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However, I find it difficult to see how that matches the enormous experience of sentencing of even the most junior, part-time judges in our civil courts and the Crown Court—recorders—let alone the experienced judges at the Old Bailey and elsewhere. They have not only been on numerous sentencing weekends and courses but have developed enormous experience in individual cases. Surely there is no comparison between the occasional experience of military and naval officers in courts martial and the experience of those who conduct sentencing in our civil courts.

There is a certain logic, simplicity and clarity about the proposals of the noble Lord, Lord Thomas of Gresford, which, as he said, are also the proposals of the Judge Advocate General himself, Judge Blackett—namely, that the panel, the military officers, whether by a simple majority or, as others suggest, more than that, determine guilt and then someone else, the judge advocate in the court martial, determines the sentence from the much greater experience that he will have over any likely president or member of the court martial. I see a great deal of merit in moving towards that division or distinction of responsibility. It is most notable that the Judge Advocate General, with his experience over a very long period in the services, has come up with something that he must know will not be easily accepted by those who reach the highest office in the armed services. We should take that view very seriously indeed and, if the noble Lord does not press his amendment today, no doubt he will bring it back.

Lord Craig of Radley: There must be a presumption in what the noble Lord, Lord Thomas, is suggesting that current arrangements are failing us—and failing us badly. Unless they are failing us badly, I can see little force in the arguments that have been put forward. The arrangements that the services have are peculiar to them. The reason for that is that there is a separate body of law for the services. I am reluctant to see any change, particularly along the lines of the amendment, unless it can be demonstrated that there has been a gross and continuing failure in the arrangements that we now have. On that basis, I oppose the amendment.

12.30 pm

Lord Thomas of Gresford: I do not suggest for a moment that there is gross failure in the current system, but we do not require juries to determine sentences in

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the civil courts. In military courts, however, we are saying in effect that the jury determines the sentence. My experience is far less than that of the Judge Advocate General in courts martial. He is a serving naval officer. His whole legal career has been in the service. He has risen from judge advocate to Judge Advocate of Her Majesty’s Fleet to Judge Advocate General, and is highly regarded, no doubt by the services but certainly by the legal profession. His views therefore carry considerable weight.

If he has drawn the conclusion, if only as a matter of form rather than of substance—to take the point made by the noble and gallant Lord, Lord Bramall—that it is right and obviously consonant with the European convention of requiring a fair trial that the sentencing process is left to the judge advocate, then I bow to him. If that is the view of a man of that experience and standing, who knows the process from the bottom up and who has no doubt prosecuted and defended and otherwise taken part many times in courts martial, I follow it. I see entirely where he is coming from. It is right that trained people should deal with their area of expertise. Surely that is the ethos of the services—trained people should use their expertise in the area for which they are trained, and should not venture into other areas.

Lord Mackay of Clashfern: Can the Minister give us any information about the extent to which there have been over some period, which it might be convenient for him to select, successful appeals on sentence to the courts martial appeal court? It also occurs to me that in the civil system of criminal courts, if we can talk about such a system, the president of the court is the one who sentences, in the sense that the judge is regarded as being in charge of the court during the whole process, although the jury determines guilt or innocence under his direction. In the military situation, the president of the court is in effect the foreman of the jury, if we look to the civil system for comparison. I can see the difficulty that some may have in thinking that someone who is not the president of the court should ultimately determine the court’s decision on the matter of sentence. That may be rather a superficial way of looking at the matter, but it is the way in which the courts martial are set up at the moment, and I do not think that the Bill intends to change that aspect of the courts martial system.

Lord Thomas of Gresford: The noble and learned Lord, Lord Mackay, for whose contribution I am very grateful, brings to mind the fact that until now there has been a reviewing authority; certainly it was condemned by the European Court. The reviewing authority has had the power to change sentences from time to time, and the person who carried out the review was usually, at least in serious cases, the Judge Advocate General. He looked at the conviction, but he also looked at the sentence that had been passed. In a recent case, an eight-year sentence was reduced by the reviewing authority to four years, and is still subject to an appeal on sentence at four years to the Court of Appeal Criminal Division. That is an ongoing case.

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Now that the Bill takes the reviewing authority away, it removes from the system the one person—the Judge Advocate General—who reviewed conviction and sentence in the past. There is now, quite deliberately—I do not object to it at all—a simple channel from the decision taken by the court martial to the courts martial appeal court. The sentencing appeals may therefore be much greater in the future without the check of the reviewing authority to alter an obviously unfair and improper sentence.

Lord Drayson: I have listened carefully to what has been said, but I am sure that noble Lords will not be surprised to learn that I cannot support Amendment No. 140. I have noted the request for information by the noble and learned Lord, Lord Mackay. I do not have the detail, but I will write to him with it.

The Earl of Onslow: The noble Lord, Lord Thomas of Gresford, makes a very interesting point. If the matter is raised on Report, will it be possible for the Minister to make it available then, not only to the noble and learned Lord, Lord Mackay, but to the whole House, because it is very important?

Lord Drayson: I am grateful to the noble Earl. I will do that. Our discussions across the House during the Bill’s passage have been very helpful, and we have aimed as a matter of policy to circulate our briefing notes as widely as possible. I am happy to continue that.

The noble Lord, Lord Thomas of Gresford, says that in service courts, as he describes them, the jury will decide the sentence. I should clarify that, under the Bill, the lay members of the jury and the judge advocate decide together. The judge advocate has a vote on the sentence, and under the Bill he will also have a casting vote. The noble Lord has quoted the Judge Advocate General extensively and cited his deep experience in this area, and it would be helpful if I also quoted him. In his evidence to the Select Committee on the Bill on 26 January, he said:

In his memorandum to the Committee, he also recognised that,

not impossible, as has been suggested. It is the special characteristics of service courts, and, indeed, of the military criminal justice system, which demonstrate that the military context is understood. This, as we have heard, is “indispensable” to preserving the confidence of service personnel in it, and directly underpins operational effectiveness.

Judge advocates are civilians who may have no service experience. The court must be seen, not least by the accused, to appreciate the factors that have an impact on discipline—and ultimately on operational effectiveness—as well as the unique pressures and responsibilities to which service personnel may be subject. As the service chiefs made clear in their

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evidence to the Select Committee on the Bill in another place, the military context must be taken into account when sentencing. We believe it is necessary for the lay members of the court to be fully part of the sentencing process. It is not sufficient for them to fulfil only a consultative role. In fact, the Judge Advocate General went on to say in his evidence about the judge advocate sentencing alone that,

The noble Lord’s view is not shared by all civilians who regularly participate in service proceedings. Mr Mason, a highly experienced defence advocate, told the Select Committee that he was wholly against the idea of a judge advocate dealing with sentencing on his own. He highlighted the important role of lay members with recent operational experience to the sentencing process.

Of course, the judge advocate gives advice to the lay members on sentencing. As he indicated, the Judge Advocate General has recently provided guidelines on sentencing, which address one of the points that the noble Lord makes. But we continue to believe that we need to involve the lay members in the sentencing decision. This does not affect the fairness of the process, but gives an assurance that all proper factors are taken into account and given the proper weight when the sentence is determined. On that basis, I hope that the noble Lord will agree to withdraw his amendment.

Lord Thomas of Gresford: My amendment includes in subsection (2):

I do not suggest that the judge advocate should sentence on his own, as he would in the Crown Court, without consulting the members of the court martial and obtaining their views on the military disciplinary aspects of the case. I suggest that the responsibility for the sentence should rest with the judge. The Minister has said that the judge advocate does play a part. He has a vote; indeed, he has a casting vote. But he may be in a minority of one when the original vote is taken. We must remember that these decisions are taken by simple majority, not by a unanimous view. It may not be possible for him to exercise a casting vote; he may be overruled by the panel.

The difference in a sentence may not be between five years and four years. For a defendant, it may be between being sent to prison, remanded or losing his liberty in the service context. He may be sent to a civil prison if he receives a sentence of over two years or he may be in military confinement if it is less. It could be the difference between the board wishing to send someone to prison for less than two years or a community sentence about which the judge knows. He may not have served as a clandestine solicitor in a community service operation, as the Lord Chief Justice has, but he will know a little more about alternative forms of punishment. It is not right that although the judge participates he has initially only one vote and can be overruled by all the members of

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the panel. I shall return to that matter on Report. I hope that Members of the Committee and the Minister will think more widely about the problem so that we can have as good a debate. Meanwhile, I thank all those who have participated today.

Lord Mayhew of Twysden: Perhaps the noble Lord will take a minute to deal a little more fully with the point raised by the noble and gallant Lord, Lord Craig. Since the question of confidence has featured so much in our discussions, how will confidence among the services be enhanced, if at all, if this amendment is carried, in the light of the circumstances whereby, as the noble Lord said, there is no case to be made for any failure in the present system? He put it a little stronger: he said that he was not alleging that there had been any gross failure in the present system. It is the question raised by the noble and gallant Lord. Perhaps the noble Lord will deal with the issue of confidence a little more.

12.45 pm

Lord Thomas of Gresford: First, if the Minister is to provide us with details of successful appeals on sentence to the Court of Appeal, it would not give a fair picture unless we also saw the number of occasions on which the reviewing authority had altered a sentence. We need to look at that because it goes to the success of the system. I repeat that I do not allege that the system is a failure. I do not think that it is possible to prove that a civil court would have passed this sentence as opposed to that sentence. I am saying that it is appropriate that those who are tried before a court martial should feel that they are being dealt with by a professional and an expert, and that when, and if, they go to prison the person sentencing knows all the possible alternatives. I accept that the judge can advise the panel about those matters, but he can be overruled or outvoted. It is a confidence-building factor for a person appearing in a court martial that someone who is independent of the panel is there to ensure that he gets fair play on the questions of conviction and sentence, and, further, that his sentence is not disproportionate to that which he would receive in civilian life. Those are the confidence-building factors on which I would rely. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 165 to 168 agreed to.

Schedule 4 agreed to.

Clauses 169 to 173 agreed to.

Clause 174 [Service compensation orders]:

[Amendment No. 141 not moved.]

Clause 174 agreed to.

Clauses 175 to 180 agreed to.

Schedule 5 agreed to.

Clause 181 agreed to.

Schedule 6 agreed to.

Clauses 182 and 183 agreed to.

Clause 184 [Conditional or absolute discharge]:

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Lord Drayson moved Amendment No. 142:

The noble Lord said: These are all detailed and technical government amendments. I should be happy to provide a detailed explanation if the Members of the Committee wish, but I am sure that they will recall that I wrote to noble Lords when the amendments were tabled on 27 September, setting out the reasons for the changes that we seek. In view of that, and with the leave of the Committee, I do not propose to detain Members further on this group. I beg to move.

On Question, amendment agreed to.

Clause 184, as amended, agreed to.

Clause 185 [Commission of further offence by person conditionally discharged]:

Lord Drayson moved Amendment No. 143:

On Question, amendment agreed to.

Clause 185, as amended, agreed to.

Clauses 186 to 191 agreed to.

Clause 192 [Activation by CO of suspended sentence of service detention]:

Lord Drayson moved Amendment No. 144:

On Question, amendment agreed to.

Clause 192, as amended, agreed to.

Clause 193 agreed to.

Clause 194 [Suspended sentences: powers of SAC]:

Lord Drayson moved Amendment No. 145:

(a) whether to substitute an order under section 192, or (b) the terms of any such substituted order, the Summary Appeal Court must take account of any period of the suspended sentence that the appellant served.”

On Question, amendment agreed to.

Clause 194, as amended, agreed to.

Clauses 195 to 205 agreed to.

Schedule 7 agreed to.

Clauses 206 to 235 agreed to.

Clause 236 [Duty to have regard to purposes of sentencing etc]:

[Amendment No. 146 not moved.]

Lord Garden moved Amendment No. 147:

The noble Lord said: I shall not detain noble Lords for long. In moving Amendment No. 147 I shall speak also to Amendments Nos. 151 and 154 in this grouping. While we welcome in the Bill the identification of the welfare needs of the under-18s,

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presumably the welfare of all offenders is a cause for concern. My amendment seeks to make that clear by providing that we must have “particular” regard to the welfare of those under 18. Amendment No. 151 addresses reductions in rank in Clause 247. Here we are looking to identify what happens when reductions are made between different ranks, in particular thinking of the severe effects when someone of the rank of sergeant is reduced by one level. His or her social life changes; he moves from the sergeants’ mess to that of more junior ranks, and there will be a change in accommodation that is a very visible downgrading. Often it may be appropriate to impose such a change in rank, but we should ensure that the Bill makes it clear that rank changes are affected by which ranks we are talking about.

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