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Mr. Beith: The Secretary of State has explained well why he has brought the Bill to this point, and I accept his reason. However, does he recognise, as the Constitutional Affairs Committee report indicates, that a problem has arisen? It is that a soldier could be tried for a murder that is alleged to have been committed in the United Kingdom, and convicted by three votes to two. That would not have happened to him if he had gone to the civilian court.
I have not given that serious consideration. I understand that that issue has only recently arisen in the light of the report. The matter will certainly be given serious consideration in the course of our deliberations. One of the great strengths of the
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manner of investigating as well as debating the Bill is the hybrid nature of the Committee, which compensates for the length of time that is often taken. I am sure that that question will be considered during the course of our deliberations.
Dr. Liam Fox (Woodspring) (Con): It is worth pointing out that a court martial already has the ability to deal with charges such as murder on a 5:2 verdict if they occur overseas, so the position is not entirely inconsistent. Now that there is to be concomitant civil and military jurisdictions, and following further discussions between the Secretary of State and the Attorney-General, where exactly will the priority lie, when there is a choice, in deciding whether a case should be heard by a court martial or a Crown court?
John Reid: That is not a new problem. Joint jurisdiction already operates in such cases. In response to my inquiries, I can tell the House that cases that could be tried under military law have not be allocated to the civilian law courts without the agreement of the service authorities.
Mr. Philip Hollobone (Kettering) (Con): I appreciate the Secretary of State's intention in introducing the Bill, but is there not a danger in complicated cases such as those following incidents in Northern Ireland? In retrospect, Her Majesty's armed forces who were engaged in ambushes on terrorists fleeing the scene could be prosecuted more easily for murder, although they were following the rules of engagement laid down by their commanding officer.
John Reid: I do not think that the situation has changed. Indeed, we want to try to make sure that there is not a blockage with summary dismissal in the military system that prevents it from being considered at any other stage and therefore compels such cases to go to the civilian system. We want to remove that blockage to ensure that, as far as is humanly possible, the person who looks at the evidence with a view to prosecutionthe director of service prosecutionsnot only considers the evidential test and the public interest but has experience of a military or combat situation. That is more important than ever, given, as I mentioned earlier, the asymmetric nature of warfare. Things that were regarded as unreasonable 20 or 30 years ago may, given the advent of suicide bombers who pretend to be prisoners and given other developments, now be considered reasonable. Actions that were considered beyond the bounds some time ago may now be considered reasonable, because of changed circumstances, not because of changes in the actions themselves. The person who is best placed to weigh the evidence of offence against mitigating circumstances is the director of service prosecutions, which is why I am trying to ensure that, as far as humanly possible, they make those decisions, independent of the chain of command, the Secretary of State and the civilian system.
As long as we fail to tackle the problem, cases such as the Trooper Williams case could reoccur. I want to try to avoid that, and it is my strong belief that it can be avoided. All offences can be dealt with properly under service law. The court martial is, and will remain, a court that complies with the European convention on human rights. It is right that even the most serious cases should be resolved within the service system once proceedings have begun. As we told the Defence Committee more than a year ago in a proposal that it described as "sensible", the Bill will remove the power of commanding officers to dismiss such serious offences in the manner described, thus protecting the whole military system from gradual encroachment by the civilian system.
John Reid: No. They can apply for a court martial on a range of offences, but they cannot opt out in favour of the civilian system. They are members of the armed forces, and are subject to military discipline. We are trying to make sure that that military discipline and the military system itself can, as far as possible, deal with the most serious offences.
Mr. Gerald Howarth: I understand the right hon. Gentleman's desire to keep matters within the military family, so to speak. He said that as a result of the dismissal of the case of Trooper Williams by the commanding officer no further military action could be taken and the case could therefore be handled only by the civilian courts. The Secretary of State wants to interpose the military court instead of the civilian court, but that does not justify taking away from the commanding officer the power, particularly in the heat of battle and in the circumstances that we face in Iraq, to dismiss a case there and then. The right hon. Gentleman is in danger of eliding the two issues, but they are separate. Will he address that?
John Reid: In the heat of battle, the commanding officer would wish to reflect. That, I take it, is accepted. He would wish, presumably, to take advice, to consult, to have a hearing on an offence committed in the heat of battle such as murder or rape or another sexual offence. The problem is that summarily dismissing an offence of such seriousness without a hearing, which is what happens under the present system, creates a situation where, no matter who else in the military may feel that that decision was wrong, it cannot be dealt with further in the military. That is precisely the situation that arose in the case of Trooper Williams, which was the route whereby the matter was referred to the civilian court.
If we contain such serious offences within the military, so that they have to be decided by the director of public prosecutions[Interruption.] Yes, I beg the House's pardon. If we ensure that the director of service prosecutions is the responsible body, we prevent another Trooper Williams case. Incidentally, although this was not the primary reason, the commanding officer is then freed up for the responsibility of giving succour, support, assistance and advice to his man or woman who is accused of the crime. There is no conflict of
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interest then between the commanding officer's duty of care to the individual concerned and the director of service prosecutions bringing a prosecution. By taking away the summary right to dismiss cases as serious as those described, without even a hearing, we are protecting the system from the course of events that caused the civilian system to intervene.
Mr. Howarth: I am extremely grateful to the Secretary of State. If, in the heat of battle, the commanding officer dismisses a casehe knows the man, he knows the circumstances and he can see that there is no case to answerand if subsequently it is perceived that that was a wrong decision which was entirely without foundation, in the present circumstances the case would have to be dealt with by the civilian courts. Why not leave it to the director of service prosecutions, on the basis of information laid by authority, to deal with the matter within the service, still leaving the commanding officer with the latitude to deal summarily with a difficult case?
John Reid: The hon. Gentleman is asking me to square a circle, which cannot be done. One cannot give absolute authority to the commanding officer summarily to dismiss a case and then say that the director of service prosecutions may overrule that authorityone cannot have both things. The ultimate arbiter on serious offences must be either within the armed forces or the commanding officer. If one chooses the commanding officer, problems arise in circumstances such as the Trooper Williams case, because there is no other place in the military where such a case can be tried by virtue of the fact that the absolute powers on summary dismissal lie with the commanding officer.
When the Trooper Williams case was referred to the Attorney-General, the Attorney-General had no recourse other than the civilian courts, and I am protecting us against that occurring again. I accept that in the real world there is no ideal solution that would give the absolute power of decision both to the director of service prosecutions and to the commanding officer. I understand that any decision will have a downside, but I contend that for the armed forces as a whole, including the chain of command, which will be free to give succour and support to an individual accused by the director of service prosecutions under the commanding officer's care of duty, the upside far outweighs the downside. In the Trooper Williams case, the downside was the furore caused by its referral outside the services.
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