Dismissed soldier takes case to European court

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The Independent Online

Defence Correspondent

A British soldier dismissed by a court martial in 1991 yesterday won the right to refer his case to the European Court of Human Rights.

The military court reduced Alex Findlay in rank and dismissed him from the British Army for threatening fellow soldiers while allegedly suffering from post-traumatic stress disorder following service in the Falklands in 1982. His case threatens to overthrow the independent system of military law in Britain and has influenced changes in the Armed Forces' Bill, announced in the Queen's Speech last month.

But last night the Ministry of Defence said: "We did not think we at any time breached the European Convention on Human Rights." It said the challenge was based on the way the military justice system was closely tied in with the management and discipline of the armed forces.

Mr Findlay joined the Scots Guards in 1980. He served in the Falklands in 1982, when the battalion played a decisive role in breaking the Argentine defences on the approaches to the capital, Port Stanley. He suffered a back injury during training in 1987 and in 1990, as a lance sergeant (equivalent to corporal in most units), was alleged to have held members of his unit at pistol point after a drinking session in Northern Ireland. He allegedly held a pistol to one soldier's head.

In 1991 he was convicted by a court martial and sentenced to two years' in prison. In 1992 he applied for a judicial review but the High Court ruled that his conviction under the Army Act was legal. He then appealed to the European Commission of Human Rights which yesterday referred his case to the European Court.

His claim centred on the grounds that the "convening officer" decided the charges, where the court should be held, the appointment of prosecutors and the confirming officer. He claimed the "chain of command" exercised undue influence - in contrast to civil law when the executive is distinct from the judiciary.

The convening officer's role is to be examined in the revision of the Armed Forces' Bill next year. It will also examine the appeals process and enhance the role of the Judge Advocate General - the Army's chief legal officer. Finally, it will review the current arrangements which favour summary justice by the commanding officer - whether the accused will accept his award or elect trial by court martial. Soldiers on a charge usually elect for the former.

t A black Briton who claims his 1991 trial for robbery was tainted by racism has been given clearance to take the Government to the European Court of Human Rights. David Gregory, 29, was jailed for six years and is now in Leyland prison, Lancashire. He criticised the handling of the trial at Manchester Crown Court, during which the judge had to deal with a race problem among the jury.

His case will be that the fact of the racism, and the way it was tackled by judge and lawyers, led to an unfair trial in breach of guarantees of impartiality enshrined in the Human Rights Convention, to which Britain is a signatory.