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Mr. Simon: That is a false prospectus. The hon. Gentleman has said that there cannot be a situation in which the commanding officer is forced to say, “I’m sorry son. You’re on your own.” That line is actually a given part of the transaction at all times. If some dodgy squaddie who has murdered an old lady turns up in the commanding officer’s office and says, “I’m sorry governor, I have just murdered an old lady,” the
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commanding officer would not say, “Don’t worry Hughes, I will look after you.” The commanding officer would say, “I’m sorry son. You’re on your own.”

Mr. Benyon: The hon. Gentleman is being unrealistic. He cannot suggest that the SIB would be not involved in such a serious case.

Mr. Touhig: I recognise the concerns raised by Conservative Members. When the hon. Member for Aldershot raised the matter in Select Committee on 20 March, I sought to assuage his concerns by discussing the relationship between the director of service prosecutions and the commanding officer:

I went on to discuss the written guidance, which was pooh-poohed a moment ago. My point in Select Committee was that under the proposed guidance the service police would be obliged to act in a certain regard. I sought to assuage the concerns of Conservative Members by pointing out that there would be a positive and important link between the role of the commanding officer and the service police in any investigation. We cannot wipe out the role of the commanding officer in that respect.

Mr. Benyon: In his former position, the hon. Gentleman tried to move towards the view advanced by my hon. Friend the Member for Aldershot (Mr. Howarth), but it is not good enough to put the point in written guidance, because it needs to be on the face of the Bill to provide the necessary security. The amendment tabled by my hon. Friend the Member for Aldershot sought to incorporate into the Bill the need for the commanding officer to be part of the process.

Mr. Brazier: My hon. Friend has been confronted with the ridiculous example of someone who murdered an old lady, but there is the much more relevant example of someone who killed a young lady: Private Clegg, who shot a woman at a roadblock and was convicted because the case was tried through the civil process as murder. That judgment was overturned only after two appeals, but if the case had been considered in a military context from the beginning, it might well never have gone to court.

Mr. Benyon: I could go into the case of Private Ian Thain, with whom I served in Northern Ireland, which has haunted me down the years. He was required to take a decision in the most difficult circumstances. The matter was taken out of the hands of military forces, which should have been able to protect him, and he was convicted of a murder that he did not commit. He went to prison as a criminal and served a sentence with some of the most hardened criminals in this country. That case has haunted me, and it will continue to haunt me so long as clauses such as this continue to come before this House. All I want to do is to incorporate the simplest protection into the Bill.

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Lord Boyce has been quoted more often in this debate than Lord Goldsmith has ever been quoted in the context of other legislation, and I shall quote him again:

The failure to involve someone in the prosecution of a crime who understands the context of that crime puts at risk the unique relationship in our armed forces between a commanding officer and the men who serve under him.

Mr. Hancock: I am surprised by the way in which the debate has gone, because hon. Members have not read the introduction to the clause, which states:

Clause 116 is all about the actions that occur after the service police or civilian police have carried out an investigation, and the list in schedule 2 covers everything from treason to murder to child abuse to child pornography. Are hon. Members really arguing that the commanding officer should be able to carry out such investigations? I would urge those Members who have not done so to read the report by the Surrey police into the events at Deepcut—not so much on the deaths of the four young people but the many examples that they gave of genuine complaints by members of our armed forces about abuse that they suffered, including serious sexual assaults, which were never investigated by the service police or by the civilian police. The Surrey police were extraordinarily critical of the chain of command that allowed such serious allegations to go unchallenged.

8 pm

I understand that when this was discussed in Committee, colleagues supported the view that the commanding officer should be informed about investigations into schedule 2 offences. I think that he has every right to be informed, but not for him then to be able to make a judgment on whether the case should be pursued. One would imagine that if a police officer, whether service or civilian, was investigating something as serious as a crime outlined in schedule 2, they would have sufficient evidence to be able to take the case further. There is clearly an obligation placed on the investigating officer that they must have substantial evidence to take the matter further.

Mr. Brazier: The hon. Gentleman and I served together for a long time on the Defence Committee, and I know of his close interest in and family connections with service matters. He mentioned areas such as child pornography which are a long way away from the serviceman’s job. Does he accept that in crimes such as a shooting under very difficult and uncertain circumstances, the commanding officer has an insight into that which an investigatory team, who have perhaps come out of an air-conditioned office, will not necessarily have?

Mr. Hancock: I cannot imagine any set of circumstances in which a soldier, or any other service
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personnel member, was accused of discharging a weapon in such a way that somebody was killed or injured that would not involve the commanding officer, who could not be left out of the loop in the initial investigations that would have to take place. The problem in Iraq is that there are insufficient military policemen to be able to help our service personnel to perform some of their duties. People who have been there recently, including some of our colleagues in this House, will tell us that.

The hon. Member for Newark (Patrick Mercer) was good enough to recognise that until 1970, the situation was governed by a different style of soldiering and chain of command. Ireland changed that because of the type of confrontation that was faced daily by our armed forces over those 30-odd years. There were always going to be very difficult circumstances when weapons were fired, people were killed and soldiers were prosecuted through the civilian courts or action was taken through the military courts. Ireland was never going to be an easy situation.

The Bill provides a much clearer definition of the way in which these matters will be resolved. I believe that clause 116 is helpful. There was a situation in my constituency that involved naval personnel and civilian personnel working for the Navy who were all, to one degree or another, charged with offences relating to child pornography. The civilian was punished quite severely, while the service personnel were dealt with through the chain of command and virtually got away with a warning, in respect of almost identical crimes. That case has gone to the desk of the Minister, because, rightly, the civilian involved felt that he had been treated differently.

I am not wedded to the idea that the chain of command is always right. It does not end with the Chief of the Defence Staff. There is a chain of command above that—the political bosses at the MOD, under whichever party, who set the parameters. The Bill is not driven by the views of the Chief of the Defence Staff, but by the need to reform armed forces legislation to bring it into the 21st century and to deal with the way in which service personnel should expect to be dealt with. The chain of command is by no means perfect, as the hon. Member for Newark was generous enough to admit. It cannot be right for us to say that we are wedded to it under any circumstances. If any individual in our armed forces has a serious allegation under schedule 2 being pursued against them, there is a duty and a responsibility for that to go further, and for it not to remain in-house and within the command structure. Anything short of that would enhance the public’s perception of the armed forces being treated differently, and that cannot and should not be the case. This is about is having a level playing field so that everyone clearly understands that if they are investigated for a schedule 2 offence, it will not stay in-house but will go straight to the civilian authorities or to the Crown Prosecution Service.

Mr. Kevan Jones: Does the hon. Gentleman agree that it is not just about a level playing field but about, first, giving the accused protection in terms of knowing that the alleged crime is being investigated properly and that the evidence has been gathered; and secondly, that if the prosecution goes ahead it is based on the
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evidence that has been collected near to where the crime was committed, whereas if the case had been dismissed and reinvestigated later on, things might have been lost?

Mr. Hancock: The hon. Gentleman is right. I am sure that his remarks are borne out by the hours of evidence that he took in the Armed Forces Bill Committee and in the Defence Committee. We have had that explained to us time and again. The Minister of State, who is in his place, has a lot of credit coming his way for genuinely believing—I am sure that his new boss and the former Secretary of State share the same view—that the duty of care is to our serving personnel and to their families, as well as to the victims of crimes that are perpetrated by members of the armed forces. It is not an exclusive club whereby the military only look after their own—their duty of care goes way beyond that. That is what this clause of this much-needed Bill gets to the heart of, and the Committee should not be prevailed upon to go along with voting against its standing part.

Patrick Mercer: I entirely agree with the hon. Gentleman that it is not an exclusive club. It has to be an organisation that is entirely visible to the outside. However, this band of brothers is called upon to do extraordinary things, and I suggest that in those extraordinary circumstances it needs extraordinary powers.

Mr. Hancock: I do not disagree. Of course, this band of brothers, for want of a better phrase, does need support, but it also needs the integrity of the law that says that it will be treated it on an equal basis with the victims of any allegation that might be made against it. The public perception is that in so many of these cases the military are able to be their own judge and jury.

The Surrey police report was a lesson that we can allow things to go unchallenged only for so long. It was a rather cosy coincidence that it was put forward so strongly that that all the issues were dealt with properly under the chain of command. It was obvious to the Surrey police that many of the men and women who gave evidence to them felt that they had been manifestly let down by the “god” of the commanding officer or the ability of the commanding officer to see through a fictitious allegation. Sadly, many of our armed forces men and women felt badly let down in that situation. The Bill will give them greater hope that there will be equality under the law and in the law as regards our armed forces.

Mr. Gerald Howarth: We have had an interesting and good debate. My hon. Friend the Member for Newbury (Mr. Benyon) brought passion and personal experience to it, which, along with the contribution of my hon. Friend the Member for Newark (Patrick Mercer), illuminated our discussions. They both showed that the perspective from which we must view the Bill is not that of what happens in a brawl on a Saturday night in Aldershot or Colchester, but what happens on the front line on operations.

Our armed forces have never been so involved in operations as in recent years. We have all seen—
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because television is there today—the circumstances in which they fight. We therefore have a duty to examine the provision from the point of view of its impact on our armed forces on the front line. It is inevitable that we are more concerned with the Army than the other two services because of the way in which the Army fights. The Royal Air Force pilot who fires a missile will not see the enemy. Those on a naval vessel who use bombardment may not see the enemy, but the soldier does. Indeed, the soldier is often required to engage in hand-to-hand combat.

I pay tribute to my hon. Friend the Member for Canterbury (Mr. Brazier), not only for his kind support to me but for the way in which he opened the debate a couple of hours ago. I am most grateful to him. He is right that the clause and the associated provisions—we are holding only one stand part debate, but several related clauses go to the heart of the measure—represent the most significant change that the Bill makes to existing practice. The chain of command is at the heart of that key debate.

The expertise of senior officers on the ground who have first-hand understanding of the conditions that their troops face has long been essential in deciding whether split-second decisions made by soldiers in danger should lead to prosecution. My hon. Friend the Member for Newbury graphically illustrated that from his experience. Until now, we trusted those in a position of command to decide whether those under their command should face prosecution for their actions while carrying out their duty in good faith. As I have said previously, the Bill removes that trust.

Under current arrangements, commanding officers examine an incident and are informed by their knowledge of the military context—the operational circumstances—in deciding whether there is a case to answer. Under the Bill, if an incident occurs or an accusation of a serious offence is made, the case will be passed by a service policeman directly to the service prosecuting authority for a perhaps lengthy investigation.

In the Select Committee, I asked the hon. Member for Islwyn (Mr. Touhig) whether he could guarantee that the arrangements would not lead to more investigations that resulted in legal proceedings. He could not give me the cast-iron guarantee that I sought. Let me therefore pose the question again and perhaps the Under-Secretary can assist. Will the service prosecuting authority resemble its civilian counterpart in that it will base its decisions to prosecute on the likelihood of securing a conviction rather than on a proper understanding of the circumstances that led to the alleged event?

Lord Boyce has been much quoted this evening. I shall quote him accurately, for the benefit of the hon. Member for North Durham (Mr. Jones). When he gave evidence to the Select Committee, he said that there was a “feeling of legal encirclement” among members of our armed forces. He said that the removal of the power of a commanding officer based on the facts and the situation on the ground to dismiss a charge against a serviceman risks adding to that feeling. Let me put Lord Boyce’s remarks in context. He also said:

Mr. Kevan Jones: Will the hon. Gentleman give way?

Mr. Howarth: I shall not at this stage because the hon. Gentleman has quoted Lord Boyce enough and it is fair to put the noble Lord on the record.

Lord Boyce also warned that tampering with military command could damage operational effectiveness. He said of a commanding officer:

That is the issue before us tonight. We must ensure that we do nothing that fractures that authority.

After visiting those on deployment, the Select Committee concluded that there had not been much opposition in the Army to the Bill’s proposed changes. Although I accept that, we must realise that the proposals in the Bill have hardly sunk in at all in the military. I do not especially blame the Government. The guys are out there trying to fight a war and they have no time to start assessing the niceties of the legal position. Although the people to whom we spoke had been briefed, I suspect that some had been briefed only a little in advance of our visit. Some of the changes will take time to make an impact.

8.15 pm

As has been said, the change that the Government propose results partly from the Trooper Williams case, in which the commanding officer, on legal military advice, dismissed a charge of murder against Trooper Williams, who was said to have shot an innocent Iraqi. More senior military lawyers believed that the advice was wrong, but could not reopen the case and the Army high command felt under political pressure, in the grotesque phrase that Sir Alistair Irwin used, to “offer for prosecution” Trooper Williams. That could be done only through the civil courts.

Sir Alistair Irwin said that with the

I have said it before, and I repeat that I find it reprehensible that a senior officer used the expression “offer for prosecution” about one of the men under his command. I do not believe that Pontius Pilate would have used that expression.

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