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Mr. Spellar: The hon. Gentleman responds to the mere mention of Europe as if he were the hon. Member for Pavlov, East. I remind him--as I reminded the Select Committee--that the 1996 legislation was passed in response to decisions made by the European Court of Human Rights. This Government, like all their predecessors since 1951, have taken account of such decisions and have shaped legislation to ensure that it is compliant. If the hon. Gentleman wants to take that matter further, he should do so with the people who were Conservative Ministers in 1996, or even much further back in time.
We believe that our proposals reinforce the fairness that is at the heart of the services discipline system. They do not imply any criticism of the way the present procedures are operated or of those who have responsibility for operating them.
The proposed changes, like those in the Armed Forces Act 1996, are concerned with establishing checks and balances, in a way proportionate to the need, in two areas not fully addressed in 1996. The first area covers arrangements for the pre-trial custody of persons being investigated or awaiting trial for alleged offences under the service discipline Acts. The second area is summary disciplinary proceedings--cases that are heard by the accused's commanding officer.
Some uncertainty about the need for the Bill was expressed in the other place. As was said in response to interventions, the measure is concerned with modifying certain procedures where there are concerns about compatibility with the European convention on human rights, as described in the explanatory notes. However, the House should be in no doubt that the European Court of Human Rights has already found--in the Hood case in 1998--against the United Kingdom in relation to the present arrangements for pre-trial custody. It did so on the basis that the commanding officer did not have the requisite degree of perceived independence to decide questions of extended custody. The convention article in play on this issue is article 5--the right to liberty and security.
There is no scope for arguing that summary proceedings are, on their own, compatible with article 6 of the convention--which provides the right to a fair trial. Again, that is largely because of the lack of independence of the commanding officer who hears such cases. Given that summary proceedings on their own do not provide a fair trial in convention terms, the question arises of what other procedures we should put around summary dealings to make them compliant. The firm advice is that the combination of the right of election to be tried by court martial and the right to appeal from summary hearings provide a set of procedures that are, in the round, compatible with the convention.
The Select Committee report suggested that providing a right of appeal in addition to a right to elect trial by court martial from the outset may be a form of over-insurance against future court rulings. That is not the
case. Without a right of appeal, anyone choosing to be dealt with summarily would be denied the possibility of eventual recourse to a compliant court. Although it may be argued that that is the individual's choice, the advice is that procedures should not rely too heavily on the individual creating conditions that are compatible with the convention. In any event, the new right of appeal will remove a disincentive to choosing to be dealt with summarily. Removing that disincentive will help to preserve the effectiveness of summary discipline.We are anxious not to add unreasonably to the already extensive burden of responsibilities shouldered by commanding officers--who are the key figures in maintaining and administering discipline in the armed forces. The Bill is designed with that in mind and provides the flexibility that commanding officers will need.
The substance of the Bill is in four parts. The first deals with pre-trial custody, the other three with summary proceedings. Clauses 1 to 10 contain our proposals relating to pre-trial custody. At present, the commanding officer has the main responsibility for deciding whether a suspect or the accused should be held in custody pending charge or trial. There are already safeguards to ensure that responsibility is exercised appropriately and that no one is held in custody unnecessarily--but they are all internal, involving the chain of command within the services.
The Bill strengthens these internal checks and formalises them in primary legislation. It requires the commanding officer to review the need for continuing custody no later than 12 and 36 hours after the time of arrest, applying Police and Criminal Evidence Act 1984 criteria. The Bill introduces external and independent checks in those relatively few instances where there may be a case for detaining an individual longer. In most cases, there will be sufficient information to determine whether there is a basis to prefer a charge before 48 hours have elapsed. However, if a commanding officer considers that continuing custody in excess of 48 hours is necessary while investigations continue, it is proposed that that should be subject to the approval of a judicial officer--on the basis of a custody hearing with the individual concerned present.
The judicial officer will reach his decision on criteria similar to those used by magistrates in the civil courts. PACE criteria relate to the need to demonstrate that inquiries are being conducted diligently and expeditiously and that more time is genuinely required to obtain and preserve evidence. If the judicial officer is not satisfied that those conditions are fulfilled, the individual must be released. In any event, the judicial officer may not approve custody beyond 96 hours.
Mr. John Wilkinson (Ruislip-Northwood): Would the Minister keep it in mind that the armed forces exist to fight? These matters need to be considered in the light of operational circumstances and the turmoil and heat of battle. At times, a period in excess of 48 hours may be wholly appropriate, but there will be no possibility of a legal officer getting to the scene or conducting a hearing. Ministers must bear in mind the reality that service men face in the conduct of their operational responsibilities.
Mr. Spellar: The hon. Gentleman might be surprised by the availability of video conferencing links between our many theatres of operation and the United Kingdom.
[Interruption.] If he would wait a moment, I could cover the areas that he raised. Many theatres of operation are in daily, broadband transmission contact with the UK. There have been dramatic changes in that area.Secondly, it is easy to describe the circumstances of battle in general terms, as the hon. Gentleman did. However, specific cases might make it a little harder to sustain the hon. Gentleman's argument. For example, questions were raised in the Defence Committee about personnel in the middle of a conflict, and a service representative pointed out that holding someone in custody would not necessarily be desirable. In a battle for survival, every individual would be wanted, armed and ready, to fight the enemy.
In other circumstances, it might be possible to move someone in custody away from the front and to a more secure position in the rear. That is quite traditional behaviour. We have to consider individual cases, and once the hon. Gentleman's arguments are considered in detail the requirements that we are placing will not seem as onerous as he thinks.
Our procedures provide that a judicial office may come not only from the individual's own service, but from the others. In addition, the officer may come from a jurisdiction in which the legal system is similar to ours. In many cases, joint operations take place with other forces. We have discussed this point with the services, and the provisions have been examined by them. They believe that our proposals are compliant with operations, as well as being compliant with the convention.
If the individual has not been charged after 96 hours, he must be released. Investigations into the alleged offence would continue, if necessary, after the 96-hour point. Neither the 48 nor 96-hour periods will be regarded as norms. The aim will remain either to charge or to release an individual as soon as possible.
We recognise that in a very few cases it will not be possible for the suspect and the judicial officer to be brought together for a custody hearing within 48 hours. The flexibility rightly built into the Bill will allow these hearings to be conducted by live television links or similar means. We envisage that these will, in some cases, be the most convenient method of conducting custody hearings, and developments in technology have convinced us of their feasibility. However, where it is genuinely not possible to meet the 48-hour requirement, the Bill provides leeway for the judicial officer to hear an application for extended custody after the 48-hour point.
Mr. Michael Fabricant (Lichfield): I fully understand the advantages of video links and so forth. However, the Minister is surely not suggesting that a video link--even broadband, or at different times of day, or when a ship is moving--is any substitute for a face-to-face hearing at which body language may be transmitted. Negotiations cannot be held over video links; they might as well be done by phone.
Mr. Spellar: Given some of the hon. Gentleman's other contributions to debates in the House, I am surprised that he is so dismissive of technology. However, we take the point--not just about body language, but about other potential influences in the room. Part of the modus
operandi for video linkage would be to get as wide a picture as possible, so as to obviate any suggestion of undue influence. Much of the work between theatre and joint headquarters is now undertaken by video linkage. Much of the world operates in that way and the services are increasingly doing so. Those facilities are more and more available in theatre.
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