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I refer again to the American experience, just to illustrate that these are not outrageous suggestions. The requirements in Article 52 of their code are that no person may be convicted of an offence for which the death penalty is made mandatory, except by
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The argument that is always put for the other side is that magistrates decide by a majority, as may the Court of Appeal. In those circumstances, magistrates and judges are trained and experienced in court proceedings. When you are dealing with a panel of a court martial you are dealing with people who are not trained or experienced. They are much more akin to the juries we are familiar with.
It is fairer and more within the spirit of the European Convention on Human Rights that we adopt majority verdict along the lines I have suggested in this amendment. It may be a considerable change from the present, but, supported by the chief judge of the system, I feel I am in a position to ask your Lordships to consent to it. I beg to move.
Earl Attlee: My Amendments Nos. 123 to 125 concern the continuous service of members of the panel. We have covered that point already, and do not need to go back to it. My Amendments Nos. 118 and 119 are similar to the points raised by the noble Lord, Lord Thomas, on Amendments Nos. 117 and 130 about majority verdicts. The subject has been far better covered by the noble Lord than I could possibly do.
I am worried about the issue of majority verdicts. We do not know how the panel in a court martial comes to its decision. Does it seek to be unanimous, or does it vote formally? We simply do not know. My Amendment No. 131 allows research into the operation of the panel, but with some restrictions.
I am afraid that I do not support the noble Lord, Lord Thomas, on the “recasting”, as he put it, of the panel. I believe that it should be composed of officers and warrant officers. If we want to go down that route, we ought just to go for the Crown Court in the UK and completely forget about courts martial. We do not want to go that way, though.
The noble Lord, Lord Thomas, said it would be intimidating for a serviceman to come before a court martial with the panel in front of him. I suspect that being cross-examined by the noble Lord is a bit intimidating as well. Another difficulty is that junior soldiers would not be trained and would not be experienced enough to decide these matters. The noble Lord touched on that as another difficulty. Sitting on a court martial is a bit much to ask of junior soldiers. Worse still, they may be a bit too quick to convict. It is important to remember that the panel is not supposed to be a jury; it is acting more as a judge. These are interesting matters to be raised.
Lord Campbell of Alloway: We are getting ahead of ourselves. My noble friend Lord Attlee is dealing with Amendment No. 131. I shall not speak to it now, but I oppose it outright. In the context of the amendment
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Earl Attlee: We are all grateful for the contribution of my noble friend, but this group starts with Amendment No. 117 and ends with Amendment No. 131.
Lord Drayson: I shall begin with Amendments Nos. 117, 118 and 119 relating to Clause 154. Having listened to the arguments made by noble Lords in support of these amendments, I accept that there may be benefits in stipulating the minimum and maximum numbers of lay members who may sit at a court martial. I am clear, for example, that there would never be fewer than three members of a court martial, excluding the Judge Advocate, but I need to look at the implications of putting that on the face of the Bill. I will review the wording and, if I can, I shall bring forward an amendment on Report.
Amendment No. 122, which goes to Clause 154, requires those who are chosen to act as lay members to be selected by a ballot system. I assume that the purpose of the amendment is to ensure that each member is randomly selected. This amendment is unnecessary because each service has a broadly similar system for selecting lay members that embrace the principle of random selection. That random selection produces a pool of qualified personnel from which court administration officers appoint members unless they are ineligible. Personnel who are serving on operational tours are not selected.
Under the Bill, the intention is to continue to select personnel in a similar manner. Setting out a requirement for a balloting system on the face of the legislation might place an unnecessary burden on the system or create unfairness. There must be flexibility in the methods of appointing court members in order to take into account their services’ organisational and operational requirements.
9.45 pm
The main effect of Amendment No. 120 toClause 154 and Amendment No. 128—the new clause—appear to be that persons of any rank would be qualified to act as lay members of the court martial. This amendment would not be welcomed by the services. Operational effectiveness underpins the military justice system. We think that court-martial members must have sufficient service experience, which includes having experience of commanding others. Those below the rank of warrant officer or newly commissioned officers will not always have this experience. Clause 155 in the current Bill was drafted on that basis.
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On the issue of personnel from different services on courts martial, it is possible that this new clause after Clause 156 also seeks to ensure that the lay members of the court always comprise personnel from different services. The current wording of the Bill already allows for this. However, in most cases it is intended that the defendant will appear before a court made up of personnel from his own service. This was the preference of the First Sea Lord and the Chief of the General Staff who in their evidence to the Select Committee said that there should be a presumption for a single service board unless there is a good reason for a mixed board to be appointed—for example, when defendants from different services are tried together.
Amendment No. 121 is, with respect to the noble Lord, unnecessary. Service personnel appointed to act as court members are currently drawn from all parts of their respective services. That will continue under the Bill. I believe that this matter is better dealt with in guidance.
Amendments Nos. 123, 124 and 125 go to Clause 155. I have talked about eligibility for membership of the court martial and I will not go further on that matter. In responding to the points made by the noble Earl, Lord Attlee, and the noble Lord, Lord Garden, relating to continuous or aggregate service, it may be useful for me to state that we believe that a person who has been an officer for three years has considerable command experience, and we do not believe that he will lose this simply because he has a break in that experience.
Amendments Nos. 126 and 127 to Clause 156 are unnecessary. As I have explained when dealing with Amendment No. 122, the services have three separate but broadly similar systems for selecting lay members which embrace the principle of random selection. Given this selection procedure, although it is not impossible, it is highly improbable that a person would be repeatedly appointed as a member of the court martial within an 18-month period.
I understand the background to AmendmentNo. 129, but, as I said in my response to the chairman of the Joint Committee on Human Rights, we do not think it necessary or appropriate to take one element of the system—that relating to reporting procedures—and deal with it in legislation. What we have to ensure is that in practice all aspects of the system provide the necessary guarantees and impartiality including, as now, a prohibition on all reporting on the performance of the relevant participants. It is not necessary to make provision to this effect in the Bill. As with the decisions of jury members and others required to decide on the guilt of those accused of offences, the decisions of the members of the court martial should remain confidential.
Currently, all members of a court swear under oath at the start of the trial not to disclose the vote or opinion of any of the members unless required through some legal obligation. Additionally the judge advocate reminds the members of their duty in this
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I deal next with Amendment No. 130 tabled in respect of Clause 159. The part of the amendment which prevents decisions being made on the basis of a simple majority is unnecessary.
I have listened carefully to the arguments made by the noble Lord, Lord Thomas of Gresford, and his helpful description of the US system. I have also noted carefully the point he made about the fact that magistrates are trained. I will reflect on that, but we believe that the amendment is unnecessary. As he described, a summary trial in the magistrates’ courts may be decided on the basis of a simple majority and most of the cases tried by the courts martial are akin to magistrates' courts trials, but I take on board his point about magistrates being trained. I will go away and reflect on that.
With his experience, I am sure that the noble Lord is quite aware that many other jurisdictions allow simple majority verdicts, so I shall not labour that point here. I think that it is fair to say that there is nothing irregular or unsafe about a decision based on a simple majority vote system. Equally, we believe that it is unnecessary to require that a period of time must have elapsed before a decision based on a non-unanimous vote of members can be accepted.
We believe that the proposal that the president should be required to state in open court the number of those who did not believe the accused to be guilty is inappropriate. As I said, the decisions of courts martial must be confidential. Disclosing those details would not be in the interests of justice, as that might influence the decisions of court martial members, even if the identity of those dissenting or agreeing to the guilty verdict was not revealed.
I turn to Amendment No. 131, and take on board the point made by the noble Lord, Lord Campbell of Alloway, about the structure with reference to Amendment No. 132. Focusing on Amendment No. 131, forthe reasons that I gave about the amendment toClause 159, it would be inappropriate to introduce a provision of this type. Again, I underline that we believe it to be vital that the decisions made by the members of the court martial remain confidential. If members of the court martial knew that the decision that they made might be disclosed, even if only for research purposes, they might be unduly influenced, regardless of whether those researching matters are placed under the same duty of confidentiality as court members.
The amendment does not specify which members’ decisions might be the subject of such research, so it might therefore extend to the judge advocate's decisions. It would be highly inappropriate for the decisions made by the judge advocate to be disclosed for such purposes and would not reflect any practice adopted in the civilian criminal justice system.
Earl Attlee: I am grateful for the Minister's response to my amendments, but precautions are taken to ensure that panel members are not in the same chain of command as the accused. If the accused is in one
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Lord Drayson: The noble Earl raises an important point. I will reflect on that and consider how I can provide him with reassurances on that matter and write to him.
Lord Thomas of Gresford: The Minister called to his aid the views expressed by very senior members of the armed services when they gave evidence to the Select Committee. I hope that he will give more weight to the view of the Judge Advocate General, who was for many years a serving officer in the Royal Navy and reached the heights of being Judge Advocate for the Fleet before he became Judge Advocate General. So his daily experience of the courts martial system is not to be ignored—I do not suggest that the Minister is ignoring it, but there is a great deal of weight to his view. Let us take for example his answer to the Select Committee on the number of members of the panel. He was asked by Mr Robert Key:
“You say: ‘For such a small panel to try more serious matters and impose long prison terms is objectionable’. Why is it objectionable?”.
“Because it is too far removed from the civil system ... A panel of three, ie three lay magistrates, have a certain limit to their powers of punishment and this is so far removed that it seems to me objectionable for those reasons”.
There is a great deal of weight in that. Magistrates have the power of imprisonment of only six months, or perhaps 12 months in the case of consecutive sentencing, whereas the court-martial system, particularly if it is dealing with mandatory life sentences for murder cases and so on, has an almost unlimited power of imprisonment.
Judge Blackett was then asked by Miss Vera Baird, who herself is a very experienced advocate, about same-service panels. His response was,
- “I think the premise upon which the Act is based is that there is a requirement for a single system of Service law because of operating patterns and more operating together and that sort of thing. If that is your initial premise then the panel membership should be a single system of Service law as well ... that is the logic of it. If you say no you need to have solely Army, solely Navy or solely Air Force panels then you are undermining your own argument for a single system of law”.
I fully commend that answer, which seems to make a great deal of sense. We are putting together a whole system of law, as the Minister has said today, that is not meant to draw distinctions between the various services. I put it to the Minister that he is advocating one-service panels only because of pressure from the
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I am pleased that the Minister will reconsider the question of majority verdicts. I hope that he does, and if I can contribute by discussing the matter with him and others on such topics, I shall be delighted to do so before Report. This is a real opportunity to do something to bring the whole system up to date and to introduce a system of justice for members of the services that fits with the legal mores of the 21st century. There is too much harking back to the past in the services’ opposition to change. It is natural; they are used to it. But we think that we should be looking at a broader picture to ensure that no serviceman can feel that he has not had a fair and just trial if he is convicted of a serious offence. For the moment, and pending further discussion, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 118 to 122 not moved.]
Clause 155 [Officers and warrant officers qualified for membership of the Court Martial]:
[Amendments Nos. 123 to 125 not moved.]
Lord Drayson moved Amendment No. 125A:
On Question, amendment agreed to.
Clause 155, as amended, agreed to.
Clause 156 [Officers and warrant officers ineligible for membership in particular circumstances]:
[Amendments Nos. 126 and 127 not moved.]
[Amendments Nos. 128 and 129 not moved.]
Clauses 157 and 158 agreed to.
Clause 159 [Decisions of Court Martial: finding and sentence]:
[Amendment No. 130 not moved.]
[Amendment No. 131 not moved.]
Clauses 160 and 161 agreed to.
Baroness Crawley: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
- House adjourned at ten o’clock.
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