---

Mr. Hancock: I am not unsympathetic to the hon. Gentleman's point, but will he furnish us with evidence to show that many miscarriages of justice at tribunals or courts martial have occurred and that custodial sentences have been overturned at subsequent hearings?

Mr. Cohen: I am about to provide some evidence. When conducting research in the House of Commons Library, I found an article written by my hon. Friend the Member for Falkirk, West (Mr. Joyce) for the Fabian Review in March 1999, in which he said:

"This reminds me that I acted judge and jury at a Court Martial while writing the pamphlet"--

I shall refer to that shortly--

"and sentenced a young soldier to life for murder. He is now perhaps the only lifer in Britain who did not receive a trial by a jury of his peers. He should be the last."

That is evidence.

The Fabian Society pamphlet entitled "Arms and the Man--Renewing the armed services" was written earlier. It states:

"There can be no doubt that we need an in-house disciplinary structure; but we should now question whether it should have the force of civilian law. We should also question whether it is now appropriate that soldiers charged with very serious crimes in a

2 Apr 2001 : Column 88

peacetime context, for which a guilty verdict will lead to imprisonment in a civilian prison, should be routinely denied a jury of their peers."

Being "routinely denied" such a jury is unsatisfactory. People should not be sitting in jail without having a jury trial in serious cases.

Mr. Blunt: I have watched the operation of the civilian and military justice systems. Someone is far more likely to get a fair trial under the military than the civilian system. If the principle holds for a lesser offence, why should it not hold for the most serious offences? Is the hon. Gentleman suggesting that there was a miscarriage of justice in the example that he gave?

Mr. Cohen: I do not share the hon. Gentleman's view. Trial by a jury of peers for the most serious offences is a fundamental tenet of British civilian law. There is also an important human rights element. People might well take their cases to European Court of Human Rights and claim that their rights had been infringed by not receiving a jury trial. We shall see what happens in that respect.

7.30 pm

In the pamphlet that he wrote for the Fabians, my hon. Friend the Member for Falkirk, West talked about a legal time bomb, He was really referring to other matters, but this, too, could be a legal time bomb.

Mr. Hancock: It is important to note, when quoting a case such as the one that the hon. Gentleman has described of a service man who was tried for murder and found guilty under court martial procedures, that that service man could have been represented by civilian legal advisers, and probably was. We shall no doubt hear that that was the case. We also need to know why that case was tried under military law rather than under civilian law. Will the hon. Gentleman explain more of the background to the case?

Mr. Cohen: The basis of my argument is that cases involving serious offences should be tried under civil law and an independent judge. There are dangers in armed forces personnel trying such cases, even if they are not associated with the defendant's regiment. That is because they share a similar ethos with other commanding officers. It is important to have independent judges and public hearings. I know that most courts martial have public hearings, but they also have the ability to sit in camera. That could represent a serious abuse of a defendant's rights.

Mr. Blunt: I do not understand the distinction that the hon. Gentleman is drawing between serious offences and other offences. All offences in which a defendant comes before a justice system are likely to be serious if that defendant is likely to end up in prison. I am not sure, therefore, why the hon. Gentleman does not simply extend his argument to the whole of the courts martial system. Why should there be a particular cut-off point? Either the courts martial system is just or it is not. In my judgment, and that of the military as a whole, it is. The system is held in great respect, and we change it at our peril. Will he pursue that point?

Mr. Cohen: The cut-off point is when someone could go to jail for an offence. That is very serious. If it is

2 Apr 2001 : Column 89

possible that someone could go to jail, they should have the right to a jury trial and a civilian hearing. If their alleged offence did not carry a jail sentence, it would be more akin to a disciplinary matter for an employment tribunal. That could then be dealt with under military law--not by disciplinary courts but by ordinary tribunals such as those used by employers generally.

Mr. Blunt: I want to be absolutely clear that the hon. Gentleman is saying that the whole of the military justice system should be ended. Even a commanding officer, under summary justice procedure, has the capacity--

The Chairman: Order. The hon. Gentleman convinces me that we are getting wildly off the point. The schedule is not about whether there should be courts martial, but about the sentences that should apply. I would appreciate it if hon. Members brought their remarks back to that rather narrower point.

Mr. Cohen: I chose to speak on this schedule because it is about required custodial sentences, and I do not think that the courts martial system is appropriate for cases that carry those sentences.

Mr. Gerald Howarth: Will the hon. Gentleman tell the Committee how many service men and service women are currently being held in custody under the schedule?

Mr. Cohen: Clearly the gentleman referred to in the article by my hon. Friend the Member for Falkirk, West is in jail. Perhaps it is right that he should be--it almost certainly is. However, he is in jail without having had a jury trial. That is a good question to ask the Minister: how many other people are in jail without having had a jury trial? That is the aspect of this matter that I find offensive.

The Government responded to the case of Findlay v. the United Kingdom, which was a European Court of Human Rights judgment delivered in the late 1990s. In 1990, Lance-Sergeant Findlay, a service man serving in Northern Ireland, ran amok with a loaded pistol, threatening to kill himself and others. At a court martial in November 1991, he was sentenced to two years' imprisonment, a reduction of rank and a dishonourable discharge. He appealed to the European Court, saying that various aspects of the court martial had been unfair, and that the subsequent sentencing reviews contravened article 6 of the European convention on human rights. He also stated that he had not been given a reason

"for the level of sentence, and that subsequent post-hearing review procedures were largely administrative . . . On 21 January 1997 the ECHR held that the British court-martial system did breach Article 6 on the basis that it lacked independence and impartiality. The judgment stated:


. . . the applicant's fears about the independence of the court martial should be regarded as objectively justified particularly in view of the nature and extent of the Convening Officer's roles, the composition of the court martial, and its ad hoc nature.


Regarding the impartiality of the court-martial the European Court declared that:


. . . the tribunal must be subjectively free from personal prejudice or bias, and must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect."

The European Court also found against the system in other respects. That was a case in which someone received a custodial sentence, which is what the schedule deals

2 Apr 2001 : Column 90

with. That was a damaging judgment, and this part of the Bill contains the Ministry of Defence's response. I think that it is a very unsatisfactory response. Basically, it proposes applying summary proceedings against officers, which is likely to prove unsatisfactory. It also proposes abolishing naval disciplinary courts--I think that all the disciplinary courts should go--and that warrant officers should be able to serve on court martial panels. However, those warrant officers would not be able to serve on cases in which the accused person was of a higher rank. That is ridiculous, and a reflection of the hierarchical, class- ridden nature of the armed forces. That is like saying that a worker cannot sit on a jury if the defendant is a manager.

The MOD's response also proposes that the Attorney- General can refer court martial decisions to an appeal court if he thinks that the sentence is unduly light. The Ministry claims that that is the same as in the present civil procedure. However, the big difference is that, in the present civil procedure, there would have been an original trial by jury before the sentence was passed. That would not be the case in a court martial.

The Ministry's response also included a proposal to exclude most court martial proceedings from the possibility of a judicial review. That is a denial of a legal right.

The Chairman: Order. The hon. Gentleman is trying to hang far more on this schedule than is possible within the rules of order. He is developing a more general argument that falls outside the provisions of the schedule, and I must ask him to desist.

---