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Select Committee on the Armed Forces Bill
The Committee consisted of the following Members:
Chairman:
Mr. George Howarth
†Baird, Vera (Redcar) (Lab)
Breed, Mr. Colin (South-East Cornwall) (LD)
†Burns, Mr. Simon (West Chelmsford) (Con)
†Burrowes, Mr. David (Enfield, Southgate) (Con)
†Campbell, Mr. Alan (Tynemouth) (Lab)
†Chapman, Ben (Wirral, South) (Lab)
†Howarth, Mr. Gerald (Aldershot) (Con)
Jones, Mr. Kevan (North Durham) (Lab)
Key, Robert (Salisbury) (Con)
†McCarthy-Fry, Sarah (Portsmouth, North) (Lab)
†Russell, Bob (Colchester) (LD)
†Sheridan, Jim (Paisley and Renfrewshire, North) (Lab)
†Touhig, Mr. Don (Parliamentary Under-Secretary of State for Defence)
Richard Cooke, Committee Clerk
† attended the Committee
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Tuesday 28 March 2006
(Afternoon)
[Mr. George Howarth in the Chair]
5 pm
Clauses 128 to 141 ordered to stand part of the Bill.
Clause 142
Officers and warrant officers qualified for membership of the SAC
The Parliamentary Under-Secretary of State for Defence (Mr. Don Touhig): I beg to move amendment No. 34, in clause 142, page 69, line 14, after “of” insert
The Chairman: With this it will be convenient to take Government amendments Nos. 35 to 37.
Mr. Touhig: In general terms, an officer is qualified to act as a member of a court if he has held a commission for at least three years, unless he was a warrant officer immediately before receiving his commission. A warrant officer is qualified to act as a member without a specified period of service because, having attained that rank, he will necessarily have served a significant period.
Some people are not permitted to sit as a member of a summary appeal court, such as service policemen, members of the prosecuting authority, members of the military court service, chaplains and other persons subject to service law who are legally qualified. Those exceptions are to avoid any risk of bias to the accused.
A summary appeal court panel, like a court martial panel, is not a jury, but in the light of changes to jury membership, we considered carefully in particular whether legal officers should be allowed to sit. We came to the conclusion that, because the service legal community is small, it would be difficult to empanel a legal officer who was unaware of a case or a number of cases at an assize and unknown to, or at least unfamiliar with, the prosecution and defence teams.
Empanelling legal officers was liable to become a disproportionate administrative burden. We therefore decided to continue the prohibition on them sitting in the summary appeal court and the court martial. A similar argument applies to service police. Chaplains, too, have traditionally been excluded from disciplinary processes, as we believe that for them to take part would compromise their spiritual and pastoral role in the armed forces, distinct from the chain of command.
I shall briefly explain the Government amendments. We realised in hindsight that we should ensure that everyone connected with the prosecuting authority
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should be excluded from sitting on the court martial panel. Amendment No. 34 therefore extends to persons on the staff of the prosecuting authority the exclusion from sitting on the court martial that applies to members of the prosecuting authority.
Amendment No. 35 substitutes the correct title of “RAF Chaplains branch” for “RAF Chaplaincy branch”. Unfortunately, the wrong title was used in the original instructions, and the amendment simply puts the matter right. Amendments Nos. 36 and 37 would correct the same errors in clause 155 in respect of the court martial.
Mr. Gerald Howarth (Aldershot) (Con): The amendments are perfectly sensible and we are happy to go along with them.
Amendment agreed to.
Amendment made: No. 35, in clause 142, page 69, line 17, leave out ‘Chaplaincy’ and insert ‘Chaplains”.—[Mr. Touhig.]
Clause 142, as amended, ordered to stand part of the Bill.
Clauses 143 to 154 ordered to stand part of the Bill.
Clause 155
Officers and warrant officers qualified for membership of the Court Martial
Amendments made: No. 36, in clause 155, page 75, line 15, after “of” insert
No. 37, in clause 155, page 75, line 18, leave out ‘Chaplaincy’ and insert ‘Chaplains”.—[Mr. Touhig.]
Clause 155, as amended, ordered to stand part of the Bill.
Clauses 156 to 158 ordered to stand part of the Bill.
Clause 159
Decisions of Court Martial: finding and sentence
Amendment proposed: No. 157, in clause 159, page 76, line 20, after “majority”, insert
‘of not less than 80 per cent’.—[Ben Chapman.]
Mr. Touhig: The key issue is whether there should be a simple majority or a four-fifths majority for decisions by the court martial on finding and on sentence. On first glance, a qualified majority of four fifths seems attractive, but it would create a number of difficulties. Swiftness and certainty are regarded as vital elements of the service system, so long as they are not at the expense of fairness. A number of hon. Members have urged the importance of this point; courts martial are geared to meeting the balance.
In a five-man court martial, the accused can be convicted or acquitted by a three to two vote. In a Crown court, a jury that does not reach the qualified majority is a hung jury. Such a vote in favour of an
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acquittal or conviction does not have force. Instead, there will usually be a complete retrial. The problem of successive trials has led the Crown Prosecution Service to adopt a policy of not seeking more than three trials in any one case. Three trials of a single case would not be acceptable in a service environment. The problems of such an approach are obvious.
Of course, my view would be different if there was reason to think that the results of existing simple majorities are unfair. I do not think that they are. First, the Judge Advocate General can and will advise the service members of the court that they should try to reach unanimity on the finding of guilt or innocence. Without doubt, this is good practice. Secondly, there are many courts in which a simple majority is enough. Magistrates courts are the obvious example, but it applies also to juries in Scotland.
Bob Russell (Colchester) (LD): In the Minister’s experience, how many magistrates make up a typical bench?
Mr. Touhig: When I used to cover Pontypool magistrates court, there would often be three magistrates on the bench. I hope that that answers the hon. Gentleman’s question.
In Scotland, a simple majority is enough in all solemn courts—the High Court and the sheriff court—where there is a jury. This includes juries dealing with the most serious offences. In courts abroad, simple majorities are commonplace.
Those are the key points, but there are usually devils in the detail of any provision for a qualified majority. For example, a figure of 80 per cent would work for a decision in a five-man court. However, given that more than 90 per cent of courts martial take place in three-men courts, a requirement for an 80 per cent majority would either rule out three-man courts or mean that any decision in a three-man court would have to be unanimous. This would impose an unnecessary burden on the services. Having heard my explanation, I hope that colleagues decide not to pursue the amendment.
Mr. Howarth: I think that we are all grateful to the Minister for taking us through the arguments on this amendment. Superficially, it sounds attractive to introduce a majority limitation for a five-man board, but as he rightly said, an 80 per cent majority could not be applied to a three-man board. There are some who would like to see all boards composed of a minimum of five members, which would not be in the interests of the speedy process of adjudication to which he referred. It would not lead to greater efficiency in the disciplinary system in our armed forces.
As the Minister knows, I attended Aldershot court martial in my constituency recently and I counted the number of people involved in the exercise. There were 10 people and that was with a three-man board. It is important that we recognise what we have said so oft in this Committee—we want to see the speedy and efficient dispensation of justice. Tying up large numbers of our armed forces, who are already heavily committed in other areas, would not achieve that objective.
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From the arguments the Minister made, the status quo is the right decision. If I may taunt him slightly—in a friendly fashion—the Judge Advocate General has made much of trying to harmonise military law with civilian law. Although there is a provision in the Crown court whereby majority verdicts can be reached, the Ministry of Defence is not seeking to harmonise courts martial in this respect. As I am a strong supporter of the principle that military law must be different, I am happy to agree with the Minister on this occasion. However, we can await a pronouncement from the Judge Advocate General, who is never slow to let us know his views on these matters.
Ben Chapman (Wirral, South) (Lab): I have listened carefully to the Minister and I am content with his explanations. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 159 ordered to stand part of the Bill.
Clauses 160 and 161 ordered to stand part of the Bill.
5.15 pm
Clause 162
Court Martial Rules
Mr. Touhig: I beg to move amendment No. 38, in clause 162, page 77, line 37, at end insert—
‘(ga) for appeals against any orders (including directions) of the court prohibiting or restricting the publication of any matter or excluding the public from any proceedings;’.
The Chairman: With this it will be convenient to discuss Government amendment No. 39.
Mr. Touhig: Amendment No. 38 fills a lacuna concerning court martial proceedings. In the Crown court, the media have a right of appeal against decisions to impose reporting or access restrictions. That right stems from section 159 of the Criminal Justice Act 1988. We did not extend that provision to court martial proceedings and, instead, continued to rely on the availability of judicial review. However, judicial review was removed under the Armed Forces Act 2001, but not replaced with another form of appeal.
I am sure that the Committee will recall that my officials, when giving evidence to this Committee, acknowledged that that is an unintended shortcoming in the provisions governing courts martial. It was certainly not done to constrain open justice or press freedom laws, and I am grateful to Nuala Cosgrove of the legal department of The Guardian, who wrote to me pointing out the gap in our provisions.
Hon. Members will also have seen the submissions made to them by other media organisations. We believe that there are no grounds for denying the media a right of appeal and the amendment will correct the position for courts martial. This is small amendment,
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but it is important and it will bring the position of courts martial broadly in line with that of the Crown court.
Amendment No. 39 provides for the extension of jurisdiction of the courts martial appeal court to consider appeals against a decision to restrict reporting of or access to a court martial. Section 49 of the Courts-Martial (Appeals) Act 1968 deals with the rules of the court, which regulate the procedure and practice to be followed by the appeal court. The amendment allows rules to be made in relation to those new appeals. I ask the Committee to accept it.
Amendment agreed to.
Amendment made: No. 39, in clause 162, page 78, line 25, at end insert—
‘(8) Rules made by virtue of paragraph (ga) of subsection (3) may confer jurisdiction on the Court Martial Appeal Court, and rules under section 49 of the Court Martial Appeals Act 1968 may make provision about the powers of that court in relation to appeals made by virtue of that paragraph.’.—[Mr. Touhig.]
Clause 162, as amended, ordered to stand part of the Bill.
Clause 163 ordered to stand part of the Bill.
Schedule 3
Civilians etc: modifications of Court Martial sentencing powers
Mr. Touhig: I beg to move amendment No. 54, in schedule 3, page 194, line 27, leave out “and”.
The Chairman: With this it will be convenient to discuss Government amendment No. 55.
Mr. Touhig: These amendments combine to add a sub-paragraph to paragraph 1(2) of the schedule in which a civilian offender is defined for the purpose of part 1. The effect is that the table of punishments in part 1 will apply only to a person who is a civilian at the time of the commission of the offence and remains a civilian until sentenced by the court martial.
If between commission of the offence and sentencing for it someone was a member of the armed forces, they would be sentenced instead under the table in part 2. The situation is unlikely to arise in practice, but should it arise it seems right that the punishments for former service personnel would be available. That is the purpose of the amendments.
Amendment agreed to.
Amendment made: No. 55, in schedule 3, page 194, line 28, at end insert—
(c) he remained a civilian throughout the period between committing the offence and being sentenced.’.—[Mr. Touhig.]
Schedule 3, as amended, agreed to.
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Clause 164
Sentencing powers of Court Martial where election for trial by that court instead of CO
Mr. Touhig: I beg to move amendment No. 40, in clause 164, page 80, line 19, leave out “subsection (1)” and insert “this section”.
Clause 164 limits the sentencing powers of the court martial to those available summarily to a commanding officer in cases where an offender has elected to be tried by that court. The amendment clarifies the point that the definition of a relevant offence in subsection (2) applies to all cases where the term is used in the clause, rather than only in subsection (1).
Amendment agreed to.
Clause 164, as amended, ordered to stand part of the Bill.
Clauses 165 to 168 ordered to stand part of the Bill.
Schedule 4 agreed to.
Clauses 169 to 180 ordered to stand part of the Bill.
Schedule 5 agreed to.
Clause 181 ordered to stand part of the Bill.
Schedule 6 agreed to.
Clauses 182 to 205 ordered to stand part of the Bill.
Schedule 7 agreed to.
Clauses 206 to 270 ordered to stand part of the Bill.
Clause 271
Appeals to the Court Martial Appeal Court
Mr. Howarth: I beg to move amendment No. 158, in clause 271, page 134, line 39, at end insert—
‘(3) Within 30 days of a conviction of a person by court-martial the court-martial shall transmit a record of proceeding to the Court Martial Appeal Court.
(4) Upon receipt of a record of proceedings the Court Martial Appeal Court shall review the proceedings.
(5) Upon review of the proceedings the Court Martial Appeal Court may, irrespective of whether the accused has appealed against finding or sentence or both or not,
(a) quash the sentence passed by the Court Martial; or
(b) pass in substitution for it any sentence which the Court Martial Appeal Court thinks is appropriate and which is a sentence that the Court Martial had the power to pass in respect of the offence; or
The Chairman: With this it will be convenient to discuss the following: Amendment No. 159, in clause 272, page 135, line 4, after “if”, insert
‘within 30 days of sentencing’.
New clause 20—Review of sentence by Court Martial Appeal Court—
‘(1) Where a court martial has found the accused guilty of any offence, the accused may, on any grounds, within 30 days of sentencing, present a petition to the Court Martial Appeal Court against finding or sentence or both.
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(2) On a reference under subsection (1), the Court Martial Appeal Court may—
(a) quash the sentence passed by the Court Martial; or
(b) pass in substitution for it any sentence which the Court Martial Appeal Court thinks is appropriate and which is a sentence that the Court Martial had the power to pass in respect of the offence; or
New clause 21—Review of sentence—
‘(1) Where a court martial has found the accused guilty of any offence, the accused may, within 30 days of sentencing, present a petition to the Defence Council against finding or sentence or both.
(2) The reviewing authority shall, in accordance with subsections (3) and (4) below, review any finding of guilt made, and sentence passed, by a court martial.
(3) The review under this section shall (if it does not begin sooner) begin as soon as is practicable after—
(a) in a case where a petition has been presented under this section, the presentation of the petition;
(b) in any other case, the end of the period within which a petition under this section may be presented.
(4) Where an application for leave to appeal to the Courts Martial Appeal Court against a finding or sentence has been made before the review under this section of the finding or sentence has been completed—
(a) the reviewing authority shall complete the review as soon as is practicable; but
(b) if leave to appeal is granted before the review has been completed, the authority shall cease considering the review.
(5) For the purposes of this Act the reviewing authority is—
(a) the Defence Council; or
(b) any officer to whom all or any of the powers of the Defence Council as reviewing authority may be delegated by the Defence Council.’.
New clause 22—Powers of reviewing authority on review under section [Review of sentence]—
‘(1) On a review under section [Review of sentence] of this Act of a finding or sentence of a court martial the reviewing authority has the following powers.
(2) Insofar as the review is of a finding of guilt, the authority may—
(a) quash that finding and, if the sentence relates only to that finding, quash the sentence passed in consequence of that finding;
(b) substitute a finding mentioned in subsection (3) below if that finding could have been validly made by the court martial and the authority is of the opinion that the court martial must have been satisfied of facts which would justify the making of that finding;
and, where another finding is so substituted, the authority may pass any such sentence (not being, in the opinion of the authority, more severe than the sentence originally passed) open to a court martial on making such a finding as appears proper.
(3) The findings referred to in subsection (2) above are—
(a) any finding of guilt which could have been validly made by the court martial on the charge before it;
(b) if the court martial recorded no finding on a charge alternative to a charge on which the court made the finding being reviewed, a finding of guilt on that alternative charge.
(4) Insofar as the review is of a sentence, the authority may quash the sentence or substitute a sentence (not being, in the opinion of the authority, more severe than the sentence originally passed) which was open to the court martial.
(5) In reviewing a sentence, the authority may—
(a) remit in whole or part any punishment awarded by the court;
(b) commute any such punishment for one or more punishments provided by this Act, being less than the punishment commuted.
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(6) Where it appears to the reviewing authority that the court martial, in sentencing the accused, exceeded or erroneously exercised its powers to take other offences into consideration, the authority shall (whether or not substituting a different sentence or remitting or commuting punishment) annul the taking into consideration of the other offence or offences in question and any orders dependent thereon; and where the authority does so the offence or offences shall be treated for all purposes as not having been taken into consideration.
(7) Any substituted finding or sentence, or sentence having effect after the remission or commutation of punishment—
(a) shall be treated for all purposes as having been made or passed by the court;
(b) shall be promulgated and shall have effect as from the date of promulgation.’.
Mr. Howarth: The new clauses and the amendment essentially have a probing purpose. They are designed to reinstate the reviewing authority, which the Bill will remove. Under the current system, all courts martial convictions are automatically reviewed by the reviewing authority, acting on behalf of the Defence Council. In addition, the defendant has 28 days from conviction to petition the Defence Council against the court’s finding, punishment or both.
The reviewing authority may quash a finding or sentence, quash a finding and authorise a retrial, quash a sentence only, substitute a finding for one that the court could lawfully have made, and/or commute a sentence to a lesser punishment or substitute an equal or lesser sentence. It has no power to increase a sentence.
The reviewing authority has been criticised by the European Court of Human Rights, which in my view does not instantly mean that it is wrong. That is in parenthesis. I am not sure that I am authorised to say that, but my view is well known.
In 2002, in the case of Morris v. the United Kingdom, the court found that the role of the reviewing authority in relation to courts martial was in violation of article 6 of the European convention on human rights, relating to the right to a fair trail, and concluded that the process amounted to non-judicial interference. However, in the case of Regina v. Boyd etc., the House of Lords took a different view, arguing that because review cannot increase the sentence imposed and the outcome is open to appeal, there should be no infringement of article 6.
Lord Rodger of Earlsferry pointed out:
“Its role can certainly be seen as anomalous, since ordinarily a binding decision of any court cannot be disturbed otherwise than (exceptionally) by itself or by a superior appellate court. It is however to be noted that the review of conviction and sentence carried out by the Reviewing Authority, whether the accused seeks such review or not . . . cannot work otherwise than to the advantage of the accused. The reviewing authority cannot substitute conviction of a more serious offence, nor can it substitute a sentence which is in its opinion more severe (section 113AA(4)). This subsection does not confer a discretion, but calls for an exercise of judgment. It is essentially the same exercise of judgment as is required of the Court of Appeal under sections 4(3) and 11(3) of the Criminal Appeal Act 1968, which has not given rise to difficulty in practice. If the Reviewing Authority were to substitute a sentence which the accused considered to be more severe than that imposed by the court-martial, it would be open to the accused to challenge the substituted sentence on appeal to the Courts-Martial Appeal Court, and it is important to note that the intervention of the reviewing authority in no way diminishes the rights of the accused on appeal.”
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In December 2003, in the case of Cooper v. the United Kingdom, the grand chamber of the European Court of Human Rights again considered the role of the reviewing authority and concluded that although there was no violation in the case concerned, it was none the less uneasy about the role of the reviewing authority in the disciplinary process. Its judgment stated, at paragraph 130:
“The Court further considers, as did Lords Bingham and Rodger in the House of Lords, that the reviewing authority is an anomalous feature of the present court-martial system and it would express its concern about a criminal procedure which empowers a non-judicial authority to interfere with judicial findings.”
Paragraph 131 says:
“Nevertheless, the court notes that the final decision in court martial proceedings will always lie with a judicial authority, namely the CMAC. This is the case even if a Reviewing Authority quashes a verdict and authorises a re-trial: even if the Prosecuting Authority were to decide to bring a fresh prosecution and even if a court-martial were to refuse to stay those further proceedings as an abuse of process, the final review of any new conviction and sentence would remain with the CMAC.”
The Ministry of Defence website states:
“Any person convicted at Courts-martial has the unqualified”—
I emphasise “unqualified”—
“right to appeal to the Courts Martial Appeal Court . . . to appeal against finding or sentence, or both. The CMAC consists of a panel of civilian Judges who would normally sit in the Court of Appeal.”
Although that website seems to indicate that servicemen will enjoy an automatic right of appeal to the court martial appeal court, it is strange that service appeals are not limited on the same basis of civil appeals, from the Crown court to the Court of Appeal.
In civil appeals, the defendant has 28 days in which to appeal to the Court of Appeal against conviction or sentence. However, there are a number of stages before an appeal can be heard. An appeal application will first be considered by a single judge, who can grant or refuse leave to appeal. If an application is refused, an applicant can appeal to a full court of three judges who, again, can grant or refuse leave to appeal.
5.30 pm
If the process of appeal to the CMAC will be as lengthy and costly as appeals to the Court of Appeal, many servicemen will simply not bother. That is essentially the point I am seeking to clarify. Is there a likelihood that, in this process of the removal of the reviewing authority and the recourse to an automatic right of appeal to the CMAC, we will institute a process as lengthy as that which applies in the civil sector? I have no doubt that the Minister will have an answer to that point. I assure him that I have a little more to say to enable him to compose his thoughts.
The unease of the European Court of Human Rights judges is not a good enough reason for the abolition of the reviewing authority. It is desperately important that we in the United Kingdom, and particularly this Parliament, should be responsible for the framework of law relating to our armed forces. I have always felt it anomalous, to use a word that their
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lordships and the ECHR have used, that we should hand over the power to sit in judgment on how best we organise the conditions under which our armed forces serve to a bunch of judges from obscure places such as Latvia, Bulgaria and so on. That point is an aside.
I must repeat what Lord Rodger of Earlsferry said, which is that
“the review of conviction and sentence carried out by the reviewing authority, whether the accused seeks such review or not . . . cannot work otherwise than to the advantage of the accused.”
In other words, it is a safeguard for the accused. So, surely it would be more sensible for the Government to assuage the concerns of the ECHR by placing the reviewing authority on a judicial basis. Alternatively, if that is not possible, they should require the CMAC to undertake the functions formerly undertaken by the reviewing authority.
Such a change should not cause too many problems as the percentage of successful sentence appeals after petition to the reviewing authority is slightly under 4 per cent. over the past six years. That compares with the civil average of 14.5 per cent. over the same period. The removal of automatic review would be a grave disservice to servicemen and women, and would undoubtedly result in greater potential for miscarriages of justice and unfairness.
In the absence of my hon. Friend the Member for Salisbury (Robert Key), who is on important business in the Defence Committee, may I allude to the fact that he and his assistant kindly sent me a note after they visited the court martial centre at Bulford? It reported on a case that involved a marine charged with criminal damage. Apparently, he drove his car into an electricity substation and caused £10,000 of damage.
Even to a layman, it seems strange that the accused was being charged with criminal damage rather than a motoring offence. Nevertheless, the accused, on the advice of his solicitor, pleaded guilty to the charge. However, the Judge Advocate General pointed out that the basis of the plea was legally unsound. The negligence admitted by the accused in his guilty plea was insufficient for conviction.
Had it not been for the intervention of the Judge Advocate General, the accused would have had a conviction for criminal damage, which I am told by my hon. Friend’s assistant would have limited his post-service employment prospects more than a motoring offence would.
The point is that if the Judge Advocate General had not picked up on the legal unsoundness of the accused’s plea in court, it would have been picked up when reviewed by the reviewing authority. Without a reviewing authority, the guilty plea to the charge of criminal damage would have stood. It is unlikely that there would have been an appeal to the Court of Appeal as the defence lawyer was hardly likely to appeal on the basis of her own negligence.
There are good grounds for reinstating the reviewing authority. I shall not go into great detail about the amendments and new clauses because they are probably sufficiently clear. I sense that the mood of the Committee is that I have made my point and that it would like to hear the Minister’s reply.
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