AS TO THE ADMISSIBILITY OF
Application no. 55434/00
by John BOYLE
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 25 October 2005 as a Chamber composed of:
Mr J. Casadevall, President,
Sir Nicolas Bratza,
Mr M. Pellonpää,
Mr R. Maruste,
Mr K. Traja,
Mr S. Pavlovschi,
Mr J. Borrego Borrego, judges,
Ms F. Elens-Passos, Deputy Section Registrar,
Having regard to the above application lodged on 25 February 2000,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr John Boyle, is a United Kingdom national, who was born in 1974 and has a permanent address in London. He was represented before the Court by Mr J. Mackenzie, a lawyer practising in London.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant joined the British Army in 1990. In 1999 he 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 he was arrested, along with two other soldiers, 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 (“the 1955 Act”), with
indecent assault contrary to section 14(1) of the Sexual Offences Act
1956. It appears that his two
co-accused were charged with rape. The charge was read; the CO said that the matter was to be referred to higher authority given the seriousness of the charge; the applicant was asked if he had anything to say and he replied that he had not. He was given a four-page document immediately before that hearing, which document was taken back from him immediately thereafter.
A certificate dated 6 November 1999 and signed by the applicant has been submitted: it confirms that the applicant received the pamphlet “The Rights of a Soldier Charged with an Offence under the Army Act 1955” and that he had had the opportunity to be advised by an officer of his choice. On the same date, the CO referred the case to the Higher Authority and remanded the applicant in close arrest. A short note by the CO (“referred to Higher Authority”) constitutes the sole record of that hearing before the Court.
On 16 November 1999 he 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 first is dated 12 November 1999, was signed by his CO and the reasons for detention were recorded as being “undesirable that he should remain at large” and “investigations ongoing”. All subsequent reports (dated 19 November, 25 November, 3 December and 13 December, 20 December and 29 December 1999 and dated 4 January, 12 January, 20 January, 28 January and 7 February 2000) were signed by the CO of the MCTC and recorded two reasons for his continued detention: 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 (pursuant to Rule 22 of the Investigation and Summary Dealing (Army) Regulations 1997 – “the 1997 Regulations”) on 19 November, 3 December and 20 December 1999 and on 4 January, 20 January and 7 February 2000. 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. No reasons were noted as to why the applicant had been detained except in the last form (dated 7 February 2000) which recorded the same reasons in the above-noted 8-day reports namely:
“He is likely to suborn witnesses. Having regard to the nature or prevalence of the offence under investigation it is undesirable in the interests of discipline that he should be at large or consort with his comrades.”
A Special Report form dated 4 January 2000 (relating to detention beyond the 72nd day which would fall on 13 January 2000) also recorded that the applicant was likely to suborn witnesses and that it was undesirable in the interests of discipline that he be allowed to consort with his comrades due to the seriousness of the alleged offence. A Special Report, dated 10 January 2000 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 an habitual absentee and was likely to absent himself again if released. Headquarters was to be informed if he had not been brought to trial by 14 February 2000.
On 12 January 2000 a solicitor was instructed by the applicant’s parents. On 13 January 2000 that solicitor took instructions from the applicant. The latter alleged that the accused advisor had taken no part in the review procedures.
On 14 January 2000 his solicitor requested the military authorities to provide copies of the relevant documentation concerning the applicant’s detention. By letter dated 11 February 2000 the acting Brigade Commander of the 16th Air Assault Brigade sent the above-described reports to the applicant’s solicitor.
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. A return date was fixed for 3 March 2000. The application was served on the CO of the MCTC on 19 February 2000.
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.
B. Relevant domestic law and practice
1. The investigation and laying of charges
Section 70 of the 1955 Act provides that any person subject to military law who commits a civil offence, whether in the United Kingdom or elsewhere, shall be guilty of an offence against this section. Section 76 (1) and (2) of the 1955 Act as amended by the Armed Forces Act 1996 (“the 1955 Act, as amended”) provides that any allegation that a person subject to military law has committed an offence under, inter alia, section 70 shall be reported, in the form of a charge, to his CO, who shall investigate the charge.
The CO then has power, under section 76(3) of the 1955 Act as amended, to amend the charge or substitute another charge. After investigating the charge, he has the power, under section 76(5) of the 1955 Act as amended, either to refer the charge to a higher authority, or to deal with it summarily, or to dismiss it.
If he refers the charge to a higher authority, that higher authority may either refer the case on to the prosecuting authority or refer the case back to the CO, with an order that he deal with the case summarily, that he stay it or that he dismiss it (see section 76A(1) of the 1955 Act as amended).
If the case is referred to the prosecuting authority, that authority can, inter alia, decide that the case should be tried by court-martial or discontinue the proceedings (see 83B of the 1955 Act as amended).
However, Regulation 26(2) of the Investigation and Summary Dealing (Army) Regulations 1997 (“the 1997 Regulations”) makes clear that, even if the prosecuting authority decides not to bring court-martial proceedings or to discontinue such proceedings, the CO retains the power to “take action to deal with the charge”.
2. Arrest, detention and reviews
Section 75(2) of the 1955 Act as amended provides that whenever a person subject to military law remains under arrest for longer than eight days without a hearing, a special report on the necessity for further delay shall be made by his CO to the prescribed authority and a similar report shall be made every eight days (unless not reasonably practicable) until the applicant is tried or released.
Regulations 19-24 of the 1997 Regulations are entitled “Arrest and Avoidance of Delay” and provide as follows:
“Avoidance of delay by commanding officers in investigating charges
19(1) Subject to paragraphs (2) and (3) below, when a person subject to military law is detained by military, naval or airforce authority in arrest, his commanding officer shall within 60 hours of his being detained, have such person brought before him, and read and, if necessary, explain to him the charge on which he is being held...
Detention of an accused in arrest
20(1) When a commanding officer investigates a charge against an accused in accordance with section 76(1) of the [Army Act 1955], and he intends to detain the accused in arrest, he shall have the accused brought before him and inform him:–
(a) whether he is to be detained in open or close arrest;
(b) the reason why he is so to be detained...
Continued retention of the accused in arrest
22. When the accused has been detained in arrest for a period of sixteen days the commanding officer shall, subject to the exigencies of the service, but, in any event, within twenty days of the accused being so detained, take the following action:-
(a) have the accused brought before him;
(b) having heard anything the accused or an officer on his behalf may have to say and considered any written representation that have been made by a person on his behalf, determine whether the accused should be further detained in arrest, and if so, whether in open or close arrest;
(c) inform the accused of his decision and the reasons for it...
Review of the retention of the accused in arrest by the commanding officer
23(1) Subject to paragraph (2) below, the commanding officer shall repeat the action required in regulation 22 at further successive intervals of sixteen days from the date on which the accused was first detained in arrest, until his trial begins, or he is dealt with summarily, or he is released from all forms of arrest.
(2) If, because of the exigencies of the service, the commanding officer is unable to take the action required by paragraph (1) above on the appropriate day, he may defer taking such action for a maximum period of four further days. In the event of such deferral the date on which action shall next be required by him in accordance with paragraph (1) above will be sixteen days from the date on which such action would have been taken but for the operation of this paragraph...”
The applicant invoked Article 5 § 3 of the Convention and complained:
(a) that his CO could not constitute a suitable “judge or other officer”;
(b) that he had no representation (legal or otherwise);
(c) that his CO did not make a decision on 6 November 1999 as to whether to retain him in close arrest;
(d) that there was no basis in fact or law for the decision to keep him in close arrest (because, in particular, he was not a habitual offender);
(e) that he was not informed of the reasons for his detention until 14 January 2000; and
(f) that the officers concerned did not carry out their obligations under the Army’s rules.
Article 5 § 3 of the Convention provides as follows:
“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article 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. Release may be conditioned by guarantees to appear for trial.”
A. Submissions of the parties
The applicant’s main complaint was that his CO could not constitute a suitable judge or other officer because he is 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 applicant relied in particular on the Court’s judgment in Hood v. the United Kingdom [GC], no. 27267/95, ECHR 1999-I.
Secondly, he complained that he was not provided with any form of representation (legal or otherwise).
Thirdly, he submitted that his CO did not make a decision on 6 November 1999 as to whether to retain him in close arrest. He claimed that the decision was made prior to his hearing on 6 November 1999, probably by the military police, before he could present any arguments to the contrary.
Fourthly, he claimed that there was no basis in fact or law for his detention (in particular, the claim that he was a habitual absconder was unfounded).
Fifthly he submitted that he was not told of the reasons for his detention in close arrest until 14 January 2000, when his solicitor intervened and, as a result, he had no opportunity to correct errors (such as the assertion that he was a habitual absconder).
Lastly, he alleged that no officer concerned carried out his obligations under the rules until the applicant’s final release into open arrest (although the applicant was unaware of this because there was no provision that he be provided with the paperwork).
The Government accepted the admissibility of the applicant’s complaints in relation to Article 5 § 3 of the Convention.
B. The Court’s assessment
The Court considers that serious issues of fact and law arise in relation to the applicant’s complaints which should be examined on the merits. These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and no other grounds for declaring them inadmissible has been established.
For these reasons, the Court unanimously
Decides to declare the application admissible.
Françoise Elens-Passos Josep Casadevall
Deputy Registrar President
BOYLE v. THE UNITED KINGDOM DECISION
BOYLE v. THE UNITED KINGDOM DECISION