The European Court of Human

Critically Evaluate, in 3000 words, how the cases of Boyle v United Kingdom ( Application No 55434/00) in the European Court of Human Rights & Findlay v UK ( 1997) 24 EHRR 221 (para 82) have made an impact on Military Law within the UK. When answering this question I must first explain the facts of each case, the decisions that were made during their appeal processes and what effect they had on Military Law within the UK. The first case I will explain is that of Boyle v United Kingdom1.

In this case the defendant, Boyle, who had joined the army in 1990, was serving as a gunner with the 12th Regiment of the Royal Artillery and was stationed in Germany. On 1 November 1999 a woman alleged that she had been raped and on 2 November the applicant was arrested by the service police. The service police interviewed the applicant on 4 November 1999 and it appears that he was assisted by a lieutenant from Army Legal Services.

On that date he also signed a certificate acknowledging that he had been informed of his right to have the assistance of an "accused advisor" during any summary hearing before his commanding officer ("CO"). On 5 November 1999 he was charged by his CO, pursuant to section 70 of the Army Act 1955 with indecent assault contrary to section 14(1) of the Sexual Offences Act 1956. On the 6th of December 1999 the CO referred the case to Higher Authority and remanded the applicant in close arrest.

On 16 November 1999 the applicant was transferred to the Military Correctional Training Centre (MCTC) in the United Kingdom. Twelve "8-day delay" reports were completed during the applicant's pre-trial detention. The reason for detention was that it was considered that he was likely to suborn witnesses and that, given the "nature and prevalence of the alleged offence under investigation" it was "undesirable in the interests of discipline that he should be at large or consort with his comrades.

" The final report dated 7 February 2000 recorded for the first time an additional charge against the applicant pursuant to section 70 of the 1955 Act: rape contrary to section 1(1) of the Sexual Offences Act 1956. Six "16-day arrest" forms were also completed The CO of the MCTC signed these forms and recorded that the applicant had been brought before him to consider any representations the applicant may have had concerning his arrest status and that he had been informed of his right to apply to the military authorities for his release. No representations from the applicant were recorded as having been made.

A Special Report, dated 10 January 2000 and completed by a lieutenant colonel (chief of staff) of Headquarters Land Command, recorded that approval had been given for the continued detention of the applicant on the grounds that he was a habitual absentee and was likely to absent himself again if released. On 14 January 2000 his solicitor requested the military authorities to provide copies of the relevant documentation concerning the applicant's detention. On 1 February 2000 his solicitor sought a review of the applicant's detention by the general officer commanding 4th Division.

He was initially orally informed that the review would take place on 15 February 2000 but was then informed on 16 February 2000 that the review had not taken place. On 18 February 2000 the applicant's representative applied for a writ of habeas corpus to the High Court. 19. On 22 February 2000 the CO of the MCTC released the applicant from close arrest and he was posted to the 47th Regiment Royal Artillery. The defendant was then acquitted of rape.

2 The defendant then went on to argue that in the European Convention on Human Rights (ECtHR) by placing him under close arrest the CO had infringed his right under Art 5, in specific article 5.3 which states, "Everyone arrested or detained … shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial… "3 The defendant's main complaint was that his commanding officer could not constitute a suitable judge or other officer because he was part of the prosecution machinery, because his power to decide on close arrest conflicted with his responsibility for discipline within his command and because he lacked the necessary qualifications or experience.

The ECtHR's ruling that the CO is not an independent or impartial forum not only calls into question the rules surrounding pre-trial detention (as was the case in Boyle) but questions also the general practice of a CO acting as a quasijudicial figure. Since Boyle's detention there has been some changes in the law, the Armed Forces Discipline Act 2000 has amended section 75 of the Army Act 1955 and the Army Custody Rules 2000 which replaced the 1997 Regulations.

These have both brought radical changes to the law, A CO is now allowed to keep a person in custody for a short period of time but he is then required to obtain the consent of a judicial officer to prolong that detention. If the CO is not going to deal with the accused then he must be brought before a court martial before 8 days have passed. If that cannot be done a special report must be submitted by the CO to the higher authority and each 8 days after that. If this has not been done in time then the accused must be released. A person can only be kept in custody if there is good reason for doing so.

The only reason that he can keep the defendant in custody is if by keeping him in custody without charge he is going to preserve evidence related to the offence of to obtain evidence by questioning. He must also make a written record of all his decisions and the reasons why he made them. During this pre-trial custody the CO must constantly review the situation to make sure that the investigation is being carried out diligently. The Co can keep the defendant in custody for a maximum of 48 hours with review points every 12 hours.

At these time periods the CO must always check if the grounds for custody are still in place and that the investigation is being carried out diligently and may set shorter time periods to ensure this. If after 48 hours custody of the accused is still needed the CO must apply to a Judicial Officer JO through the Army Courts Service ACS so that they may authorise the detention to a maximum of 96 hours. Pre-charge custody must be for the minimum time needed. These new laws have gone a long way to ensuring that any pre-charge custody as was the case in Boyle is for the minimum time needed and only for a maximum of 96 hours.

This should also coincide with the problems surrounding the European convention on Human Rights. The second case I will now explain is that of Findlay v UK4. In this case the defendant, Alexander Findlay, a Lance Sergeant in the Scots Guards had been out drinking on July 29, 1990. That evening armed with a loaded service pistol that he had improperly in his possession held members of his unit at gunpoint and threatened to kill himself and some of them. After firing two shots into a television set, he surrendered. He was then charged with a total of ten offences, six of which were civilian and four military offences.

The offences included two charges of threatening to kill and three of common assault (civilian offences); two charges of conduct to the prejudice of good order and military discipline (military offences). At a general court martial on November 11, 1991 he pleaded guilty to seven of those charges and was sentenced to be reduced to the ranks, dismissed from the service and imprisoned for two years. Findlay petitioned for a reduction in sentence under the procedure laid down in the Army Act 1955, this was done without success and then sought leave to apply for judicial review of the findings of the court-martial, which was also refused.

He then lodged an application in the European Court of Human Rights. When Findlay appeared before the Court of Human Rights he turned on the question of whether a court-martial constituted an "impartial tribunal" for the purposes of Article 6 of the European Convention on Human Rights. 5 This article which explains a persons right to a fair trial says, 1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.