Armed Forces Bill |
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Mr. David Burrowes (Enfield, Southgate) (Con): I have some brief comment on the concerns expressed about the abolition of the review. The Minister’s main concern seems to be that the review is not ECHR compliant. That concern has been expressed about the role of the commanding officer in dealing with cases summarily, but the Government have properly taken the view that, as a whole, the process in respect of the commanding officer is ECHR compliant. Similarly, the argument can be applied to the reviewing process. Although one can note the concerns about ECHR compliance, that does not mean that they are insurmountable. When one considers the process as a whole, and the fact that the final arbiter and determination will be judicial, one can counter those objections. The other point, as noted in the Government’s response to the Defence Committee, is that a reviewing authority is not necessary, but:
I would be interested to know the figures for 2005, and the number of reviewed cases in which the finding or sentence have been changed, to ascertain the advantages of such reviews. The Defence Committee requested that the Minister revisit the proposal to abolish the reviewing authority and assess whether those convicted in future will have the same advantages as defendants do now. If he considered they would not, it asked him to identify ways to ensure such advantages. In July 2005, the Government responded, but came up only with the safeguard of full rights of appeal to the court martial appeal court against fines and sentences, and the availability of bail, pending appeal. Properly, my hon. Friend the Member for Aldershot (Mr. Howarth) made a point about timeliness. There is a concern that, with only those safeguards, timely decisions will not be reached. The Minister may well say that the wish to abolish the reviewing authority is based on a matter of principle rather than practice. I refer him to clause 151, which confirms the review of summary fines and punishments. The principle of the review is in the Bill, so one cannot simply say that it is good for those subject to summary findings but not for those who reach the court martial stage. The principle of review should be properly applied in situations for which it is found to be necessary. Mr. Touhig: Clause 271 renames the “Courts-Martial Appeal Court” the court martial appeal court. That is necessary because the Bill establishes a standing court martial, which means that there will no longer be a requirement to convene ad hoc courts martial for each case. The clause also gives effect to schedule 8, which makes amendments to the Courts-Martial (Appeals) Act 1968. Having clarified that issue, I shall deal with the new clauses and amendments. Column Number: 94 New clause 20 would provide a right to petition the court martial appeal court, on any grounds, against the finding or sentence of the court martial. On hearing such a petition, the court martial appeal court could quash the sentence and substitute a different one or order a new trial. New clause 20 is an unnecessary replication of an existing right of appeal. Provision is made for appeals against all decisions of the court martial in section 8 of the Courts-Martial (Appeals) Act 1968, or the Court Martial Appeals Act, as the Bill renames it. It is difficult to see what the new clause would add to the existing right of appeal. New clauses 21 and 22 are essentially a reproduction of sections 113 and 113AA of the Army Act 1955, and their Royal Navy and Royal Air Force equivalents. They would provide for the post-trial review of the findings and sentences of the court martial by the Defence Council, or by an officer to whom the Defence Council had delegated its functions. Our main objection to review is one of principle. The review procedure is based on the idea that a single service officer acting as the reviewing officer might take a better view of the appropriate finding and sentence than the court martial that heard the case originally. Review is arguably not compliant with the European convention on human rights, because it represents non-judicial interference in the decisions of an independent and compliant court. Mr. Howarth: The Minister heard what my hon. Friend the Member for Enfield, Southgate (Mr. Burrowes) and I had to say about the proportion of reviews that have found in favour of the accused—although they are not great in number, it has to be said. I entirely take the Minister’s point about one officer second-guessing the court, as the Minister might put it, but the fact is that a number of servicemen and women who might otherwise have been convicted have had a successful review. That suggests that miscarriage of justice has been avoided in at least some of those cases. Apart from the ECHR-compliant business, I am not clear why he is not keen to ensure that protection for servicemen and women. Mr. Touhig: I understand the point that the hon. Gentleman makes. I am advised that in 2004 the reviewing authorities reviewed 630 cases, and in 9 per cent. changed either their finding or the sentence. Let me make a point about review and how it operates. Review is conducted in private. There is no hearing and no consultation with the victim, who could easily be a serviceman or woman. Nor is there consultation with the prosecution. I look at it this way: how would I feel if I had been assaulted and I found out that, although the person who assaulted me had been sent to prison, his sentence had been reduced by an unqualified person who had not even been at the trial? The reviewing authority takes legal advice, but it does not have to follow it. Column Number: 95 Mr. Burrowes: Would the Minister have similar feelings about review of summary findings and punishments? What is the difference between the situation he describes and clause 151(2), which refers to
Would there not be similar feelings to those that the Minister describes in relation to a review of summary findings? Mr. Touhig: I will respond to that point in a moment, if the hon. Gentleman will allow me to develop the point that I was making. What I am trying to get across is the fact that, in the case that I just mentioned, it seems that the advantage lies solely with the offender. I am sure that that is not the intention of the new clauses, but that is where they would lead. Review has the effect of delaying the defendant’s right to appeal to a higher court. Furthermore, as I have said, review is not carried out in public and the independent prosecuting authority does not have the opportunity to make representations. That is not satisfactory; it is not in the wider interests of justice or the victim. The review procedure dates from a time when courts martial could deprive the accused of their liberty—following trials at which no lawyers were present, either as members of the court or as advocates—and there was no right of appeal against sentences from the courts martial appeal court. Today, courts martial are very different and they are compliant with the European convention on human rights. We certainly understand the value that has been placed on review, which can have benefits to the accused, but following extensive discussion with the services, we have concluded that in a modern justice system such benefits will be provided more appropriately by the safeguard of full rights of appeal against finding and against sentence to the courts martial appeal court and the availability of bail pending appeal. For all those reasons, we believe that the review is anomalous and the justification for it cannot be sustained. 5.45 pmMr. Howarth: I am sorry to interrupt the Minister. In moving the amendments, I suggested that, in the parallel civilian arrangement, a lengthy procedure has to be gone through. Is it his intention to deal with that point and to take us through how speedily the appeal system that he proposes will work? Mr. Touhig: I shall try to do that if the hon. Gentleman will bear with me for a second. Amendment No. 158 provides that the court martial appeal court must in all cases, within 30 days of a person’s conviction by the court martial, receive a record of the proceedings, regardless of the wishes of the convicted person. The court martial appeal court must then review the conviction and sentence of the court martial and may quash or substitute the sentence or order a new trial. Column Number: 96 We do not believe that it is appropriate to make it mandatory for the court martial appeal court to review all convictions of the court martial. That would require the court to analyse about 500 cases a year, even if there were no wish on the part of the prosecution, the convicted person or the court martial for the case to be reviewed. There is already a right of appeal to the court martial appeal court, and that is to be retained under the Bill. We consider that that is right. It is sufficient protection against the potential for erroneous findings and sentences, and is similar to the protections provided now to convicted persons when they appear before the Crown court. The affect of Amendment No. 159 would be that the Attorney-General could not refer a sentence to a court martial appeal court under clause 272 more than 30 days after the sentence was passed, effectively—I hope that the Committee will recognise this—extending the whole process unnecessarily in our view. In the civilian system, under the Criminal Justice Act 1988, the Attorney-General must apply for leave to refer a sentence within 28 days of the sentence being passed. Clause 274 enables regulations to be made about the referrals under clause 272, and the regulations may include provision equivalent to the rules of the Criminal Justice Act 1988. Our intention is that the regulation should similarly require an application to be made within a specified period. Although it is possible that that period might be longer than 28 days—for example, to allow for communication problems should the court martial sit abroad—the reason for leaving such matters to regulations is to provide for a degree of flexibility in adapting rules designed for the civilian context so that they work in the service context. The regulations will, of course, require parliamentary approval, so colleagues will have a chance to consider them when we bring them forward. In the circumstances, I hope that the hon. Member for Aldershot might feel able to withdraw his amendment. Mr. Simon Burns (West Chelmsford) (Con): On a point of clarification, can the Minister tell us whether that parliamentary approval will be subject to the affirmative or the negative procedure? Mr. Touhig: I believe that it will be the negative procedure. Mr. Burns: The Minister will then understand that the generosity of his statement is not as great as it would seem on the face of it. As a former Whip, he will be aware that one has to get a debate on a negative resolution through a prayer so, in some ways, the decision falls in the lap of the Government rather than under the rules of the House. Mr. Touhig: I accept that point. The hon. Gentleman knows from his time in government that that practice has been adopted by all parties. However, I emphasise that it gives Parliament an opportunity, however it wishes to handle it, to consider the matter. The hon. Member for Aldershot made a number of points, and I shall try to respond to them. He said that a person convicted by court martial has a qualified
The hon. Gentleman also referred to a case witnessed by the hon. Member for Salisbury, but that involved a technical error by the court. Although such things happen rarely and would be picked up on appeal, we recognise that a slip rule would be of value in such a case. We are therefore looking at the issue, as witnesses appearing before the Committee were told earlier this month. The hon. Member for Aldershot also mentioned the Cooper case. Judge Costa in the European Court said that the review
On the point made by the hon. Member for Enfield, Southgate, a summary review also has regard to the fact that the accused had no legal representation. The reviewing authority does not change the finding or evidence, but simply refers the case to the ECHR-compliant summary appeal court. The reduction of a sentence does not mean that a miscarriage of justice has been avoided, but just that the reviewing authority would have imposed a lesser sentence. I listened fully to the points made by Opposition Members and I hope that they feel that my responses adequately cover their concerns. I fully understand their points, but we are seeking to frame the Bill in such a way that it will be totally workable, allow issues to be speedily addressed and remove some of the present anomalies. Where a matter is appealed, it is more open and transparent for it to go to the proper appeal court. We will achieve a better result by taking that route than by doing things in private in the way that I described. Mr. Howarth: We have had a useful discussion, and I am sure that we are all grateful to the Minister for setting out the position. This is a complex matter, but I hope that his comments meet the need to strike the right balance between ensuring that justice is delivered and maintaining the operation of our armed forces at maximum efficiency. I said at the outset that these are very much probing amendments, and I wish to reflect on the Minister’s comments. Perhaps we can reconsider the matter on Report. In the meantime, I shall not press the amendments further. I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn. Question proposed, That the clause stand part of the Bill. Mr. Howarth: May I just refer to something that the Minister said? He said that the slip rule had a certain useful purpose, as the Committee has found, but will he tell us where matters stand? Is the Department persuaded of the need to reinstate the slip rule or is it still considering the matter? If so, how much longer is that consideration likely to take? Column Number: 98 Mr. Touhig: Yes, I can help the Committee and the hon. Gentleman. We carefully considered including a slip rule in the Bill, along lines similar to those in section 155 of the Powers of Criminal Courts (Sentencing) Act 2000. However, that power presents difficulties because it allows a judge, sitting alone, to increase or decrease a sentence in several situations. Perhaps the main problem, however, was the difficulty, on the one hand, of bringing back the service members on a court martial and, on the other, of the Judge Advocate General revising sentences without a service input. We have noted that, in his written evidence, the Judge Advocate General now estimates that the slip rule might be used up to 10 times a year. Although that represents fewer than 1 per cent. of courts martial at current levels, we think that the estimate is on the high side. Nevertheless, it might be a helpful planning assumption of the worst case. We have started further work to see if we can devise an approach that would retain full service input into sentencing, which I think we all agree is important. That work is being conducted in consultation with officials from the Judge Advocate General’s office, and if we can agree on an approach, we will consider introducing an amendment in due course during the passage of the Bill. The evidence that we have had, not least from the service chiefs, clearly indicates that service courts should have a services character, ideally from the service of the accused. We considered whether technical matters might be corrected by a judge sitting alone, but it appears that the correction even of apparently technical matters might effectively require the defendant to be sentenced. The work is ongoing. If colleagues will bear with me, we will introduce further proposals later for hon. Members to consider. Mr. Howarth: I am sure that the Committee is grateful to the Minister for that explanation. No doubt we will revisit the issue. Question put and agreed to. Clause 271 ordered to stand part of the Bill. Schedule 8 Amendment of the Courts-Martial (Appeals) Act 1968 Mr. Touhig: I beg to move amendment No. 56, in schedule 8, page 216, line 17, at end insert—
The Chairman: With this it will be convenient to discuss Government amendments Nos. 60 and 61. Mr. Touhig: The Courts-Martial (Appeals) Act 1968 allows the appeal court to order payment out of public funds such sums as appear to the court reasonably sufficient to compensate anyone properly attending to
I am sure that colleagues will see the advantage of the provision. Vital medical evidence will continue to be heard at appeals. The doctors will be paid for their efforts, which will no doubt please them, and not requiring them to attend in person will continue to provide side benefits for the health service. In this case, everyone is a winner. The 1968 Act is being amended and the 1967 Act consequently repealed because it makes sense to group the provision with other cost provisions of the 1968 Act. We have also taken the opportunity to simplify and rationalise the rather elaborate wording of the original section of the Act. I turn to amendments Nos. 60 and 61. The 1968 Act defines the term “Judge Advocate General”. The amendments are a result of our recent arrival at the view that it is not necessary for the 1968 Act to define the term when schedule 8 substitutes a new definition for the old. Amendment No. 60 will add the Judge Advocate General to a list of definitions that will be omitted from the 1968 Act, and amendment No. 61 will remove the current amendment in schedule 8 of the existing definition in the 1968 Act. Amendment agreed to. Mr. Touhig: I beg to move amendment No. 57, in schedule 8, page 216, line 39, at end insert—
The Chairman: With this it will be convenient to discuss the following: Government amendment Nos. 58, 59, 41 and 42. Government new clause 13—Powers of the Criminal Cases Review Commission. Government new schedule 1—Powers of the Criminal Cases Review Commission. 6 pmMr. Touhig: New clause 13 is required simply to introduce new schedule 1, which deals with the powers of the Criminal Cases Review Commission. The commission has the power under the Criminal Appeal Act 1995 to refer a case back to the courts where a miscarriage of justice may have occurred. That power does not currently extend to cases decided by service courts. The new schedule will alter that by giving the commission powers in relation to certain service courts that correspond to the powers that it has in relation to the criminal courts in England and Wales. It will have the power to refer convictions by the court martial and the service civilian court and sentences passed on persons convicted by those courts. Column Number: 100 The commission’s jurisdiction will not extend to cases dealt with by summary hearing or by the summary appeal court. The commission accepts that it would be inappropriate for it to have jurisdiction over such cases. The service civilian court and the court martial may deal with more serious matters than those dealt with summarily, and the punishments available are greater. It is therefore not considered necessary for the commission to deal with cases of that sort. The new schedule will make a number of amendments to the 1995 Act and the Courts-Martial (Appeals) Act 1968. The amendments are necessary to confer on the commission its new functions relating to the decisions of service courts and to reflect those functions. For example, the new schedule will amend the 1968 Act by inserting a proposed new section 29A to give the court martial appeal court the power to direct the commission to investigate and report on certain matters. That power corresponds to that of the Court of Appeal in criminal cases. The new schedule will also amend the 1995 Act, which sets out the commission’s powers, by inserting new sections 12A and 12B. Section 12A will enable the commission to refer cases dealt with by the court martial to the court martial appeal court, including cases heard by the court martial on appeal from the service civilian court. If a case was heard by the service civilian court and there has not been an appeal to the court martial, under new section 12B, the commission will be able to refer the case to the court martial for rehearing. The 1995 Act enables the commission to require the appointment of an investigating officer. He may be a member of the police force that originally investigated the case, or the commission can insist that he be a member of another force. The new schedule amends the Act so that, in a case investigated by the service police, the commission can require the appointment of an investigative officer from the same service police force. Alternatively, it can say that the investigating officer must come from one of the other service police forces or from the civilian force. I do not propose to go through the other amendments that the new schedule will make, but they all reflect the commission’s new role in cases dealt with by the service courts. Vera Baird (Redcar) (Lab): I apologise for not having been present for much of the sitting. It is to be welcomed that the Criminal Cases Review Commission will now be able to refer cases to the court martial appeal court. The terminology used in proposed new sections 12A and 12B, with its reference to the court martial, suggests that the power to refer a case will apply only after the Bill comes into force; otherwise we would be talking about “courts martial.” Is the position that if there were a miscarriage of justice in the new unified court martial after the Act comes in, the Criminal Cases Review Commission would be able to refer the case, but that if there were a miscarriage of justice today in a court martial, it would not? Is the terminology intended to confine that possibility to convictions after the date at which the Bill comes into force? Column Number: 101 The Chairman: I have to say that that was a very long intervention. Mr. Touhig: My hon. and learned Friend’s interpretation is quite right. Amendments Nos. 57 to 59, 41 and 42 also reflect the commission’s new role. Amendment No. 57 amends section 36 of the Courts-Martial (Appeals) Act 1968. Section 36 sets out the powers that can be exercised by a single judge on behalf of the court martial appeal court. The effect of the proposed amendment is that when the commission refers a case to the court martial appeal court, a single judge of that court can grant leave for the appeal to be on a ground that is unrelated to the reasons given by the commission for making the reference. The amendment reflects the powers that a single judge has in relation to references made by the commission to the Court of Appeal. Amendments Nos. 58 and 59 amend section 48A of the Courts-Martial (Appeals) Act 1968. This section allows an appeal to be brought on behalf of a person who is now deceased. Amendment No. 58 extends that provision so that it applies when the commission refers a deceased person’s case to the court martial appeal court. The result is that any action that could have been taken by the deceased following the reference of his case to the court can be taken by a person approved by the court—for example, his next of kin. Amendment No. 59 relates to the time limit for asking for the court’s permission to represent the deceased in such an appeal. Such an application must normally be made within a year of the death. The effect of the amendment is that the time limit does not apply if the case is referred to the court by the commission. That reflects a similar rule in relation to appeals in criminal cases. Amendments Nos. 41 and 42 amend clause 275, which requires the Secretary of State, in certain circumstances, to pay compensation to a person wrongly convicted by the court martial. The amendments extend the circumstances in which compensation must be paid, so as to include cases in which the court martial appeal court quashes the conviction following a reference to the commission. That corresponds to a similar provision in the Criminal Justice Act 1988. Mr. Howarth: For my personal clarification—I probably missed it—I would be grateful if the Minister set out exactly the process by which the Criminal Cases Review Commission will become involved. I presume that it will be on the application of the convicted person. It might help if he could also give us some idea of where such military cases might fit in the spectrum of consideration by the CCRC, an organisation that has been subjected to a huge amount of work. I do not know what its current backlog is, but when I was a member of the Home Affairs Committee, it was certainly struggling. I hope that he can answer those two points. |
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