## Facts

- John Boyle was a gunner in the British Army stationed in Germany.
- A woman alleged she had been raped, and Boyle and two other soldiers were arrested by service police in early November 1999.
- Boyle was interviewed by the service police; he received assistance from an officer in Army Legal Services during the interview and was informed of certain procedural rights under the military system.
- Boyle’s unit commanding officer (CO) charged him and referred the case to a higher authority because of the seriousness of the allegation.
- Under the applicable rules, the higher authority retained the ability to remit the case back down the chain of command for prosecution, which meant the CO’s role in the case was not purely administrative or finished once he referred the matter onward.
- After charging Boyle, the CO ordered Boyle to be held in “close arrest,” meaning detention in a locked military correctional facility pending trial.
- Boyle remained in the correctional facility for approximately two months.
- During this period of close arrest, Boyle was not provided with a lawyer of his choosing, and he was not given documentation setting out the reasons for his continued detention in close arrest.
- Boyle’s family retained a private lawyer, who sought his release into “open arrest” (return to a military unit under restrictions rather than confinement in a locked facility).
- Boyle was later moved from close arrest to open arrest pending trial.
- Boyle and his co-accused were tried by court-martial and were acquitted.
- Boyle applied to the European Court of Human Rights, alleging that his pretrial detention arrangements violated Article 5 § 3 of the European Convention on Human Rights because the CO who ordered close arrest was not independent and impartial given his disciplinary and prosecutorial connections to the case.

## Issues

1. Whether a unit commanding officer who charged a soldier and remained linked to the prosecution and discipline of the unit qualified as a “judge or other officer authorised by law to exercise judicial power” for purposes of Article 5 § 3 when ordering and maintaining close arrest.
2. Whether the absence of a prompt appearance before an independent judicial authority, in a system where close arrest was ordered within the chain of command, resulted in a breach of Article 5 § 3.

## Decision

- The European Court of Human Rights found a violation of Article 5 § 3.
- The Court held that Boyle was not brought promptly before a “judge or other officer” meeting the Convention standard of independence and impartiality.
- The unit CO could not satisfy Article 5 § 3 because he combined roles connected to discipline and prosecution with the decision to remand Boyle in close arrest.
- The military remand decision was made within the command structure, and the features of the arrangement did not provide the type of independent judicial control required by Article 5 § 3.
- The Court granted just satisfaction under Article 41 (including awards for damage and/or costs and expenses).

## Legal Principles

- Article 5 § 3 requires that a person arrested or detained on suspicion of an offence be brought promptly before a decision-maker who is independent of the executive and the parties and who is authorised to exercise judicial power.
- Independence and impartiality under Article 5 § 3 are assessed objectively by reference to the decision-maker’s functions and institutional position, not by personal good faith.
- A military officer who has responsibility for unit discipline and who performs a role connected to the initiation or continuation of prosecution cannot, without adequate separation and guarantees, serve as the Article 5 § 3 authority for remand decisions.
- The Article 5 § 3 authority must be capable of reviewing the justification for detention and ordering release; review that remains within the prosecutorial/disciplinary chain of command does not meet the Convention standard.

## Conclusion

Boyle v. United Kingdom holds that the United Kingdom breached Article 5 § 3 when a unit commanding officer—responsible for discipline and connected to the prosecution decision—ordered Boyle’s close arrest without prompt control by an independent judicial authority, so Boyle’s pretrial detention was not subjected to the level of impartial, external review required by the Convention.


Boyle v. United Kingdom, 47 Eur. Hum. Rgt. Rptr. 19 (2008)