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FOURTH
SECTION
CASE OF CROMPTON v. THE UNITED KINGDOM
(Application
no. 42509/05)
JUDGMENT
STRASBOURG
27 October 2009
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Crompton v. the
United Kingdom,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Lech Garlicki, President,
Nicolas
Bratza,
Giovanni Bonello,
Ljiljana
Mijović,
Päivi Hirvelä,
Ledi
Bianku,
Nebojša Vučinić, judges,
and Fatoş
Aracı,
Deputy Section Registrar,
Having
deliberated in private on 6 October 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 42509/05, BAILII: [1999] ECHR 183 ) against the United
Kingdom of Great Britain and Northern Ireland lodged with the Court
under Article 34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by a British
national, Mr Thomas John Crompton (“the applicant”), on
20 November 2005.
- The
applicant was represented by Levys Solicitors, a firm of solicitors
based in Manchester. The United Kingdom Government (“the
Government”) were represented by their Agent, Ms H. Moynihan,
Foreign and Commonwealth Office.
- On
13 May 2008 the acting President of the Fourth Section decided to
give notice of the application to the Government. It was also decided
to examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
- The
parties requested an oral hearing. However, the Chamber decided not
to hold a hearing in the case.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant, Mr Thomas John Crompton, is a British national who was
born in 1954 and lives in Stalybridge, Cheshire.
- The
facts of the case, as submitted by the applicant, may be summarised
as follows.
- In
1989 the applicant joined the Territorial Army (“TA”) as
a pay and accounts clerk, a military post, carrying out duties such
as filing, photocopying and maintaining a stationery store. In July
1993 the applicant was informed that he was to be made redundant,
following organisational changes in the TA pursuant to a process of
civilianisation. He was subsequently informed that the clerical post
which he had occupied was to become a civilian post and was to be
converted to that of a technical store-man. The applicant applied for
this new post, but was informed in February 1994 that he could take
it only if he undertook a training course, but that all relevant
training courses had been cancelled. He also applied for a number of
other clerical posts within the Army but was refused for them all.
- The
applicant was therefore made redundant. His discharge from the Army,
dated 18 February 1994, was formally made, incorrectly, on the basis
that his services were no longer required. The applicant later
discovered that his former duties were being carried out by an
untrained civilian, while the technical store-man post remained
vacant.
- On
3 May 1994 the applicant complained about his redundancy to the
Industrial Tribunal, but his claim was rejected because the
Industrial Tribunal did not have jurisdiction over matters involving
military personnel.
- On
19 December 1994 the applicant claimed redress in respect of his
redundancy from his Commanding Officer, under sections 180 and 181 of
the Army Act 1955.
- On
22 March 1995 the Commanding Officer issued a brief in which he
concluded that the applicant had a weak case for redress. He further
requested the Army Board of the Defence Council to determine whether
the applicant was subject to military law. The applicant's
solicitors, on 6 December 1996, submitted observations in reply.
The matter was then placed before the Army Board.
- In
January 1998, the applicant applied for judicial review in respect of
the Army Board's failure to determine the case within a reasonable
time. His application was granted by the High Court on 2 February
1998 and the Army Board was ordered to deal with the case
expeditiously.
- The
Army Board, without holding an oral hearing or directing a Board of
Inquiry to be convened, issued its decision on 7 May 1998, refusing
the applicant's claim for redress.
- The
applicant applied for judicial review of the decision not to hold an
oral hearing or convene a Board of Inquiry.
- On
3 November 1998, while the judicial review application was pending,
the Army Board directed that a Board of Inquiry should be convened.
The Board was convened by an order dated 10 February 1999. It
sat in March 1999, considered oral and documentary evidence and
issued a summary of its factual findings on 6 May 1999. It found in
the applicant's favour as regards his argument that he ought to have
been, but was not, given priority before five selection boards. It
was anticipated that the level of compensation would be fixed by
negotiation between the Army Board and the applicant.
- The
Army Board met to reach a determination on 11 April 2001. It issued
its decision on 16 July 2001, ordering that the applicant be offered
compensation in respect of the failure to offer him alternative
employment within the Army. On 10 August 2001, an award of
compensation was notified to the applicant but he disputed the
calculation of the compensation.
- In
November 2001 a further offer of settlement was made to the
applicant, which he rejected.
- On
11 April 2003 the Army Board made a further compensation offer of GBP
94,016.67. The sum was made up of three parts: loss of salary (minus
the applicant's actual earnings during the relevant period); a
redundancy payment estimated on the basis that the applicant would
have had an extra six years' service; and loss of pension rights,
again based on a six-year period. The applicant rejected the offer on
the basis that it did not include costs or a sum to compensate him
for the stress he had suffered.
- The
applicant, acting as a litigant in person, subsequently applied for
judicial review of the decision, claiming that the award had not been
properly assessed. Permission was granted on 23 June 2003. The
applicant advanced two criticisms: first, that the award was based on
the assumption that he would have been discharged from the army six
years after the date on which he was actually discharged; second,
that the salary base used for the calculation of all three elements
of the award was taken to be GBP 15,800 per year gross. The
latter criticism was only formally advanced at the hearing itself.
- On
16 October 2003 the High Court rejected the applicant's complaint
regarding the six-year cut-off date. However, in light of evidence
produced to the court regarding the level of the applicant's salary
at the time of his redundancy, the court accepted the Army Board's
undertaking to review the level of the annual salary used in its
calculation and, if appropriate, to reassess the award of
compensation within 35 days. Although formally the applicant was the
unsuccessful party in the litigation, and as a result would normally
be required to pay the costs of the Army Board, the court ordered the
applicant to pay only half of the Army Board's costs partly on the
ground that “the history of this matter displays an inordinate
period of delay”.
- On
20 November 2003, a revised offer of GBP 147,682.42 was made to the
applicant. The offer was rejected.
- The
applicant again applied for judicial review on 11 January 2004
seeking an order requiring the Army Board to investigate and take
steps towards redressing his complaint within a prescribed time-frame
and damages for the losses suffered by him as a result of the Army
Board's failure to perform its duties. There was a hearing on 10
February 2004 but no order was made.
- On
13 April 2004, a further offer was made to the applicant in the sum
of GBP 153,000.
- On
26 July 2004 the applicant again applied for judicial review in
respect of the delay but again, following a hearing on 10 August
2004, no order was made.
- On
19 May 2005, following another application for judicial review, the
High Court adjourned the case pending promulgation by the Army Board
of its written decision regarding the offer of compensation.
- On
24 May 2005 the Army Board issued its decision awarding the applicant
compensation of GBP 153,864.47.
- The
applicant's application for judicial review was refused on 24 June
2005 on the ground that the Army Board's decision had brought the
finality which the applicant had been seeking.
- The
applicant brought a fresh application for judicial review on the
ground that the award of 24 May 2005 had been incorrectly reached.
The application was refused on the papers on 22 September 2005.
Following the applicant's renewed application and an oral hearing,
permission was finally refused on 14 November 2005.
II. RELEVANT DOMESTIC LAW
A. Recruitment in the army
- According
to Halsbury's Laws of England (4th Edition), the terms of
engagement of members of the armed forces do not constitute a
contract of service in the strict sense. Members of the armed forces
are appointed by the Crown under the Royal prerogative and hold their
appointments “at the Queen's pleasure”.
- The
TA, although essentially part-time, has a small number of attached
regular army officers and non-commissioned officers responsible for
organising and supervising the management and training of the unit.
At the relevant time, the routine administration of the TA tended to
be vested in a special category of uniformed reservists known as
Non-Regular Permanent Staff (“NRPS”). NRPS were recruited
into the TA to perform a specific job within a TA unit.
- Under
section 205(1)(h) of the Army Act 1955, NRPS soldiers were subject at
all times to military law.
B. Redress in the army
1. Complaint to commanding officer
- Section
181 of the Army Act 1955 set out, at the relevant time, the redress
available to the applicant following his redundancy. It provided as
follows:
“(1) If a warrant officer, non-commissioned
officer or soldier thinks himself wronged in any matter by any
officer other than his commanding officer or by any warrant officer,
non-commissioned officer or soldier, he may make a complaint with
respect to that matter to his commanding officer.
(2) If a warrant officer, non-commissioned officer or
soldier thinks himself wronged in any matter by his commanding
officer, either by redress not being given to his satisfaction on a
complaint under the last foregoing subsection or for any other
reason, he may, in accordance with the procedure laid down in Queen's
Regulations, make a complaint with respect thereto to the Defence
Council,
(3) It shall be the duty of
a commanding officer
or, as the case may be, the Defence Council to have any complaint
received by him or
them investigated and to take any steps for redressing the matter
complained of which appear to him or
them to be necessary.”
- Queen's
Regulation (“QR”) 5.204(b) provided:
“Every complaint is to be fully and distinctly
stated and any explanation or other evidence as may be necessary for
the proper investigation and speedy determination of the complaint is
to be annexed to it.”
- QR
5.205 provided:
“A complaint is to be submitted, in writing, to
the complainant's commanding officer no matter if the commanding
officer has previously refused to redress the matter complained of;
has not the power to grant the redress sought; or if the complaint
has been made against the action or refusal of action by the
commanding officer himself.”
- QR
5.206 provided:
“Any complaint under Section ... 181(2) of the
Army Act 1955 is, when received by the commanding officer, to be
forwarded by him, with any comments, to his next higher authority.
That authority is to examine the complaint and is himself to grant
redress if he has power to do so and thinks he should. If redress is
not then granted, or is not granted to the complainant's
satisfaction, that authority is to forward the complaint, together
with any comments by the commanding officer and himself, to the next
higher authority, and the procedure repeated. In this way, unless
full redress is granted at an intermediate level, the complaint will
come up through the chain of command to the Ministry of Defence and
will be presented to the Army Board of the Defence Council. The
complainant is to be informed of progress at each stage and given the
opportunity to withdraw his complaint if he wishes.”
- New
primary legislation governing redress of complaints was introduced in
the Armed Forces Act 1996 but this new legislation applied only to
complaints brought on or after 1 October 1997.
2. Procedure before the Defence Council
- The
Defence Council is appointed by Letters Patent from Her Majesty to
have command of the armed forces. It is composed of the defence
ministers, the most senior Ministry of Defence civil servants and the
most senior officers of the armed forces.
- Under
section 1(5) of the Defence (Transfer of Functions) Act 1964, the
functions of the Defence Council may be discharged by the Army Board.
- The
requirements of fairness to be observed in the procedure before the
Defence Council were set out in R v Army Board ex parte Anderson
[1992] 1 QB 169 (“the Anderson principles”). The
Divisional Court considered that the Army Board must achieve “a
high standard of fairness” and, in particular, there must be a
proper hearing at which all relevant evidence is considered; the
members of the Board must meet for this purpose; where appropriate,
an oral hearing must be held with opportunity for cross-examination
of witnesses; there must be a proper examination; all material seen
by the Board must be disclosed to the complainant (subject to public
interest immunity exceptions); and the complainant must be given an
opportunity to respond to material and have his response considered
by the Board.
3. The Board of Inquiry
- Under
section 135(1) of the Army Act 1955, the Defence Council had the
power to convene a Board of Inquiry (“the Board”) to
investigate and report on the facts relating to a matter referred to
it by the Defence Council.
- The
composition of the Board was specified in section 135(2) as
consisting of a president, who shall be an officer
not below the rank of captain or corresponding rank and be subject to
military law, and not less than two other members each of whom shall
either be a person subject to military law or a person not so subject
who is in the service of the Crown.
42. The
applicable rules were set out in the Board of Inquiry (Army) Rules
1956 (“the Rules”), which established, under Rule 3, a
duty for the Board to investigate and report on the facts relating to
any matter referred to it and, if directed to do so, to express its
opinion on any question arising.
43. Rule
8(2) provided that:
“The President shall lay the terms of reference
before the board and the board shall proceed to hear and record
evidence in accordance with the provisions of these Rules.”
44. Rule
10(1) provided:
“A board shall hear the evidence of the witnesses
who have been made available by the authority and may hear the
evidence of such other persons as they think fit.”
45. Rule
12 provided:
“A board may receive any evidence which they
consider relevant to the matter referred to the board, whether oral
or written, and whether or not it would be admissible in a civil
court.”
46. Rules
15(1) provided:
“The president shall record, or cause to be
recorded, the proceedings of the board in writing and in sufficient
detail to enable the authority to follow the course of the
proceedings.”
- The
relevant QR (5.009) provided as follows:
“Administrative instructions relating to boards of
inquiry convened in accordance with the Board of Inquiry (Army) Rules
1956 ... are contained in Annex A to this Chapter. These instructions
are to be followed in all cases.”
Paragraph
47 of Annex A provided:
“... all persons who may be affected by the
findings are to be given an opportunity to attend or be
[re]presented.”
Although
the Army Board was not strictly bound by the findings of a Board of
Inquiry, it would be rare for the Army Board to substitute its own
findings for those of the Board.
C. Access to employment tribunals
- Members
of the armed forces have access to civilian employment tribunals in
relation to issues regarding equal pay and unlawful discrimination on
grounds of race, sex, religion, belief or sexual orientation.
- Although
at the relevant time the right not to be unfairly dismissed was a
statutory right, under section 54(1) of the Employment Protection
(Consolidation) Act 1978, its application to service as a member of
the armed forces was excluded under section 138 of the Act.
Accordingly, the Industrial Tribunal did not have jurisdiction to
hear a claim for unfair dismissal brought by a member of the armed
forces.
D. The scope of judicial review of administrative decision-making
- The scope of judicial review in administrative
decision-making in the United Kingdom is set out in the Court's
judgment of Tsfayo v. the United Kingdom, no. 60860/00, §§
25-33, 14 November 2006, BAILII: [2006] ECHR 981
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the proceedings took eleven years to reach
their conclusion. He contended that this was a breach of the
requirement of a hearing within a reasonable time under Article 6 §
1 of the Convention, which reads as follows:
“1. In the determination of his civil
rights and obligations ... everyone is entitled to a fair and public
hearing within a reasonable time by an independent and impartial
tribunal established by law.”
- He
further complained that the Army Board and the Board of Inquiry did
not constitute an independent and impartial tribunal as required by
Article 6 § 1 of the Convention.
A. Applicability of Article 6 to the proceedings
- The
Government accepted that the applicant's civil rights were determined
in the domestic proceedings and that Article 6 was applicable.
- The Court recalls that, in accordance with its
previous case-law, access to court may be excluded in respect of
employment disputes regarding a certain category of civil servants
where such exclusion is both expressly set out in national law and
justified on objective grounds in the State's interest (see, inter
alia, Vilho Eskelinen and Others v. Finland [GC], no.
63235/00, BAILII: [2007] ECHR 314 , § 62, ECHR 2007 ....). The Court notes that
the Government do not allege that any such situation arises in the
present application.
- The
Court therefore agrees with the parties that the applicant's claim
concerned his civil rights and that, accordingly, the guarantees in
Article 6 § 1 apply to the proceedings.
B. Complaint regarding the length of the proceedings
1. Admissibility
- The
Court considers that the complaint regarding the time taken for the
proceedings in relation to the applicant's complaint to be finalised
is not manifestly ill-founded within the meaning of Article 35 §
3 of the Convention. It further notes that it is not inadmissible on
any other grounds. It must therefore be declared admissible.
2. Merits
a. The parties' submissions
- The
applicant argued that the resolution of his grievance regarding his
dismissal from his post was substantially delayed, in violation of
his rights under Article 6 § 1 of the Convention. Although he
made his complaint to his commanding officer in December 1994, the
Army Board did not consider the complaint until April 1998. A Board
of Inquiry was subsequently convened in January 1999 and despite its
findings in May 1999 upholding a number of the applicant's
complaints, the Army Board did not take any further action until July
2001 when it was agreed that the applicant should be awarded
compensation. An offer of compensation was eventually made in April
2003. Following judicial review proceedings, a further offer was made
on 24 May 2005, some 11 years after his discharge from the armed
forces.
- The
Government accepted that the time which elapsed between the applicant
making his claim for redress on 19 December 1994 and the final
determination of his claim on 24 May 2005 was not reasonable, within
the meaning of Article 6 § 1.
b. The Court's assessment
- The
Court reiterates that the reasonableness of the length of proceedings
is to be assessed in the light of the particular circumstances of the
case, regard being had to the criteria laid down in the Court's
case-law, in particular the complexity of the case and the conduct of
the applicant and of the relevant authorities (see Selmouni v.
France [GC], no. 25803/94, BAILII: [1999] ECHR 66 , § 112, ECHR 1999 V;
Frydlender v. France [GC], no. 30979/96, BAILII: [2000] ECHR 353 , § 43, ECHR
2000 VII). On the latter point, the importance of what is at
stake for the applicant in the litigation has also to be taken into
account (see e.g. Glaser v. the United Kingdom, no. 32346/96, BAILII: [2000] ECHR 419 ,
§ 93, 19 September 2000; and Frydlender, cited above, §
43).
- The Court considers that the proceedings in the
present case were of some financial importance to the applicant.
Furthermore, the issues raised were not factually or administratively
complex. The Court notes that there were significant periods of
inactivity on the part of the authorities and that the High Court
commented on the “inordinate period of delay” in the
proceedings. The Court is therefore not persuaded that the
proceedings were pursued with the diligence required by Article 6 §
1. In this regard, the Court refers to the Government's admission
that the proceedings were not concluded within a reasonable
time. These considerations are sufficient to enable the Court to
conclude that the “reasonable time” prescribed by Article
6 § 1 was exceeded.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention in this regard.
C. Complaint concerning the independence and impartiality of the
tribunal
1. Admissibility
- The
Court considers that the complaint regarding the independence and
impartiality of the tribunal is not manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention. No other grounds
for ruling it inadmissible have been established. It must therefore
be declared admissible.
2. Merits
a. The parties' submissions
- The
applicant alleged that he was denied a fair and impartial hearing
before an independent fact-finding tribunal. He pointed out that his
complaint was first determined on 30 April 1998 by the Army Board,
composed of members of the armed forces, without a prior hearing. The
Army Board concluded that his version of events was inaccurate.
Although the complaint was later considered by the Board of Inquiry,
this body was also composed of members of the armed forces.
Accordingly, the applicant's complaints were at all stages determined
by members of the very organisation whose conduct was the subject of
the complaint.
- According
to the applicant, this was not remedied by the availability of
judicial review, as judicial review proceedings did not provide an
effective method of determining his factual complaint. The High Court
was not bound to consider oral evidence and its supervisory role,
absent evidence of perversity, was limited by any factual
determination made by the relevant bodies of the armed forces. The
applicant therefore concluded that his factual complaint had never
been considered by an independent and impartial body.
- The
Government argued that even if the proceedings before the Army Board
and the Board of Inquiry were not strictly speaking independent,
their determination was subject to challenge in the High Court, which
had sufficient jurisdiction in the judicial review proceedings to
ensure that the process as a whole complied with Article 6 § 1.
- Relying
on Tsfayo v. the United Kingdom, no. 60860/00, § 42,
14 November 2006, BAILII: [2006] ECHR 981 , the Government argued, first, that the nature
of the complaint was not such as to require determination at first
instance by an Article 6-compliant body. On the contrary, it was
appropriate that the complaint be determined by the Army Board,
exercising its administrative discretion and professional judgment
and applying a high standard of fairness enforceable by judicial
review, with the added protection of referral to a Board of Inquiry
to consider disputed issues of fact.
- Second,
as regards the manner in which the decision was reached, the
Government considered each of the two decisions taken by the Army
Board separately. In respect of the decision to award compensation,
the Government noted that the Army Board accepted the findings of the
Board of Inquiry. Although the Board of Inquiry was made up of
members of the armed forces, none were in the applicant's immediate
chain of command or had any connection with the events in respect of
which the applicant sought redress. The procedure before the Board of
Inquiry was set out in the relevant rules and the Anderson
principles applied throughout. The applicant was present at those
proceedings and was represented by counsel, who was able to
cross-examine witnesses and lodge written submissions. Accordingly,
the Government concluded that the factual questions were examined by
a quasi-judicial body whose process had most of the hallmarks of a
judicial process and was attended by numerous quasi-judicial
safeguards. As regards the decision on the amount of compensation to
award, although this was taken administratively, the Anderson
principles applied and, in any case, the decision was subject to
challenge by way of judicial review. It was therefore entirely
appropriate in the present case.
- Third,
in respect of the content of the dispute, the question whether
compensation ought to have been awarded was determined by the Board
of Inquiry in a manner which complied with the requirements of
Article 6. The level of compensation was determined administratively,
but subject always to the Anderson principles. Both decisions
were open to challenge by way of judicial review. It was clear that a
court on judicial review could quash a decision not only if it was
vitiated by legal misdirection, procedural impropriety or unfairness,
bias, irrationality or bad faith, but also if there was no evidence
to support factual findings, if they were plainly untenable or if the
decision-maker was shown to have misunderstood or been ignorant of an
established and relevant fact (Begum v. London Borough of Tower
Hamlets [2003] UKHL 5, as recorded by the Court in Tsfayo,
cited above, § 26).
- The
Government accordingly concluded that the High Court had “full
jurisdiction” in respect of the applicant's complaint, which
was therefore determined by an independent and impartial tribunal.
b. The Court's assessment
i. General principles
-
The Court recalls that even where an adjudicatory body determining
disputes over “civil rights and obligations” does not
comply with Article 6 § 1 in some respect, no violation of
the Convention can be found if the proceedings before that body are
“subject to subsequent control by a judicial body that has full
jurisdiction and does provide the guarantees of Article 6 § 1”
(Albert and Le Compte v. Belgium, 10 February 1983, BAILII: [1983] ECHR 1 , § 29,
Series A no. 58).
- The
Court has previously held that in order to determine whether the
Article 6-compliant second-tier tribunal had “full
jurisdiction”, or provided “sufficiency of review”
to remedy a lack of independence at first instance, it was necessary
to have regard to such factors as the subject-matter of the decision
appealed against, the manner in which that decision was arrived at
and the content of the dispute, including the desired and actual
grounds of appeal (see Bryan v. the United Kingdom, 22
November 1995, BAILII: [1995] ECHR 50 , §§ 44 to 47, Series A no. 335 A; and
Tsfayo, cited above, § 43).
- In
Bryan, cited above, the Court found it reasonable that the
jurisdiction of the High Court to review findings of fact made at
first instance be limited to considering whether the findings of
fact, or the inferences based on them, were perverse or unreasonable.
It reached this conclusion in light of the specialised area of law in
issue in the dispute and the expertise of the inspector in
establishing the facts and exercising discretion on a wide range of
policy matters. Accordingly, judicial review in that case offered
“sufficiency of review” and the proceedings complied with
Article 6 § 1 of the Convention. The Convention organs
followed the approach set out in Bryan to find that judicial
review did provide “sufficiency of review” in a number of
cases against the United Kingdom (for example, X. v. the United
Kingdom, no. 28530/95, BAILII: [1998] ECHR 117 , Commission decision of 19 January
1998, concerning a determination by the Secretary of State that the
applicant was not a fit and proper person to be chief executive of an
insurance company; Stefan v. the United Kingdom, no. 29419/95, BAILII: [1997] ECHR 203 ,
Commission decision of 9 December 1997, concerning proceedings before
the General Medical Council to establish whether or not the applicant
was mentally ill and thus unfit to practise as a doctor; and Kingsley
v. the United Kingdom [GC], no. 35605/97, BAILII: [2002] ECHR 468 , § 32,
ECHR 2002-IV).
- However,
in Tsfayo, cited above, the Court reached a different
conclusion, concluding that the decision-making process was
significantly different from previous cases. Whereas in Bryan,
the issues to be determined required a measure of professional
knowledge or experience and the exercise of administrative discretion
pursuant to wider policy aims, in Tsfayo the Housing Benefits
Review Board (“HBRB”) was deciding a simple question of
fact, namely whether there was “good cause” for the
applicant's delay in making a housing benefit claim. On this
question, the applicant had given evidence to the HBRB that the first
that she knew that anything was amiss with her claim for housing
benefit was when she received a notice from her landlord – the
housing association – seeking to repossess her flat because her
rent was in arrears. The HBRB found her explanation to be
unconvincing and rejected her claim for back-payment of benefit
essentially on the basis of their assessment of her credibility. No
specialist expertise was required to determine this issue. Nor could
the factual findings in Tsfayo be said to be merely incidental
to the reaching of broader judgments of policy or expediency which it
was for the democratically accountable authority to take.
Accordingly, the Court concluded that judicial review proceedings did
not offer, in the circumstances raised in Tsfayo, “sufficiency
of review” in light of the fact that the High Court had no
jurisdiction to rehear the evidence or substitute its own views as to
the applicant's credibility. As a result, the central issue in the
dispute was not determined by an independent and impartial tribunal.
ii. Application of the general principles to the
facts of the case
- The
Court recalls that there were two contested issues in the applicant's
case before the Army Board: first, whether there was a failure to
give him the correct priority when he sought alternative posts within
the armed forces; and, second, whether the level of compensation
offered was correct.
-
As regards the first issue, the Court observes that the Board of
Inquiry and the Army Board found in favour of the applicant and
upheld his complaint that he should have been, but was not, given
priority consideration before five selection boards and that he had
as a result been materially disadvantaged. They agreed that, as a
consequence, the applicant should be offered compensation. There is
therefore no longer any dispute between the parties on this first
issue. It follows that the dispute between the applicant and the
armed forces for consideration by the Court relates solely to the
calculation of the compensation award by the Army Board.
- The
Court notes that the Army Board was composed of members of the armed
forces, the organisation from which the applicant was seeking
compensation. The Government do not expressly concede that the Army
Board lacked structural independence. However, in arguing that the
applicant had his proceedings determined by an independent and
impartial tribunal, they rely on the fact that, in their contention,
the High Court had sufficient jurisdiction to ensure compliance of
the proceedings as a whole with Article 6.
- The
Court considers that there is a legitimate concern that the Army
Board lacked the necessary structural independence to comply with the
requirements of Article 6 in assessing the level of compensation to
be awarded to the applicant. However, as noted above (§ 72), it
is not always the case that such circumstances will give rise to a
violation of Article 6. The Court observes that the Army Board had
responsibility, in the main, for making findings of fact. In
addition, in the present case, it enjoyed a large degree of
discretion in deciding what level of compensation ought to be offered
to the applicant, the relevant legislation and internal regulations
laying down no particular method by which any award of compensation
ought to be calculated. However, unlike the cases of Bryan v.
the United Kingdom and X v. the United Kingdom, cited
above, the exercise of that discretion did not benefit from any
specialist knowledge offered by the members of the tribunal in
question. Accordingly, there was no compelling reason for the
decision on the level of compensation to have been made by the Army
Board, rather than by an independent and impartial tribunal. In this
respect, therefore, the Court considers that the circumstances are
similar to those in Tsfayo. There will therefore be a breach
of Article 6 unless in the particular circumstances of the case the
judicial review proceedings offered “sufficiency of review”
such as to ensure that the requirements of Article 6 regarding the
independence and impartiality of the tribunal were met.
- On
this question, the Court notes that unlike in Tsfayo, the
dispute between the parties in the present application did not centre
on a question of fact determined by the Army Board which the High
Court had no jurisdiction to revisit. The central issue in the
applicant's case was whether the approach of the Army Board in
assessing the level of the compensation order was appropriate. The
Court considers it significant that in its October 2003 judgment, the
High Court examined in some detail how the Army Board had arrived at
the figure offered. It is clear that the applicant's criticisms were
carefully examined by the court, which reached its decision following
an analysis of the approach of the Army Board and an assessment of
whether or not that approach was reasonable in the circumstances. As
regards the applicant's first criticism concerning the exercise of
the Army Board's discretion in calculating the award on the basis of
a six-year cut-off date, the High Court was able to review all the
relevant factors relating to the decision of the Army Board and to
assess whether the approach taken was appropriate. The criticism was
rejected on the ground that the Army Board had acted entirely
properly in selecting a six year cut-off date for the calculation. In
respect of the second criticism regarding the salary base used for
the calculation of the compensation award, the Court observes that in
so far as there was a factual dispute between the parties as to the
applicant's salary at the time of the redundancy, the question of
fact was in the event revisited: the High Court had regard to papers
submitted by the applicant supporting his argument that an incorrect
salary base had been used and concluded that further investigation
was required. Accordingly, the matter was reviewed by the Army Board,
which subsequently made a substantially increased offer of
compensation. The applicant does not dispute that the revised salary
base used was correct.
- Having
regard to the relevant factors as outlined in Tsfayo, the
Court concludes that the High Court on judicial review did have
“sufficiency of review” to remedy any lack of
independence of the Army Board. Although the High Court could not
substitute its own view as to an appropriate award in the
circumstances of the case, it could and did examine both the method
of calculation and the base figures used for the calculation. In the
applicant's case, it found the base figure to be inaccurate and
required the Army Board to review the calculation. The applicant's
complaint was therefore determined by an independent and impartial
tribunal
- There
has accordingly been no violation of Article 6 § 1 in this
regard.
II. ALLEGED VIOLATIONS OF OTHER ARTICLES OF THE CONVENTION
- The
applicant complained under Article 8 of the Convention that the wrong
reason was given for his discharge from the armed forces and that the
reason given carried a stigma which had a negative effect on his
future employment prospects. He further complained under Article 13
about the fact that the award of compensation did not take into
account his expenses in bringing the claim. Finally, he complained
under Article 14 of the Convention that he had been the victim of
discrimination as he was unable to afford proper representation and,
as a result, his status and standing were called into question.
- In
the light of all the material in its possession, and in so far as the
matters complained of were within its competence, the Court finds no
appearance of a violation of the rights and freedoms set out in the
Convention or its Protocols arising from these complaints.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- The
applicant did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award him any sum on
that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints under Article 6
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention in respect of the length of the
proceedings;
- Holds that there has been no violation of
Article 6 § 1 of the Convention in respect of the independence
and impartiality of the tribunal determining the proceedings.
Done in English, and notified in writing on 27 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Lech Garlicki
Deputy Registrar President
