Armed Forces Bill |
|
Clause 355 Director of service prosecutions Mr. Howarth: I beg to move amendment No. 175, in clause 355, page 178, line 21, leave out “may” and insert “shall”. The Chairman: With this it will be convenient to discuss the following: Amendment No. 176, in clause 355, page 178, line 31, at end insert—
No. 174, in clause 355, page 178, line 31, at end insert—
No. 153, in clause 355, page 178, line 33, at end insert
New clause 32—Functions of the Director—
New clause 33—Code for Prosecutors—
New clause 34—Annual Report—
Clause stand part. Mr. Howarth: May I first make a small procedural request? I shall not talk to subsection (6) of new clause 32, which was an error on my part. Rather than letting it slip by, I shall own up to my mistake. We tabled the amendments because clauses 355 and 356 provide insufficient legal basis for the service prosecuting authority and leave many important questions unanswered. Its civilian counterpart, the Crown Prosecution Service, was established under the Prosecution of Offences Act 1985; while the Northern Ireland equivalent, was established under sections 29 to 43 of the Justice (Northern Ireland) Act 2002. Apparently, the Ministry of Defence has managed to squeeze equivalent service prosecution provisions into just two clauses. I have no doubt that the Minister will claim that to be a Gershon saving. I do not want to try the Committee’s patience as I know that we are short of time. I will, therefore, confine my remarks to the most important amendments and the new clauses. New clause 31 would establish a service prosecution authority and make it clear that it is to be funded by the Secretary of State. The Minister may recall that during our brief debate on the money resolution for the Bill, I asked him for his estimate of the extra expenditure that would be required. In parentheses, I thank him for the correction in his letter that set out that the Northern Ireland equivalent costs £7 million, and not £70 million as he told the House. I am happy to publicise the Minister’s correction. 11 amMr. Touhig: Publish the confession. Mr. Howarth: I have made a confession and the Minister has now made one, so we are equal. As commanding officers are going to lose some of their powers to try offences summarily and to dismiss charges, there is clearly the distinct possibility of increased expenditure on the prosecution of service offences, and on the legal assistance that will be given to the accused. I note that clause 355 only permits, rather than requires, the appointment of a Director of Service Prosecutions, and I should be grateful if the Minister would explain why that provision is permissive rather than mandatory. The Minister may be interested to know that, in other Commonwealth countries, the director’s equivalents are all servicemen. The Australian Government recognise:
We have not gone quite that far with our amendments, although we were tempted to do so. We seek merely to ensure that the director shall have had the appropriate knowledge, experience and understanding of the military justice system. As the Attorney-General has a common law duty of general superintendence of the justice system, we feel that it is not unreasonable that he should be consulted by the Secretary of State before an appointment is made. We propose that the deputy directorship should be a statutory position and that the deputy director be a serviceman. Proposed new clause 32(1) is a crucial new provision concerning the functions of the director. It requires the director to exercise his functions independently. If servicemen and women are to have confidence in the military, they must be assured that decisions to prosecute are made strictly on the evidence before the prosecuting authority, not on any other basis. The Committee and the wider public are familiar with the case of Trooper Williams, and I have already referred to the letter that went from the Adjutant-General to the Director of Army Legal Services, suggesting that other factors had come into play in that case. I shall not repeat that further this morning, as it is already on the record. There has also been concern that other factors were involved in the decision to prosecute Colonel Mendonca. Indeed, the Attorney-General was forced to issue a statement denying that the charges had been brought for political reasons—some may say that he doth protest too much. I shall make no further reference to the case, because it is sub judice. However, it makes the point that, whatever the truth in that case or the Williams case, there is clearly a perception that political factors are taken into account in decisions to prosecute. As I am sure that the Committee will agree, that should not be the case. Proposed new clause 32(1) would ensure that decisions to prosecute in future would be taken on an evidential basis alone. It would make that crystal clear to the military and the public at large. We acknowledge that there is a valid requirement for the Attorney-General and the Secretary of State to have a general overview of prosecution policy, so proposed new clause 33(5) would require the director to consult with them before issuing or changing the prosecutorial guidelines. Amendment No. 175 would require the Secretary of State to appoint a Director of Service Prosecutions, rather than just permitting him to do so. Amendment No. 176 would ensure that the Director of Service Prosecutions should have previous experience of military justice issues, and would require the Secretary of State to consult with the Attorney-General before making a recommendation to Her Majesty. Amendment No. 174 would provide for the additional statutory appointment of a deputy director who must be an officer either in the regular or reserve forces, with a rank of lieutenant-colonel or equivalent. Proposed new sections (2H) and (2I) set out the arrangements for temporary exercise of the functions of director and deputy director should those posts fall vacant. If there were no director, the deputy director would exercise the functions of the post until another director were appointed by Her Majesty. If the post of deputy director became vacant, the Secretary of State could appoint an acting deputy director from the prosecution service staff under proposed new section (2I) to cover that period. Amendment No. 153 would ensure that the Secretary of State’s power to set the director’s terms of appointment did not conflict with any provisions under the Bill. Mr. Burrowes: I wish to make a few points about amendment No. 176. The matter has been discussed in Committee and we have taken evidence from the service chiefs who agree with the proposal under proposed new section (2A). The Minister’s Department also recognises the importance of that proposition and may well agree with it. The issue is whether it should be in the Bill. The counter-argument is that such matters will be dealt with by the recruitment of a candidate with all the qualifications, but that that would be difficult to outline clearly in the Bill. I support my hon. Friend the Member for Aldershot (Mr. Howarth) in respect of the provision because it sets out matters clearly. The Bill puts forward a minimum requirement and, in practice, we may wish to take it further in respect of recruitment. It is important under the Bill to recognise the important principle that the director must have relevant knowledge and experience of military justice issues, and an understanding of their relevance in the role of Her Majesty’s forces. It is of primary importance that such a proposal is outlined in the Bill. Mr. Touhig: The clause creates the post of Director of Service Prosecutions. Its size is not a measure of its quality. To establish and retain the independence of the post holder who may or may not be an officer in Her Majesty’s forces, the appointment is vested in Her Majesty and is held and vacated in accordance with the terms of the appointment. The Director of Service Prosecutions will head the Service Prosecuting Authority. It will be a joint service organisation and formed from the Navy, Army and Royal Air Force prosecuting authorities. Like the current single-service prosecuting authorities, the service prosecuting authority will be under the general superintendence of the Attorney-General. The minimum qualifications required to hold the appointment of director are prescribed. They are minimum qualifications and do not amount to a personal specification for recruiting purposes. I am aware that the service chiefs are keen that the Director of Service Prosecutions should be an officer, but we believe that that should not be specified, given that the clause, as drafted, allows a retired officer—a civilian—to be appointed. We have considered the additional request that a requirement for service experience should be included in the clause, but have rejected it on the grounds that it is exceptionally difficult to define relevant experience in legal terms, without making the legislation so prescriptive that it restricts our freedom to consider potentially suitable candidates. Mr. Howarth: I understand the need to be as clear as possible, but I do not accept that, in the absence of being able narrowly to define relevant military experience, there is no way to draft a phrase that would attain what we both seek. The Minister has at his disposal eminent counsel to assist him in such matters. Mr. Touhig: We both seek the same outcome, but I have problems in acceding to the hon. Gentleman’s point. If I can develop my argument a little, I might persuade him. I hope that the hon. Gentleman will not be offended if I say that I am not entirely sure what he is getting at by amendment No. 156. It might be intended to reflect the possibility envisaged under new clause 32 that the director will given additional functions by the Secretary of State. Mr. Howarth: We do not have an amendment No. 156. Mr. Touhig: I beg the hon. Gentleman’s pardon; I mean amendment No. 153. I wish to make a couple of points. First, I do not accept that it would be appropriate for the Secretary of State to decide what the director should do. As a prosecutor, he is independent. If he is to have wider functions, they should be agreed with the services. I have described elsewhere how we would expect that to be achieved. Secondly, clause 355(3) is not about functions of the director; it is about the terms and conditions of service—for example, how long he holds office. I therefore hope that the hon. Gentleman will reflect on his amendment. I turn to amendment No. 174. When developing our position on the powers of the Director of Service Prosecutions, we carefully considered whether particular powers or duties were personal to him such as would require a deputy to be available to act in his absence. There are no such limited personal powers. Indeed, clause 365(4) makes it clear that unless the DSP directs otherwise, a prosecuting officer on his staff may exercise any function of the director. We expect the DSP to delegate some of his functions to most of his prosecuting officers, and all of his functions to a small number of his more senior staff. Such delegation would not be interrupted in the event of his demise or incapacity. We are confident that there will be no power vacuum in advance of the appointment of his successor. Amendment No. 175 would provide that Her Majesty must appoint a director of service prosecutions. It is true that there is no question of Her Majesty failing to appoint a director. The system set up under the Bill would not work if she did not do so. In a sense, the amendment is logical; however, it is usual to provide in legislation for what the Sovereign “may” do, not what she must do, even if the intention is that she will certainly do it. The Bill contains many provisions saying what lesser mortal such as Ministers and myself “may” do, even though the system would break down if they did not do those things. Convention and consistency suggest that the amendment is not necessary. On amendment No. 176, my right hon. Friend the Secretary of State said on Second Reading that it is important that the Director of Service Prosecutions should have relevant service experience. That, I think, we can agree upon. It is unnecessary, however, for the Bill to say that no one without such experience can be appointed; in a sense, the point is academic. The Committee has heard much evidence about the importance of service experience in that position. It could be naval, military or air force experience. Our difficulty is defining in the Bill what is meant by service experience. Provisions in the Bill deal with the legal qualifications of the holder of that post, but defining service experience could be a great deal more difficult. Are we talking about someone who held a short service commission perhaps 20 years ago—that counts as service experience—or someone who has been in operations on the front line? Not many lawyers are to be found on the front line, although in recent years they have increasingly served in operational theatres. Rather than find ourselves in difficulty by putting a definition in the Bill, we decided instead to do it through the recruitment process; the qualifications of the candidates will be a much better way of narrowing down the sort of experience that will be required. If the requirement is drawn up too tightly in primary legislation, we could find ourselves excluding the person we are really looking for—the best person for the job. Moreover, including such a strict requirement in primary legislation would open up the possibility of convicted persons challenging their convictions by service courts on the ground that the director did not have the requisite knowledge and experience. Similarly, given the Attorney-General’s role as superintendent of the director, it is inconceivable that the Secretary of State might recommend an appointment without consulting the Attorney-General. Again, it is wholly unnecessary to say so in the Bill. Clauses 355 and 356 deal with the appointment by the Director of Service Prosecutions of prosecuting officers. For convenience, the Bill refers to the DSP and his prosecuting officers together, as “the Service Prosecuting Authority”, but the authority has no separate existence. A study has been completed on the new SPA, focusing on the views of the current single service prosecutors and the service police. The views of the service discipline policy staffs have also been sought recently and are under consideration. The SPA’s structure, location and relationship with other service authorities are yet to be agreed. 11.15 amNew clause 31, which has not been selected, seems intended to set the SPA up as a free-standing organisation, comparable perhaps to the Crown Prosecution Service. In our view, that approach is not correct. Although independent, as its prosecution role requires, the SPA will still have a service character. It will be funded by the MOD. It will still be able to have standing orders and there will be terms of reference for its officers, to make their duties clear. None of that will undermine in any way the independence of the DSP and the prosecuting officers. It is not necessary to go any further on that. There is no need to state in the Bill that prosecuting officers are subject to the direction and control of the director; standing orders will require them to comply with the code for service prosecutors and any instructions or guidelines issued by the DSP. Subsection (7) of the new clause would give barrister members of the SPA a right of audience in criminal proceedings without needing to be instructed by a solicitor. I am not sure whether that is intended to refer to criminal proceedings in the strict sense—that is, proceedings in the civilian courts—or to proceedings in service courts. However, in neither case is it an appropriate matter for legislation, as the circumstances in which barristers must be instructed by a solicitor are a matter for the Bar Council. Under the new system, prosecuting officers will not need to be instructed by a solicitor any more than at present. We fully expect the SPA to use uniformed prosecutors and that it will be resourced for the tasks agreed with the single services and the service police. I am not sure which new clause the hon. Member for Aldershot did not wish to pursue. Mr. Howarth: For the assistance of the Minister, I should say that that involved only a subsection about a power to transfer from a military court to a civilian one. The Trooper Williams case illustrated that we do not want that. Mr. Touhig: I turn to new clause 32. The Bill clearly sets out the functions of the Director of Service Prosecutions in respect of his handling of cases referred to him by the service police and commanding officers. In 2004, the Attorney-General stated in a written answer in another place that the Army prosecuting authority is independent of the chain of command. The same applies to the prosecuting authorities of the Royal Navy and Royal Air Force. That point is not in doubt. It was not thought necessary to state it in legislation when the prosecuting authorities were created in 1996; it is equally unnecessary to state it now. I turn to new clause 33. In different ways, the three single-service prosecuting authorities already issue guidance, closely modelled on the code of Crown prosecutors issued by the Director of Public Prosecutions. Importantly, they have now agreed the new draft code, which will ensure consistent application across the services, and we welcome that. The code deals with all the matters listed in the new clause and will be publicly available. The statutory duty proposed would add nothing. On new clause 34, the three single-service prosecuting authorities already provide annual reports to the Attorney-General; that is a function of his superintendent role. We expect the Attorney-General’s relationship with the DSP to be similar to his one with the prosecuting authorities now. We see no merit in making the reporting requirement a statutory duty. I rest my case. |
| |
| ©Parliamentary copyright 2006 | Prepared 8 May 2006 |