European Court of Human Rights nixes part of British military pretrial confinement procedure

One of the most significant military justice developments in the last 20 years (a window that just barely excludes Solorio v. United States) is the European court system's repudiation of the British military justice system in Findlay v. United Kingdom. Whether you agree or disagree with the outcome, we can probably reach consensus on two points: (1) the outcome of the litigation was significant; and (2) the lawyer who pursued the case on Lance Sergeant Findlay's behalf performed brilliantly.

Now that lawyer -- John Mackenzie -- is at it again. In a European Court of Human Rights decision that is posted on NIMJ's web site, the Court agrees with Mr. Mackenzie that the Armed Forces Act and Queen's Regulations for the Army in place at the time the case arose violated the European Convention on Human Rights by allowing a soldier's commanding officer to decide whether to retain a soldier accused of a crime in pretrial confinement. Boyle v. United Kingdom, (Application No. 55434/00) (Eur. Ct. Hum. Rgts. Jan. 8, 2008).

Article 5 § 3 of the European Convention on Human Rights provides:

Everyone arrested or detained in accordance with the provisions of paragraph 1(e) of this Article shall be brought promptly before a judge or other officer authorized 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.

Boyle'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 European Court agreed. Relying on its decision in Hood v. United Kingdom, 29 EHRR 365 (1999), the European Court held that because the commanding officer exercised a prosecutorial role in the system, he lacked the independence and impartiality necessary to be considered a "judicial power."

While, obviously, neither the European Convention on Human Rights nor European Court of Human Rights case law directly affects our system (though we could have a fascinating discussion about how it has essentially precluded use of the U.S. military death penalty for servicemembers based in Europe), just as a hypothetical analysis, how would our pretrial confinement system come out under Boyle? The review procedures prescribed by R.C.M. 305(i) probably provide a sufficient check on command authority to distinguish the U.S. system from the British system invalidated by Boyles. But does the "neutral and detached officer" performing pretrial confinement review duties qualify as a "judicial power"?