Majority court martial verdict not breach of right to fair trial

11 January 2011 by Isabel McArdle

Twaite, Re Appeal against conviction [2010] EWCA Crim 2973 – Read judgment

In an interesting decision on fair trial rights under article 6 of the European Convention, the Court of Appeal been ruled that a court martial conviction by majority neither not inherently unsafe or in breach of human rights.

Mr Twaite had been accused fraud while serving in the armed forces. He and his fiancée had been given particular military accommodation on the basis that they were getting married on 28 August 2008. In a form which Mr Twaite submitted he had allegedly been dishonest by stating that he was getting married on that date. In fact he did not marry until a year later.

The Board of a Court Martial, a special type of court which deals with military offences, convicted him of the offence on the basis of a majority verdict. This is when not all members of the Board are satisfied that the accused person is guilty, but the majority are of the opinion that he is. In different courts, the majority must be a certain number before the person is convicted.

Article 6 of the ECHR provides the right to a fair trial and goes into some detail as to what this entails. It does not cover the topic of majority verdicts and their relative fairness compared with unanimous decisions. This case raised the question of whether a majority verdict satisfies the requirements of Article 6.

In this case four members of the Board had considered Mr Twaite guilty, and one member had not.

The Article 6 Question

Mr Twaite had been tried for a serious offence which could result in a substantial custodial sentence, if convicted. In criminal trials, including before a Court Martial, the jury or Board must be satisfied beyond reasonable  doubt that a defendant is guilty of the offence before returning a verdict of guilty. The argument that Article 6 is violated by majority verdicts was that overriding the views of a minority of members of the Board or jury which does not consider that a defendant is guilty, suggests that there are objective grounds for reasonable doubt.

The Court noted that the House of Lords (now the Supreme Court) and the European Court of Human Rights had dealt with a number of cases which involved majority verdicts and raised questions about Article 6. Although the precise question asked in this case had not been raised, at no point had the majority verdict provisions been criticised as inherently unfair.

Further, the Court Martial system has in place a wide range of measures to guarantee the independence and impartiality of the Board. These safeguards make the process fair. That process involves,

Each member of the Board … conscientiously reaching the decision which he or she believes to be right in the context of the evidence, and the discussion between the members. This involves addressing and evaluating the arguments of those who suggest that there may be a reasonable doubt about guilt” (Paragraph 27).

The court ultimately found that a decision of guilt by  majority is not in itself in breach of the right to a fair trial. However, it did agree with the secretary of state’s submission that it should never be known that a defendant has been acquitted by a majority decision. Therefore:

it is… wrong in principle for any request to be made of the Board which in terms identifies an acquittal by a majority or requires it to record voting figures when the defendant is acquitted. The acquitted defendant should not be exposed to public ignominy consequent on the recording of the fact that one or more members of the Board was convinced of his guilt.

So, the decision of the court martial was upheld by the Court of Appeal, but in future “the simple question which should then be asked is, “Do you find the Defendant guilty or not guilty”. No further questions should be asked.”

A draft version of this post was accidentally published on Sunday. Apologies for this.

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Read More:

• Should Justice be Televised?
• Human Rights and Judicial Review in the Past Year- Part 3/4: Article 6, the Right to a Fair Trial