Majority court martial verdict not breach of right to fair trial

11 January 2011 by

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.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Read More:

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.


Aarhus Abortion Abu Qatada Abuse Access to justice adoption ALBA Al Qaeda animal rights anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus costs Court of Protection crime Cybersecurity Damages data protection death penalty defamation deportation deprivation of liberty Detention disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza genetics Germany Google Grenfell Health HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Japan Judaism judicial review jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage mental capacity Mental Health military Ministry of Justice modern slavery music Muslim nationality national security NHS Northern Ireland nuclear challenges Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice sexual offence Sikhism Smoking social media South Africa Spain special advocates Sports Standing statelessness stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treaty TTIP Turkey UK Ukraine USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wind farms WomenInLaw YearInReview Zimbabwe
%d bloggers like this: