drugs socially to the first defendant. She was sentenced to 12 months' service detention, and was dismissed from HM Service. The first defendant was charged with, inter alia, possession with intent to supply and was tried before a court-martial. The prosecution case against the first defendant was that he was a commercial dealer, and that the drugs had not been for his personal use. They applied to adduce evidence of a previous incident involving a 'test purchase', which had occurred approximately two years prior to the trial. A special verdict was recorded, namely that the jury had found that the nature of the supply had been wider than that simply social supply to the second defendant and a friend. Sentenced to four years and three months' imprisonment, and dismissed with disgrace. HELD: The evidence of the previous test purchase had not been relevant to the issue of the first defendant's intent to supply, and, accordingly, the judge had erred in law in admitting it. Convictions quashed. Re-trial authorised. The sentence imposed on the second defendant was excessive and a period of seven months' service detention substituted. Coram: Keene LJ, Hallett and Goldring JJ First Defendant: Dingle Clark; Second Defendant: Robert Bolton Army Prosecuting Authority: James Mason
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Munro, R -v- Procedure, Direction to board, Criminal damage, Recklessness, Correctness of direction	[2005] Court Martial Appeal Court
Found guilty of two charges: common assault on his then fiancée; and criminal damage. He was fined £200. He appealed the second charge by leave of the single judge. The criminal damage occurred when a passing serviceman's wife saw the argument going on in the Appellant's bedroom and shouted out to the Appellant to leave his fiancée alone, shouting "Get off you coward". At this the Applicant flicked out at the window with his knuckle. As the Appellant hit the window it broke. The Appellant said it was all an accident. The basis of the appeal concerned the judge advocate's summing up on the issue of recklessness, that being the alternative way (the first way being of course intention) that the mens rea of criminal damage is capable of being made out. He had relied upon the old Judicial Studies Board specimen direction on recklessness, which had since been reviewed in the subsequent (May 2004) Judicial Studies Board specimen directions as a result of the House of Lords' decision in R v G and another [2003]. The difference between the two directions is the difference between being aware of the risk and not being aware of the risk. HELD: The conviction on count 2 was quashed. In relation to the sentence, the court did not specify on which of the two charges this fine was to be levied. The justice of this case would be met by substituting for the £200 that he was ordered to pay by way of fine a sum of £150. Coram: Gage LJ, Bodey, Elias JJ Appellant: G Blades Crown: unrepresented
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Holden, R -v- Sentence/dishonesty/theft/obtaining property by deception/conduct to the prejudice of good order and military discipline/Financial Consequences/Pension/Duration of sentence manifestly excessive	[2005] Court Martial Appeal Court
Tried by General Court Martial held at Catterick. The Appellant was platoon sergeant of a training platoon at the Army Foundation College in Harrogate. He was, therefore, in a position of seniority over the young recruits who were present being trained at that college. He organised a bulk purchase of items of military kit from a civilian company on behalf of a number of the recruits and collected the required contributions from them. The company gave him a discount of 20%, which he retained (about £800). That was a charge of theft. In relation to offences of conduct prejudicial to good order and military discipline, these were based on the fact that he obtained sums of money, generally very small sums, from soldiers by falsely and, as his plea indicated, dishonestly representing to them that they had to make payments of one kind or another in respect of barrack damage. Fined £1,000. 6 months detention. Reduced to the ranks, dismissed. HELD: He was the sergeant in a position of responsibility and trust, charged with the care of very young, raw recruits. So any act of dishonesty on his part was a very serious breach of trust and abuse of the position and rank that he held. The Court Martial were fully justified in treating the matter as one of very great seriousness, and to come to the view that there had to be a period of detention in addition to dismissal from the service and reduction to the rank of private. But as a result of these matters he has been dismissed from the service, he has been reduced from the rank of sergeant to that of private, and as a result will suffer a very considerable, life long financial loss. When one looked at this overall sentence, it was not necessary to pass a period of detention as long as six months having regard to the actual sums involved. Appeal allowed only to the extent of varying the sentence of detention from 6 months to 3 months. Coram: Rix LJ, Holman, Calvert-Smith JJ Appellant: S Reevell Crown: J Mason
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Simm, R-v- Appeal, Section 20 Wounding, Excessive Self Defence, Warrant Officer, Reduction in Rank, Financial Consequences	[2005] CMAC, 11 February 2005
WO2 convicted at a GCM (Assistant Judge Advocate General Burn) of one offence of causing grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861, to a SNCO. He was sentenced to be reduced to the rank of Sergeant. The consequence of reduction to the rank of Sergeant meant that the appellant lost his artificer's status. This is a highly prized status in the army, particularly in REME, because of the duties which artificers are called upon to perform. It is a rank which can only be held by someone of the rank of Staff Sergeant or above. It was accepted by the prosecution, and the court martial, that he had acted in "excessive self-defence" in that the victim had struck the first blow. The appellant had an exemplary record. HELD: This was a disgraceful episode. Having said that, any financial penalty must be proportionate. Sentence of reduction to the rank of Sergeant was quashed and substituted for it was a sentence of reduction to the rank of Staff Sergeant. Coram: Lord Justice Gage, Mr Justice Nelson, Sir Douglas Brown Appellant: Mr S Reevell Crown: Mr J Mason
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Rowe, R-v- Appeal, theft, dehydration, mens rea, intent	[2016] CMAC, 19 January 2016
The applicant was a warrant officer in the Royal Marines. In September 2014, he went to California for a joint exercise with the US Marine Corps. On 12 September 2014, he spent the day on driver training. It was a hot day. At midday the temperature was 21 degrees Celsius, by 4.00 pm it was 26 degrees and during the evening it increased to 33 degrees. At about 4.00 pm, the applicant went to the Marine Service Exchange, a shop, where he was observed by store detectives who were monitoring CCTV. They saw him take a water bottle, from which he removed and discarded the price tag, which was on a bar code. He then moved to the men's department and was seen to remove some swimming goggles from a shelf and put those in his pocket. He was arrested. The applicant was coherent. He did not request medical intervention nor did he display signs of dehydration. After release from custody he complained of dehydration. He was assessed at the medical centre. A Dr S-S said that the symptoms reported by the applicant were consistent with dehydration, but tests revealed nothing consistent with dehydration. At trial, the prosecution consultant psychiatrist gave evidence that the correct diagnosis was one of psychiatric malingering. For the defence, Surgeon Commander Coetzee gave evidence that the two possibilities were either malingering or a dissociative state. An an academic expert gave evidence about dehydration and hypohydration. R was convicted, severely reprimanded and reduced to the rank of sergeant. The applicant argued that judge should have directed the jury that, since this was a possibility, the applicant thereby lacked the necessary intent to steal. HELD: The court did not consider that any arguable ground was shown in that respect. The board was fully aware that the experts' evidence was that there were two possible findings, about which they disagreed. They had been directed to look at the whole of the evidence. The evidence in this case was extremely strong and the convictions were safe. The application was refused. Coram: Lord Justice Treacy; Mr Justice Haddon-Cave; Mr Justice Garnham Applicant: Mr F Evans QC Crown: Lieutenant Colonel D Phillips AGC(ALS)
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Attorney General's Reference No 32 Of 2015 Appeal, Unduly Lenient Sentence, Sexual activity with a minor, abuse of trust, prosecution indication on sentence, legitimate expectation, Sentencing Guidelines, power of Attorney General, "slip rule", double jeopardy	[2015] CMAC, 3rd June 2015
Tried at British Forces German Military Court Centre before Assistant Judge Advocate General Emma Peters. The offender, a married woman living with her serviceman husband in Germany, pleaded guilty to four charges of committing a criminal offence, contrary to section 42 of the Armed Forces Act 2006, namely, sexual activity with a child, S (aged 13), contrary to section 9(1) of the Sexual offences Act 2003. She was sentenced by the same judge on each charge to run concurrently to a term of two years' imprisonment, suspended for two years, with a specified activity requirement and a supervision requirement for two years. A Sexual offences Prevention order was also made. This was subsequently amended under the "slip rule" to a Sexual Harm Prevention order. Attorney General granted leave pursuant to section 273 of the Armed Forces Act 2006 to refer her sentence to this court as unduly lenient. Background: At a plea and case management hearing defence counsel sought a Goodyear indication of sentence after he had been assured by the prosecutor that the case would not be referred to the Attorney if the trial court imposed a suspended sentence. The trial judge declined to give an indication and there then followed an agreed basis of plea, which went behind a number of complaints made by S. HELD: Irrespective of the observations of the prosecutor, the defendant was under no illusion about the power of the Attorney. Section 259 of the AFA 2006 provides that, in sentencing an offender for a service offence (ie an offence under Part 1 of AFA 2006, which includes a s42 criminal offence - see ibid s. 50), the court must have regard to any guidelines that are relevant to the offender's case. The very least sentence that could be passed, even allowing for all these features, was one of three years' imprisonment on each count to run concurrently. Coram: President Of The Queens Bench Division (Sir Brian Leveson), Mr Justice Kenneth Parker, and Mr Justice Stewart For the Attorney General: Mr Oliver Glasgow For the Offender: Mr Peter Glenser
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Mayende, Lee, Muir and Field, R -v-Mayende, Lee, Muir and Field Kidnapping, Sexual Assault, ABH, Theft, Non-Disclosure, Failure to record information, Identification, alibi, DNA samples, fresh evidence, out of court Board Member	[2015] BAILII Link
On 24 October 2013 at the Military Court Centre, Sennelager, Germany before Judge Hunter (Vice Judge Advocate General) and a military board, the appellants were convicted of kidnapping, contrary to common law; charge 2, sexual assault contrary to section 3(1) Sexual Offences Act 2003; charge 3, theft (as an alternative to robbery) contrary to section 1 Theft Act 1968; and charge 4, assault occasioning actual bodily harm contrary to section 47 Offences Against the Person Act 1861. The total sentence on Mayende and Lee was 8 years' imprisonment and on Muir and Field, 7 years' imprisonment. Lifetime non-disclosure order under the Sexual Offences (Amendment) Act 1992. The four appellants were in a kebab shop in Paderborn, Germany. Mayende, who was the only black man in the group, approached the victim and accused the victim of not showing him respect. They took the complainant to a nearby alleyway where he was assaulted, sexually and otherwise. It was accepted by the prosecution that there were failings as regards disclosure, and the single judge gave leave to appeal on this basis. Mayende was picked out during a video identification procedure. He did not give evidence at trial and relied on the defence of alibi. Lee had pleaded to ABH. Muir admitted being present at the scene but his defence involved a denial of involvement in any of these events. Field saw an incident in which Mayende gave the victim a "jokey" slap. HELD: Appeals against conviction and sentence were dismissed. Coram: The Right Honourable Lord Justice Fulford; The Honourable Mr Justice Flaux; and The Honourable Mrs Justice Thirlwall DBE Crown: Lt. Colonel W. Peters; Appellant Mayende: Mr. Graham Wallis; Appellants Lee,Muir and Field: Ms. Fiona Edington.
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Stratton, R (on the Application of Stratton)-v-Chief Constable of Thames Valley Police Police Caution, Effect of, admission of offence, conviction, recordable, judicial review	[2013]
S challenged a caution administered to her on behalf of the defendant on 29 January 2008 on the basis that she had not admitted the commission of an offence and that she was not warned of the adverse consequences to her. It was not until December 2010 that she discovered the serious adverse consequences to her in relation to her employment of the caution. She then spent several months thereafter attempting to get the caution withdrawn in correspondence with the defendant Police. HELD: The form used by the Police, far from spelling out the consequences, implied that the only consequence was use in other court proceedings. In circumstances where she was unrepresented and the acceptance of the caution given her occupation as a nanny were so serious for her, the court found she did not give her informed consent to the caution. [This case may have relevance to the issue of Summary Dealing and the resulting PNC entry, although the unreported case of Deacon sought to distinguish it]. Coram: President of the Queen's Bench Division and Mr Justice Cranston Claimant: Stuart Biggs; Defendant: Charlotte Ventham.
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Aitken, Bennet and Barson, R-v- Section 20 Grievous Bodily Harm, Meaning of "unlawfullly", Submissions of Law, Joint Enterprise, Procedure, Whether Full Court Should Hear Legal Argument, Whether Judge Advocate Empowered to Sit Alone to Hear Submissions of Law	[1992] CMAC, May 5, 7, 22, 1992
There was a party at an R.A.F. station where the appellants were stationed to celebrate various postings at the end of a formal flying training course. A considerable quantity of alcohol was consumed and a fair amount of horseplay ensued in which all participated. As a result of one such incident in which the three appellants were involved one of the officers had white spirit poured on to his flying suit, he resisted weakly because of the amount he had drunk. The fuel ignited rapidly, and although the appellants took rapid action to douse the flames, the officer was severely burned. The appellants were charged with inflicting grievous bodily harm contrary to section 20 of the Offences against the Person Act 1861. At their court-martial, the issue being whether the injuries had been inflicted unlawfully and maliciously the judge advocate sought skeleton arguments on behalf of the appellants from their counsel, who informed him that if those submissions were not to form the basis of his direction to the court on the law they wished to make further submissions. The judge advocate did not take issue with the submissions and did not avail himself of further argument; yet he did not direct the court in accordance with certain of the defence submissions on the law. The appellants were convicted and appealed, inter alia, on the ground that the judge advocate had misdirected the court as to the meaning of the word "unlawfully"; that apart from circumstances set out in rule 81(1) of the Rules of Procedure (Air Force) 1972, as amended, and when matters of corroboration were argued, it was the practice for the full court to hear all submissions on the law; rule 81(1) as it stood did not permit the president to direct otherwise, because the court was not bound to accept the advice of the judge advocate. HELD: Appeals allowed. Coram: Lord Justice Farquharson, Mr. Justice Alliott and Mr. Justice Cazalet Appellant: Neil Butterfield, Q.C. and Michael Brabin Crown: Michael Hucker
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