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Earl Attlee: The noble Lord, Lord Thomas of Gresford, has overlooked the fact that my noble friend’s amendment says that it is a provision for the majority of the court martial panel. Personally, I think that it is a rather weak amendment but I still strongly support it.

Lord Astor of Hever: I thank my noble friends Lord Campbell of Alloway and Lord Attlee, the noble and gallant Lords, Lord Boyce and Lord Vincent, and the noble Viscount, Lord Slim, for their support for the amendment.

The noble Lord, Lord Thomas, made some important points but I do not agree with him about inter-service rivalry. He said that military justice is coloured by the past and by traditions. Like the noble Lord, I want to see justice improved, but those traditions and the military ethos must not be thrown out without very good reason. I very much agree with the noble Viscount, Lord Slim, about the importance of the military ethos. We must not lose touch with that.

The noble Lord, Lord Garden, was happy to see mixed courts martial, but in my discussions with service men and women from all the services and all ranks they argued very strongly for the majority to be drawn from the defendant’s own service, as set out in our amendment. The noble and gallant Lord, Lord Boyce, made the important point that the vast majority of servicemen from different services do not overlap with one another.

I thank the Minister for his reply and welcome his recognition of the need for a court martial to be made up of members of the defendant’s own service wherever possible. He said that he would go away and

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think about the amendment, and perhaps we can have a discussion behind the scenes about how we take this matter forward. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Thomas of Gresford moved Amendment No. 133:

“( ) for the preparation and delivery of standard briefing notes to the prospective members of the court;”

The noble Lord said: I see that in today's groupings list this amendment has been included in the first group. I was not aware of that because on an earlier list, which I have with me, it was in a separate group altogether. As the Minister did not in his reply refer to Amendment No. 133, perhaps he will forgive me if I move it now.

This is just a detail, but it is important. Your Lordships will be aware that at the beginning of a court martial, when the panel is drawn together, members are given briefing notes about their duties and responsibilities. All I seek is to ensure that the regulations provide for the preparation and delivery of those notes and that they be standardised and published so that anybody who is appearing in a court martial, in whatever capacity—defendant or otherwise—knows precisely what the members of the court are told. Your Lordships will bear in mind that a panel in a court martial has no training or experience; it is like a jury who have not undergone any course. The panel is unlike magistrates, who will not be sitting unless they have attended various training courses and have sat with more experienced magistrates who can advise and slowly give them the experience that they need. A court martial is created on the spot, and it is very important that the briefing notes received cover all the panel’s responsibilities. I beg to move.

Earl Attlee: I have rather more sympathy for the noble Lord’s amendment, particularly his point about standardisation. I was not aware that different courts martial had different guidance. It may not vary a great deal, but the Minister ought to give the noble Lord’s amendment serious consideration.

Lord Drayson: In responding to Amendment No. 132, I shall also respond to Amendments Nos. 133 to 135 and to Amendment No. 156A, which is within the group.

We are unclear from Amendment No. 133 about the type of information that the noble Lord seeks in the briefing notes if the amendment were accepted. I am sure that noble Lords would agree that it would be inappropriate for a court member to be provided with any information about the details of the case in advance of the trial. Such information could be prejudicial to a fair trial, and I am sure noble Lords would agree that that is to be avoided.

In addition, a court martial member does not require a briefing on the law in advance of the trial, as he will be guided by the judge advocate in matters relating to

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legal points. I assume that the noble Lord intends the briefing notes to relate to matters such as the duties and responsibilities of panel members—for example, the duty fairly to try an accused, court room procedures, and so on. Court martial members already receive this information about these matters, which is achieved either through the issue of standard directions by the judge advocate at the trial or through written instructions issued to panel members when they are selected. In that respect, the lay members of the court receive far more information than a juror in the civilian system receives. The practice of providing written instructions to lay members of the court in advance of the trial will continue under the Bill, but the preparation and delivery of the information is an administrative function. We, therefore, do not believe that it needs to be provided for in rules, but can instead be put into guidance.

I trust that noble Lords will welcome the so-called slip rule for the court martial. Amendments Nos. 134 and 135 introduce a power to create this in rules made under the Bill. The slip rule is a power to respond to errors made in sentencing and is analogous to that which exists in the Crown Court. As with the Crown Court equivalent, the power will be exercisable only within 28 days of the original sentence or order being awarded, except when the original court martial was held outside the British islands, in which case an extension to that time limit may be appropriate.

The main difference from the Crown Court power is who may exercise that power. That is because at a court martial trial the judge advocate and the lay members jointly determine sentence. The court martial power will therefore be exercised by the original judge advocate and the same members, but if any of the original lay members are unavailable a new panel of different lay members will be used. However, it must be the judge advocate who sat on the original trial. When the judge advocate has acted alone at the relevant sentencing hearing—for example, where he has activated a suspended sentence alone—he will be able to apply the slip rule but, again, it must be the same judge advocate.

These amendments will also be beneficial because the Bill removes the non-judicial review of court martial decisions currently available under the service discipline Acts. A slip rule will enable the speedy correction of sentencing errors without the need for an appeal to the court martial appeal court, and has the strong support of the Judge Advocate General and the services.

Amendment No. 134A removes the current rule-making power that allows for appeals only against the imposition of reporting restrictions and replaces it with a wider appeals power. It allows rules to be made so that the imposition of reporting restrictions at preliminary hearings or the trial itself may be appealed. It also allows for all other orders and rulings made at preliminary hearings to be the subject of appeals, as they are in the civilian system. Of course, these other orders or rulings are not to be the subject of appeal if they are made during the trial. That is because the proper time for appealing any

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errors of law is at the conclusion of the trial rather than interrupting the trial itself to appeal a judge advocate’s decision.

Amendment No. 156A amends Schedule 8—

Lord Thomas of Gresford: Will the Minister bear in mind that I have not, as yet, got to Amendment No. 156A? Again, this seems to have appeared in the groupings list this morning, and I will speak to it in its turn.

It appears that I am to reply to the Minister on the other amendments. I support him on the slip rule; it is an excellent idea. In the absence of the reviewing authority, it provides a way of dealing with errors.

I hear what the Minister says about the standard briefing notes. I am not concerned with briefing notes for a particular trial. The regulations should set out a requirement for those standard briefing notes to be produced, and they should be standard so that we can see exactly what they are. Unlike the past, there is now a firm division between the judge advocate and the panel: they do not communicate or socialise as they used to, just as with the jury. It is accordingly important to know what has been said to the prospective members of the panel prior to the trial, and to ensure that it is the same in every court martial. That is the purpose of my suggestion that it should be in regulations. I shall not take the matter any further at this stage, and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Drayson moved Amendments Nos. 134 to 135:

“(ga) for the variation by the court of a sentence passed by it or the variation or rescission by it of an order made by it;” “(h) for appeals- (i) against any orders (including directions) of the court prohibiting or restricting the publication of any matter or excluding the public from any proceedings (whether made in preliminary proceedings or otherwise); (ii) against any other orders or rulings made in proceedings preliminary to a trial;”

On Question, amendments agreed to.

Clause 162, as amended, agreed to.

Clause 163 [Punishments available to Court Martial]:

[Amendments Nos. 136 and 137 not moved.]

Clause 163 agreed to.

Schedule 3 [Civilians etc: modifications of Court Martial sentencing powers]:

[Amendments Nos. 138 and 139 not moved.]

Schedule 3 agreed to.

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12.15 pm

Lord Drayson moved Amendment No. 139A:

(a) the charge in respect of the offence is one as regards which the person elected Court Martial trial under section 128 (whether or not the charge was amended after election); (b) the charge in respect of the offence was- (i) brought under section 124 in addition to a charge as regards which the person so elected; or (ii) substituted for a charge as regards which the person so elected, or for a charge within sub-paragraph (i), or for a charge so substituted; or (c) the person elected Court Martial trial as regards a charge in respect of another offence and conditions prescribed by Court Martial rules are met. (a) the Court Martial convicts a person of an offence which is relevant by virtue of subsection (1)(a), and (b) subsection (4) (multiple relevant offences) does not apply, the sentence passed in respect of the offence must be such that the commanding officer could have awarded the punishments awarded by that sentence if he had heard the charge summarily and had recorded a finding that the charge had been proved. (a) would have been heard summarily together if no election under section 128 had been made; or (b) are under Court Martial rules to be treated as if they would have been so heard. (a) where subsection (4) applies; (b) where the court convicts a person of an offence which is relevant by virtue of subsection (1)(b) or (c). (a) about the sentencing principles that the Court Martial is to apply in relation to- (i) the sentencing of an offender for one or more relevant offences; or (ii) the sentencing of an offender for an offence with which a relevant offence is associated; (b) restricting the orders that the court may make by virtue of a conviction or acquittal of a relevant offence, including provision- (i) preventing the court from making an order of a particular kind; (ii) restricting the provision that may be made by an order of a particular kind; (c) in relation to any case where a person is convicted of a relevant offence,- (i) as respects appeals; (ii) excluding or restricting powers relating to review of sentence.

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(a) any provision of or made under this Act (including section 254); (b) any provision of the Court Martial Appeals Act 1968.”

On Question, amendment agreed to.

Clause 164 negatived.

Lord Thomas of Gresford moved Amendment No. 140:

The noble Lord said: This is a radical change to the existing system and I am sure that it will meet with opposition, as other radical changes have done. The amendment calls for the sentence in a court martial to be determined by the judge advocate. At the moment, the judge advocate has a vote and a casting vote, but sentencing is determined by the panel as a whole. If courts martial were confined to disciplinary proceedings, it would of course be appropriate for the panel to pass the sentence, but under new Clause 42 of the Bill and existing Section 72 of the Army Act 1955, the court has jurisdiction over the whole body of criminal offences.

Having sat through criminal justice Bill after criminal justice Bill and Bills consolidating sentencing on top of that, noble Lords will be aware that the area of sentencing for criminal offences is difficult and complex. As I have said before, sentencing is an exercise for which the members of the panel have no training whatever. They do not attend sentencing conferences or have the training on sentencing that the most junior assistant recorder in this country receives, let alone any further or higher training for dealing with serious offences, such as rape or manslaughter. Although it is traditional for the president of the court to pass the sentence and for the members of the court martial to determine the sentence, it is contrary to the sentencing practice of the courts of this country. Members of the panel are not obliged to follow any advice that may be given to them by the sentencing judge. Members of the panel do not have experience of the new sentences, such as community service, that are contained in the Bill or of the effect of probation and when such things are appropriate. They do not read Criminal Appeal Reports (Sentencing). They have no guidance whatever.

This is a reform that the Judge Advocate General, Judge Blackett, has promoted. He wants this power. From his experience, he considers it appropriate for the judge advocate, who has the training and experience and is accustomed to passing sentence, to be concerned with sentencing. No doubt where disciplinary or technical matters are concerned the judge advocate can consult the members of the panel, but it should not be the other way around. The expert on sentencing is the judge advocate, not members of the panel, and he should carry that responsibility in the appeal court where any appeals are lodged against the sentence that he has passed.

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With the greatest respect for those who hold and who have held the highest positions within the services, I do not think that it is good enough to uphold the present position. I would not, as a lawyer, attempt to advise or direct the leading members of our services how to conduct a campaign or how to conduct operations. I have no experience in that. Similarly, in the reverse situation, as here, I ask the Committee to agree to what the Judge Advocate General has promoted and supported—that the sentencing power should lie in the right hands, with the experts. I beg to move.

Lord Bramall: Perhaps I may ask the noble Lord what the effect would be in practice if the procedure was the reverse of what he has just advocated. In other words, the court martial, which might have some ideas, would go to the judge advocate and say, “We thought of a sentence on these lines. With all your knowledge and experience, what do you think about it?” He would give his legal advice to the panel. It seems to me that you would come out with very much the same answer.

Earl Attlee: My experience of courts martial is that the judge advocate advises the panel on the appropriate sentence. He tells it what the maximum and the minimum legal sentences are—if there is a minimum. He gives it the tariff and the panel has to decide whether it wants to go to the top or the bottom end of the tariff. In my experience, the judge advocate spends quite a bit of time explaining to the panel what the options are. However, I am undecided on whether to support the noble Lord; I am just saying what happens in my experience.

Lord Boyce: The noble Lord, Lord Thomas, has suggested that the lay members have no experience in sentencing, but often lay members would be involved in sentencing at summary trial. I just put on record the fact that, on many occasions, lay members have experience in sentencing.

Viscount Slim: My experience is that the president would have made himself familiar with the possible sentences before the court sits. Certainly, in my experience, which I admit is many years old, the members of the court have always had a very good discussion with the president and he will elicit from each member what he feels. Of course the judge advocate is very much in play here; I cannot recall sitting on a court martial where, as the noble and gallant Lord said, the president does not ask the advice of the judge advocate—for example, he will say, “Are we on the right lines? What do you think?” Moreover, as the noble Earl said, the minimum and the maximum are given.

In my day, the president, certainly on getting a plea and working out whether the accused was guilty or not, always asked the junior member of the court martial first what his view and judgment were, so that the junior officer was not embarrassed by anything that might be said afterwards.

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I see where the noble Lord is going, but I think of the soldier who expects to be sentenced and punished by the court, who will now be punished by the judge advocate. He will wonder what the president and the other members of the court felt.

Lord Borrie: The noble Earl, Lord Attlee, has helpfully explained the present position, in which the judge advocate will indicate the maximum and the minimum tariffs and the scope for discretion. The noble Viscount, Lord Slim, has explained how the president—if not the other members, but possibly them as well—will have experience of courts martial in previous cases.

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