Many of the provisions of the Criminal Law (Insanity) Act, 006 were crafted specifically with the requirements of Article the European Convention in mind

4. The Military Justice System

I turn now to my third topic, the area of military justice, which is again an area in which the State recently enacted legislation designed to prevent or deal with challenges in the domestic courts based on Convention law. In fact a number of proceedings challenging the court-martial procedure were already in being at the time of the passing of this legislation. As far as I know, only one had resulted in a written decision of any kind; and this was only in relation to the ‘leave’ stage of judicial review proceedings. The Court was clearly of the view that Convention arguments would be central to a determination of the issues in the case. This case is the High Court decision (Clarke J) in Potts v. Minister for Defence (Unreported, 10^th March 2005), a reserved decision on a contested application for leave to bring judicial review proceedings in respect of the summary determination of a charge of being absent without leave.

Traditionally, the Irish military justice system was, in its fundamentals, identical to the UK system. Central to the administration of summary justice was the Commanding Officer, a person embedded in the hierarchical chain of command of the Defence Forces, with the power to impose detentions of a limited nature. A more serious, non-summary, case would be sent for trial by court martial. Here, there were a number of aspects of the system that gave rise to concern concerning the independence and impartiality of the decision-making body, and the separation of functions as between the convenor of the court-martial, the prosecutor and the decision-makers.
Once Articles 5 and 6 had been successfully used in Strasbourg to lay siege to the United Kingdom military justice system in the cases, some of which are discussed below, the writing was on the wall for the Irish system. The recent Defence (Amendment) Act, 2007 was enacted, presumably, to bring Irish military law into line with the Convention requirements. Indeed, prior to the enactment of this legislation, the practice on the ground within the Defence Forces had already been altered by administrative direction and litigants had already adapted their pleadings to argue that such administrative arrangements had no legal validity.
It should be said that much of the logic of the ‘military’ cases also applies to prison disciplinary cases, although the deprivation of detention in this context tends to arise by way of loss of remission rather than by direct imposition of detention. A cross-fertilisation from each of these areas is apparent from the case-law of the ECHR itself, and reference will be made to authorities from both areas.

(a) When does Article 6 apply to military and/or prison disciplinary proceedings?

The primary Articles of relevance to the military justice system are Articles 5 and 6 of the Convention. Of course, Article 6 of the Convention does not apply to all aspects of military justice; but, equally, military justice is not excluded from the ambit of Article 6 simply because of its special classification in domestic law; a classification which, in Irish law, is entrenched at constitutional level. It has been clear since the decision in Engel v. Netherlands (1976) 1 E.H.R.R. 647, that Convention law looks not merely to the domestic classification of the proceedings, but also to the nature of the offence and the severity of the penalty risked, in determining whether Article 6 fair trial guarantees apply. It may or may not be possible to dispose of the question whether a given offence falls within Article 6 on the second criterion alone. For example, in one of the leading cases concerning military justice, Findlay v. United Kingdom (1997) 24 EHRR 221, the offences in question clearly fell within the scope of Article 6, where the applicant had held members of his unit at pistol point and threatened to kill himself and some of his colleagues. Other cases may be more borderline, and it will be necessary to examine the potential penalty in addition to the nature of the offence. This occurred, for example, in Campbell and Fell v. United Kingdom (1984) 7 E.H.R.R. 165, where the Court was considering a range of offences within a prison disciplinary context. The court noted that some disciplinary offences were no more than a question of internal discipline, while others were significantly more serious, and that all the offences were graded according to severity. Another relevant factor was whether an act was illegal because it was committed in prison, or whether it was an act that would in any event be a criminal offence under the general criminal law. Applying those considerations to the offences before them, namely mutiny/incitement to mutiny and violence on a prison officer, the Court was of the view that while they were not necessary entirely of a ‘criminal’ nature, they had a certain ‘colouring which does not entirely coincide with that of a purely disciplinary matter’. In those circumstances it became necessary to go on to examine the third criterion, namely the extent of the penalty attached to the offence. Similarly, in Ezeh and O’Connor v. United Kingdom (2004) 39 EHRR 1, another case concerning prison disciplinary offences, the Court took the view that the offences in question, threatening a probation officer and a minor assault respectively, had a ‘colouring which did not entirely coincide with that of a purely disciplinary matter’ and went to examine the penalties in question. This reasoning clearly applies to the military context also.

In both military and prison discipline settings, a range of penalties fall to be considered. As one might expect, penalties affecting the person’s liberty will tend to be presumed criminal and to draw the proceedings into the protective area of Article 6. The Court has said that only those deprivations of liberty ‘… which by their nature, duration or manner of execution cannot be appreciably detrimental’ (Engel v. Netherlands, supra) fall outside the Article 6 comfort zone. However, unlike the situation in ‘ordinary’ criminal law, military systems tend to employ a range of measures involving a spectrum of restrictions on liberty rather than just the sanction of imprisonment. A range of such measures affecting liberty in the context of the Dutch military discipline system were examined in Engel (supra). A penalty of several months committal to a disciplinary unit constituted ‘the imposition of serious punishments involving deprivation of liberty’ and the offences in question therefore fell within Article 6. At the other end of the spectrum, penalties of three and four days ‘light arrest’ constituted only a ‘light punishment not occasioning deprivation of liberty’, where light arrest consisting of being confined during off-duty hours to their dwellings or to military buildings, but being allowed to perform their duties the rest of the time and remaining more or less within the ordinary framework of army life (see para 60 and 85). The penalty of two days strict arrest constituted a deprivation of liberty, but ‘was of too short a duration to belong to the ‘criminal law’’ (para 85). In the Commission decision in Eggs v. Switzerland, supra, a penalty of five days strict arrest, although accepted to be ‘relatively harsh’, was found not to bring the measure within the meaning of a ‘criminal charge’ in Article 6.
However, it important to note that deprivations liberty falling outside Article 6 will in any event automatically fall under Article 5. In the same case, the Court held that the measure did constitute a deprivation of liberty within the meaning of Article 5, and therefore required justification under one of the subparagraphs. The Court held that it was justified under Article 5(1)(a) (‘after conviction by a competent Court’). This leads to the somewhat perplexing position that one can have a ‘conviction’ under Article 5(1)(a) without a ‘criminal charge’ under Article 6. The Commission, however, had no difficulty with this position, stating ( at para 64):

‘Unlike Article 6, [Article 5] does not contain any express reference to criminal law. It applies to any ‘conviction’ occasioning deprivation of liberty, pronounced by a ‘Court’, whether the conviction be classified as criminal or disciplinary by the internal law of the state in question (Engel judgment, para. 68. The assumption is that the actual detention has been preceded by a decision on the validity of the charges or complaints, taken by a competent Court in conformity with national legislation.’

As noted above, in a prison disciplinary context, the deprivation of liberty can arise in the form of a loss of remission, rather than the imposition of a penalty of detention. The Court decided in Ezeh and O’Connor (supra) (in respect of the first applicant) that a penalty of 40 days additional custody, being the equivalent of a court imposing an 11-week sentence of imprisonment, falls within Article 6; and further (in respect of the second applicant), that 7 days additional custody, being the equivalent of a court-imposed sentence of 2 weeks imprisonment, also falls within Article 6. The Court did not comment on the remaining aspects of the penalties in question which consisted of were 14 days and 3 days cellular confinement (first and second applicants respectively); 14 days exclusion from associated work (first applicant); 14 days forfeiture of privilege (first applicant); and a fine of £8 stg (second applicant). More recently, in Young v. United Kingdom, (Application No. 60682/00, 16^th April 2007), the Court held that the potential loss of liberty of 42 days and actual loss of 3 days was sufficiently consequential as to be considered to fall within the ‘criminal charge’ within Article 6, even though the nature of the charge was of a purely disciplinary nature (disobeying a lawful order). In Black v. United Kingdom (Application No. 56745/00) Judgment of 16 January 2007, the applicant also risked a potential detention of 42 days and actually received 5 days for disobeying a lawful order, and again the Court held this to fall within Article 6.

The range of penalties under military law also encompass a variety of other measures, such as dismissal, reduction in rank, forfeiture of rank, severe reprimand, reprimand, and warning. Such penalties are obviously not the penalties one typically associates with matters of a criminal nature. However, their impact on a person’s career can be significant, either directly, or more indirectly, as where penalties imposed are taken into account in deciding whether a person’s contract will be renewed. In this context, it is noted that the Court has sometimes employed, in deciding whether or not the ‘criminal charge’ limb of Article 6 applies to a given set of facts, the somewhat elastic formula of what is ‘at stake’ for the Applicant in deciding whether the gravity of the penalty brings the matter within the remit of a ‘criminal charge’ (e.g. Weber v. Switzerland (1990) 12 EHRR 508, Demicoli v. Malta (1991) 14 EHRR 47). This concept might be considered sufficiently flexible to encompass disciplinary measures such as dismissals or reductions in rank.