BELL V UNITED KINGDOM [2007] ECHR

Discussion in 'Army Pay, Claims & JPA' started by Iolis, Jul 26, 2007.

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  1. I publish the reported case of Bell v United Kingdom [2007] now placed into the public domain, from the European Court of Human Rights.

    The United Kingdom was found to be in breach of Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms (Right to a fair trial) in respect of Gdsm Bell 1 GREN GDS who was awarded damages against the United Kingdom of 2,500 Euros plus interest.

    I publish it for two reasons, firstly, COs Orders was, for me, and many like me, a 'right of passage' as a soldier. CO's orders (as far as I was concerned) was not designed to dispense justice, it was designed for a CO to underwrite the arbitrary authority of the NCOs under his command. You were never stupid enough to plead 'not guilty', you took your punishment like a man, you got on with your life, never bore a grudge, and hopefully, became a better soldier, so I know that the judgement will be read by many of my generation with incredulity and not a little dismay at the decision of the court!

    The second reason I publish it is because I know it is going to 'piss off' Wolverine big time, send him apoplectic and probably ruin his day - he hates lawyers! :D

    I just know there are going to be a few choking on their tea and toast at mid-morning break! :)

    Regards to all 8)
     
  2. Is this as bad as it looks at first read:

     
  3. Auld-Yin

    Auld-Yin LE Reviewer Book Reviewer Reviews Editor

    Does this mean an end to COs saying to the the RSM

    "March the guilty barsteward in Sarn't Major." ?
     
  4. It certainly looks, to this uneducated buffoon, like we have severe problems with the legality of CO's - OC's and in fact anything lower than a Courts Martial.

    That can't be right though, could do with someone with a few more braincells to give a considered opinion on this and/or potential implications.

    Where's all the bloody Ambulance Chasers when you need one.

    And if an Ambulance Chaser does happen by:

    1. Can I claim back seven company conduct sheet's worth, of fines and stoppages of pay. :)

    2. Can I have an LS&GC medal now? ;)
     
  5. "...and his three lying friends..." :wink:


    I used to love doing orders when I was an Adj...it was like Crown Court on t'telly - only you knew how the plot would end!
     
  6. First point: It is interesting to note the Bell was NOT awarded any damages. He was only awarded costs and expenses - non of which he will personally see. The court found no grounds to award compensation for loss of pay whilst in custody, therefore, they believe that he was guilty of the original offence!

    Second point: This relates back to a case in 1998. Since then MOD have made significant changes to the rules to attempt to make summary dealing ECHR compatible. I would not stand up and say that we are 100% there yet, however, what we have now is a step change away from the way Bell was dealt with in 1998 (which having read the evidence sounds to be completely out of order).

    Do not expect anything to change in the near future. Summary dealing in its current form is here to stay for a while yet - pending any future court cases.
     
  7. Absolute layman but:

    This case may have a great or no impact. Just because a single decision has gone against the UK Govt does not necessarily mean it will react to it, so I wouldn't hold your breath waiting for some imperious missive abolishing the powers of Commanding Officers to come winging it's way over the horizon.

    That said, the key issue here (the others appear to be errors in procedure) is whether or not there needs to be further separation of duties at summary hearings i.e does there need to be a 'qualified' person presenting the case for the prosecution, leaving the CO acting as the 'magistrate' (perhaps with some legal entity advising him) to decide sentence.

    If he does, it pretty much mirrors the Courts-Martial system.

    PAW
     
  8. Hi hobgoblin.

    The Court, in Bell v United Kingdom [2007] in following it’s own jurisprudence in the eralier case of Thompson v United Kingdom [2004] case 36256/97, found the violation of article 6 had occurred for the reasons given at paras 46 and 47 of the Thompson which verbatim reads:

    "Turning therefore to the merits of his complaints under Article 6 § 1, the Court considers it clear that the summary proceedings conducted by the Commanding Officer were not compatible with Article 6 § 1 of the Convention. Most fundamentally, (the Hood case described at paragraph 33 above) and, at the same time, he was the sole judge in the case. In such circumstances, the Court finds that the summary trial presented even clearer structural independence and impartiality problems than those established the Commanding Officer was central to the prosecution of the charge against the applicant in the above-cited Findlay case. The proceedings before the Commanding Officer were, consequently, unfair (Grieves v. the United Kingdom [GC], no. 57067/00, § 91, ECHR 2003-XII). Such defects could not be corrected by a subsequent review other than a first instance hearing which met the requirements of Article 6 § 1 of the Convention (the above-cited Findlay case, § 79). There has, therefore, been a breach of the independence, impartiality and, consequently, fairness requirements of Article 6 § 1 of the Convention.

    Moreover, the Court considers that the additional complaint under Article 6 § 3(c) of the Convention about the exclusion of legal representation from summary trials should be considered separately from the structural breaches of Article 6 § 1 of the Convention established above. In this respect, it is recalled that the Convention requires that a person charged with a criminal offence (see paragraphs 32 and 42 above) who does not wish to defend himself in person must be able to have recourse to legal assistance of his own choosing (Campbell and Fell v. the United Kingdom, judgment of 28 June 1984, Series A no. 80, § 99 and Pakelli v. Germany judgment of 25 April 1983, Series A no. 64, § 31). The Court finds that the exclusion of legal representation from the applicant’s summary trial constituted a violation of Article 6 § 3(c) of the Convention (Benham v. the United Kingdom, judgment of 10 June 1996, Reports 1996-III, § 64 and Ezeh and Connors v. the United Kingdom [GC], nos. 39665/98 and 40086/98, §§ 131-134, ECHR 2003-X.”


    In Bell, The Government had sought to argue that in failing to elect trial by Court Martial, Gdsm Bell had waived his rights under article 6. However, it would seem implicit from the judgement that given the absence of qualified legal advice given to him at the time such an election was offered in violation of article 6, he was in no position to waive such rights.

    You are right to point out my error in suggesting that Gdsm Bell was awarded anything than his costs and for that I would stand admonished, but I do not think that it can be supported, and indeed I think it would be highly colourable to suggest that the absence of damages in favour or Gdsm Bell is a recognition by the Court of guilt since that would be to suggest that the court rather peversely consider him to be guilty under a procedure they have found to be domonstrably unfair since the court expressly states at paragraph 58 of their judgement that their finding in his favour against the Government of the United Kingdom, constitutes just satisfaction for any pecunmiary and/or non-pecuniary loss arising from it's violation of his rights under article 6.

    I have not heard of too many soldiers having legal representatives of their own choosing on CO's orders these days since that would appear to be the requirement set out in both cases!

    God help us all!

    Regards and best wishes
     
  9. IOLIS wrote :

    "I publish it for two reasons, firstly, COs Orders was, for me, and many like me, a 'right of passage' as a soldier. CO's orders (as far as I was concerned) was not designed to dispense justice, it was designed for a CO to underwrite the arbitrary authority of the NCOs under his command. You were never stupid enough to plead 'not guilty', you took your punishment like a man, you got on with your life, never bore a grudge, and hopefully, became a better soldier, so I know that the judgement will be read by many of my generation with incredulity and not a little dismay at the decision of the court!"

    Only if you had a scrupulously fair and correct CO. I was once charge by a REME CO for failing to comply with Part 1 Orders, found guilty and fined £50 even though on producing said Part 1's and using the RQMS as a witness against himself to confirm I had complied.
     
  10. Has anyone ever had a fair trial by the CO?
    7 days jail and what amounts to a 400 pound fine just for saying F*** off........ In civvy street you get less for mugging, burglary drink driving, to name a few.

    I cant think of anyone i know that went on CO's orders and was proved innocent. so either the system is unfair or the decision to charge someone is Always the right one. I know which one it is.
     
  11. But this isn't civvy street and once you start chipping away at discipline in barracks it begins to spread to ops and somebody cocks their toes up because obedience isn't instant.
    Also in my time at least you'd always had OCs before you went on COs and I knew quite a few who had nothing worse than a few extra duties imposed. THe army is supposed to be a disciplined force and once the discipline goes everything goes.
    As a former CSM told me, "The army isn't a democracy"
     
  12. Agree with you there, We dont know the whole story but if it was just telling a sgt to f*** off, 7 days seems a bit harsh. Your right, i would have expected this to be dealt with by CSM/RSM giving extras.
     
  13. oldbaldy

    oldbaldy LE Moderator Good Egg (charities)
    1. Battlefield Tours

    I would have expected the CSM to plant me one! :roll:
     
  14. Good old Private Bell, nice work
     
  15. if I'm reading it right he didn't even get half his costs - he claimed £3k + VAT (£3,525) but only got €2,500 (about £1,700)