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Mr. Deputy Speaker (Sir Alan Haselhurst): Order. I hope that that will not set the standard for the length of interventions this afternoon.
Dr. Moonie: I am not sure which section would apply to the hon. Gentleman. If he had listened carefully to what I said, he would understand his position in that context. I do not intend to repeat myself. It would depend on the circumstances in which the services were required.
I had hoped that the hon. Gentleman would be satisfied with the detailed explanation that I gave in Committee of the need for the clause because of the persons to whom the penal provisions within it apply. I accept that that was a complicated explanation, as it was this afternoon. The distinctions between groups of persons subject to service law can be quite subtle. The clause is aimed at those cases where an individual has been released from custody prior to trial and then fails to attend trial.
I recall that the hon. Gentleman was concerned in Committee that the maximum sentence of two years did not take into account the seriousness of absconding in extreme operational circumstances. However, he must remember that the penal provisions of the clause would not apply to service personnel. They are subject to the service discipline Acts at all times and could be charged with a far more serious offence if appropriate. The penal
provisions will apply where they are no longer subject to the service discipline Acts, but are being dealt with for an offence that they are alleged to have committed while they were.
The hon. Member for Gosport (Mr. Viggers) asserted in Committee that a person may well decide that a maximum penalty of only two years is not enough of a deterrent when faced with the possibility of being convicted for a very serious offence, and that he thus may abscond. We should remember that a sentence must be proportionate to the actual offence. One possible offence would be failing to attend court. The sentence must be approached separately from any sentence that is imposed for the offence that is the subject of the proceedings. If the accused is convicted of a serious offence, he will receive appropriate punishment for that offence.
To allow courts to impose long terms of imprisonment when the accused might be acquitted of the original offence would be out of proportion. The sentence is not and should not be linked to the substantive offence, no matter how serious that may be. I might add that the more serious the original offence is, the less likely it is that bail would be granted in the first place.
If a service man fails to attend, he is likely to be charged with being absent without leave, or with failure to attend a duty. Both offences carry a maximum penalty of two years. It should also be remembered that the Crown court cannot impose a sentence of more than 12 months for failure to attend trial, regardless of the gravity of the original offence.
I have given the amendments careful consideration, even though I am not prepared to accept them. However, I think that the Bill gets the matter just about right. The penalty should reflect the offence as it stands. It is appropriate and reasonably in line with civil practice, and I see no reason to change it.
Mr. Menzies Campbell:
First, I wish to apologise on behalf of my hon. Friend the Member for Hereford (Mr. Keetch), who took part in the Committee proceedings on this Bill but who cannot be here today because, long before the business was allocated, he had arranged to bring some 200 of his young constituents to visit the House of Commons. He is therefore occupied elsewhere during this debate.
I hope also that the hon. Member for Reigate (Mr. Blunt), who introduced the amendment, will forgive me a moment of levity. When he said that he might be called out in an emergency, I leaned over to the hon. Member for Chingford and Woodford Green (Mr. Duncan Smith) and said that, if that happened, gas masks and ration books would be issued at the same time. However, the Member for Reigate used himself as an interesting illustration of his interpretation of this part of the Bill.
It is always a risk to let the lawyers in, but I believe that the deletions proposed in the amendment would cause clause 4(5) to read:
The Minister's explanation of the possible punishment available under subsection (5) seems entirely reasonable. A penalty of up to two years' imprisonment for a failure to attend would be pretty high up the tariff scale, in anyone's view. One could argue that it was nearly draconian, given the powers available to the Crown court.
I understand the amendment's objective, but it and the others in the group would leave infelicitous language in the Bill if they were accepted. In addition, an unlimited punishment would be available for a failure to attend, and that would be going too far. For that reason, if the amendment were pressed to a vote, I could not recommend that Liberal Democrat Members support it.
Mr. Blunt:
I do not believe that the amendment would have the effect that the right hon. and learned Gentleman suggests. If the amendment were accepted, clause 5(4) would read:
Let us take the example of a person suspected of murdering a colleague. If the case against him could not be established and the circumstances were very extreme--such as those experienced by a unit cut off behind enemy lines--it might not be possible to spare two guys to detain him and lock him up. If the person appeared to be willing to continue to fight for his unit, the decision might be made simply to allow him to do so. The Bill is supposed to cater for all circumstances, whether for current operations or those carried out in wartime. We do not want two sets of disciplinary procedures.
The amendment would simply remove the tariff. I agree with the suggestion of the right hon. and learned Member for North-East Fife that the tariff implies that it is almost inconceivable that there will be such circumstances. It is almost inconceivable, but the Bill must cope with all the circumstances that the military might face.
The Minister has said that he will not accept the amendment, even after the opportunity that he has had for reflection since the Bill was considered in Committee. I will not be pressing the amendment to a Division. However, the Ministry of Defence will be considering legislation on these matters in future, with the next quinquennial Bill and the opportunity to bring the service discipline Acts together.
Mr. Clifton-Brown:
Has my hon. Fried considered circumstances in which a service man may be charged with a relatively minor offence while evidence is being gathered for a more serious offence with which to charge him? Given that he may abscond before the hearing, and assuming that almost enough evidence has been gathered for him to be charged with the serious offence, it might be appropriate to remand him in prison pending the more serious charge being brought against him.
Mr. Blunt:
I confess that I had not considered that possibility. However, it illustrates another reason for the Bill to be flexible enough to cope with every circumstance.
This is a minor point. The situation is unlikely to arise because we will not, I hope, be at war in the next few years when such circumstances might occur. We will have plenty of opportunity to return to these issues, particularly if the Government make progress on bringing the discipline Acts together in a tri-service discipline Act. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Key:
I beg to move amendment No. 2, in page 29, line 24, at end insert--
Mr. Deputy Speaker:
With this, it will be convenient to discuss amendment No. 3, in page 29, line 37, at end insert--
Mr. Key:
The amendments would allow reservists and other members of the Territorial Army to hold the post of judicial officer, either while on exercise with their respective service or when serving as a full-time reservist. May I say how nice it is to welcome the hon. Members for Crawley (Laura Moffatt) and for Ilford, South (Mr. Gapes) who served on the Committee that considered the Bill? I look forward to listening to their contributions this afternoon.
The Bill has many practical difficulties, and these we have made clear to the Government, right through the Committee stage. Unfortunately, the Government seem determined to drive the Bill through without listening to the Committee or the House. We will, as Her Majesty's Loyal Opposition, continue to try and improve what is clearly a flawed measure. The least that we can do for the armed forces is to try and make this wretched Bill work.
The amendments would widen the pool of those qualified to serve as judicial officers. It is clear that there will be insufficient barristers within the armed forces to cope with the proposed changes. Not only will barristers have to continue to prosecute and defend cases, they will now have to exercise their role as judicial officers.
A person guilty of an offence under this section shall be liable on conviction by court-martial to any less punishment provided by this Act.
I hope that I am not guilty of misreading the proposal, but that would be a rather infelicitous use of language to try to achieve the amendment's apparent objective.
A person guilty of an offence under this section shall be liable on conviction by court-martial to imprisonment or any less punishment provided by this Act.
The Minister gave the game away when he said that people charged with a serious offence would not be granted bail. That goes to the heart of why this and other parts of the Bill are defective. They do not take into account all the extreme circumstances faced by the armed forces. The simple fact is that, in extreme circumstances, people will be released on bail or from custody.
'or--
(c) they are a serving Officer in the Territorial Army or the Royal Auxiliary Air Force who also hold a current practising certificate, issued by the Bar Council, Law Society or Institute of Legal Executives, to practice as a Barrister, Solicitor or Fellow of the Institute of Legal Executives and who have at least two years post qualified experience'.
'or--
(c) they are a serving Officer in the Royal Naval Reserve who also hold a current practising certificate, issued by The Bar Council, Law Society or Institute of Legal Executives, to practice as a Barrister, Solicitor or Fellow of the Institute of Legal Executives and who have at least two years post qualified experience'.
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