The European Commission

During this case it was held that a court-martial was not sufficiently separated from the military chain of command to be considered an impartial tribunal for the purposes of Article 6. 1. Previous to these cases there was a Convening Officer who held a pivotal position in court-martial proceedings. The Convening Officer, who was a non-legally qualified officer, was responsible for the decision to prosecute, and the charges to be preferred, the appointment of the prosecutor and the executive control of the prosecution.

He was also responsible for selecting the president and members of the court, who might come under his authority in the military chain of command, or who might be on his own staff. Once the convening officer and the members of his court decided the outcome of the case, nothing was final until the confirming officer confirmed that it was fair. The confirming officer was also a not legally qualified, although he acted on advice from the Office of the Judge Advocate General.

After the cases there were some major structural changes to try and increase impartiality, these changes were already written into the Armed Forces Act 1996 but did not come into effect until April 1 1997. This Act abolished the role of the convening officer and split his role into three separate bodies which were, the Prosecuting Authority, the Court-Martial Administration Officer, and the Reviewing Authority. Each of these had separate personnel working for them to increase the impartiality. The Confirming officer has also been abolished and has been replaced by an automatic review.

In addition to this the Army Legal Services has been split into three separate branches dealing with, prosecutions, legal advice, and the provision of legal aid. 7 Responsibility for prosecutions now rests with the Army Prosecuting Authority, The Army Prosecuting Authority himself is the Director Army Legal Services who is appointed by Her Majesty the Queen under section 83A of the Army Act 1955. 8 In the case of an alleged offence committed within a military context, the matter will initially be investigated by the Royal Military Police.

The papers will then be passed to the suspect's Commanding Officer. he Commanding Officer is encouraged, but not bound, to seek advice from the Advisory Branch, which is now wholly separate from the Prosecuting Branch, and is headed by a Brigadier, in an advisory role. Once he has taken this advice he then has to make one of four decisions, either to, (a) no offence has been committed; (b) the matter is one for summary disposal; (c) the matter may be dealt with either summarily or by court-martial.

For example, a charge of assault occasioning actual bodily harm, to be tried by court-martial, would be appropriate, but there is no legal objection to dealing with the matter summarily as a common assault; (d) the offence is one to be referred to higher authority for consideration for trial by court-martial. The Commanding Officer then submits the case papers to higher authority within the military chain of command, normally to Brigade level. He would then also take advice from the advisory branch.

He must then decide if there is a good military reason for the case not to proceed much like the Crown Prosecution Service would do in a civilian case when deciding upon public interest. This leaves the positive test of public/service interest in prosecution to legally qualified persons. There need not have been any charge up until this point just like in a civilian case but if trial by court martial is considered potentially appropriate, he must pass the papers to the Prosecuting Authority.

9 Day-to-day prosecution work is delegated by the Director of Army Legal Services to a Brigadier (Prosecutions), based, to emphasise his separateness from the army chain of command, at RAF Uxbridge. To further emphasise the separateness, under the new system, no officer serving in the Advisory Branch can act as a prosecutor. Previously, the Convening Officer was responsible for setting the date and venue of the court-martial, and appointing the president and members.

This function has now passed to a Courts-Martial Administration Officer (CMAO). In selecting the president and members, the CMAO is required to avoid the chain of command from which the accused comes, and in particular must avoid the Brigade whose Brigade Commander acted as the higher authority. 10 The findings of a court-martial are subject in all cases to automatic review. It is the intention that the findings of a general court-martial will be reviewed by a Major General, those of a district court martial by a Brigadier.

The European Commission in Findlay commented on the lack of transparency in the confirmation and review stages, and this concern has been dealt with under the new Act. 11 As you can see the case of Findlay v UK has had a major impact on military law within the UK even though the European Court of Human Rights never actually held that the procedures were unfair just that there was they were not sufficiently separated from the military chain of command to be considered an impartial tribunal.

Both of these cases have affected Military Law in the UK a great deal and together go a long way to ensuring that Military proceedings have come more inline with the proceedings in civilian life, where there are much more stringent rules that protect people's human rights but still ensure that anyone who has broken the law or rules are dealt with fairly and are given the appropriate sentences.