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Finally, Amendment No. 154 addresses the responsibilities for explaining the sentence set out in Clause 251. This is a probing amendment to see what the rationale is for the Secretary of State having the power to override a sensible set of rules. It is difficult to think under what circumstances such an order would need to be made. My amendment seeks to find out why the Ministry of Defence thinks it necessary to have this power. I beg to move.

Earl Attlee: I have tabled Amendment No. 156 in this group. It suggests that a civilian court must take into account all the effects of a sentence on a service person’s career. The Minister will point out that the court will or should do so in any case but the problem is that the service person himself might not fully appreciate all the consequences of a civilian sentence and therefore those consequences would not be raised in mitigation either by himself or by his solicitor. For instance, in many service trades a driving licence is essential. No licence equals no trade; no trade equals no promotion; having no promotion could possibly mean that his service might have to be terminated under regulations. That, in turn, could affect pension rights. I do not know whether the Minister can offer me any help on this point, but I am not convinced that the civilian courts always fully understand the consequences of their sentences for civilian offences.

Lord Drayson: I shall respond to Amendment 147 and then to Amendments Nos. 151 to 156 in this group. Amendment No. 147 would require the court or officer to have particular regard to the welfare of an offender aged under 18. Clause 236(2), based on Section 44 of the Children and Young Persons Act 1933, already requires that if an offender is aged under 18 the court or officer must have regard to his welfare. The fact that welfare is an additional factor to be taken into account when sentencing under 18 year-olds means that in our view the Bill already sufficiently protects their welfare. The intention behind the amendment may be that where the matter points to one sentence but another sentence would be better for the offender’s welfare, the court or officer must impose the latter sentence—in other words, that the offender’s welfare should be paramount. Obviously this is not the policy because it would not provide sufficient weight for the other objectives in the clause.

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A sentence for a service offence may consist of or include forfeiture of seniority, reduction in rank or disrating. Clause 247 provides that the court may not pass such a sentence unless the offence or offences are serious enough to deserve them. In considering whether the seriousness of the offence warranted a particular sentence, we are satisfied that, as now, the court would consider the full effect of particular reductions in rank and therefore I do not think that Amendment No. 151 is necessary. When a court or officer imposes a fine, the court or officer is required under Clause 248 to inquire into the offender’s financial circumstances and to take them into account before fixing the amount of the fine. Account must also be taken of the circumstances of the case and the size of the fine must reflect the seriousness of the offence. This reflects similar provisions in the Criminal Justice Act 2003.

Amendment No. 152 would provide that the court or officer should make such a consideration only if the fine to be imposed is in excess of the equivalent of seven days’ pay. With respect to the noble Lord, this is arbitrary and takes no account of the varying circumstances that might apply to individuals in terms of their rates of pay and, for example, their necessary outgoings in support of a family. As in civilian courts, an assessment of means should be used regardless of the level of the fine to be imposed.

Amendment No. 153 also concerns Clause 248 and seeks to leave out subsection (3), which necessarily provides that in fixing the amount of a fine the court must take into account the circumstances of a case, including the offender’s financial circumstances. Subsection (3) is important as subsection (1) is merely a requirement to inquire into those circumstances. It also means that the court must take into account circumstances other than the offender’s financial circumstances and the seriousness of the offence. Subsection (3) is therefore an important provision that mirrors the Criminal Justice Act 2003, and for these reasons I cannot accept the amendment.

As I have said, wherever possible the Bill seeks to mirror practice in the civilian criminal courts, in particular changes to sentencing made under the Criminal Justice Act 2003. Clause 251 also requires a court or commanding officer, when passing sentence, to explain the reasons for and effect of that sentence as well as any powers of review. It replicates provisions in Section 174 of the Criminal Justice Act 2003. Clause 251(3) reproduces the power of the Secretary of State at subsection (4) of the 2003 Act to prescribe by order certain exemptions and other detailed provisions. Amendment No. 154 would have the effect of putting the Secretary of State under a duty to make prescription of this type rather than giving him a power to do so. This would be an unnecessary and unhelpful departure from civilian legislation—the same point also applies to Amendment No. 155, which seeks to remove subsection (3) altogether.

Amendment No. 156 on a civilian court’s requirement to consider widely the effects of any sentence passed on a member of the Armed Forces is unnecessary. We believe that civilian courts will routinely consider the effects of a sentence on the

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offender’s career and it would be inappropriate to single out personnel in this way. Nevertheless, I have listened to the example given by the noble Earl, Lord Attlee, in respect of driving offences and I will reflect further upon it.

Service personnel are invariably accompanied when attending a civilian court by an officer who, on behalf of the accused, can respond to the court’s questions as to the effect of sentence on the individual’s career. None the less, I feel that the noble Earl has made a point in relation to this.

Earl Attlee: The Minister used the word “invariably”. Is he quite confident about that?

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Lord Drayson: I recognise the concern alluded to by the noble Earl. I will therefore ask my researchers to make sure that that is a word I can fairly use.

Clause 270 allows modification of civilian sentencing provisions so that they can operate appropriately in relation to service offences.

I have been through, at some length, the issues relating to these various amendments. I hope that the noble Lord will feel able to withdraw his amendment.

Earl Attlee: I have an exceptionally bad habit of not moving amendments in order to make good progress. The Minister has expertly shot me down on a few amendments that I did not actually move. I hope that anyone reading Hansard will appreciate that I did not move the amendments on which he shot me down.

Lord Garden: I am grateful to the Minister. It was helpful to hear how he saw the welfare issues raised in the amendment relating to the under-18s and the important question of reductions in rank. I was less happy with his response to Amendment No. 154 in that he said this is merely a repeat of what is in the equivalent civil legislation. I asked under what circumstances a Secretary of State would need to do this in the context of the military. I would find it helpful if between now and Report the Minister could write with some examples.

Lord Drayson: I am happy to write to the noble Lord and give him that information.

Lord Garden: With that assurance, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 236 agreed to.

Clauses 237 to 244 agreed to.

Clause 245 [Crediting of time in service custody: terms of imprisonment and detention]:

Lord Drayson moved Amendment No. 148:

On Question, amendment agreed to.

Clause 245, as amended, agreed to.

Clause 246 [Crediting of time in service custody: supplementary]:

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Lord Drayson moved Amendments Nos. 149 and 150:

On Question, amendments agreed to.

Clause 246, as amended, agreed to.

Clause 247 [Forfeiture of seniority and reduction in rank or disrating: general restriction]:

[Amendment No. 151 not moved.]

Clause 247 agreed to.

Clause 248 [Fixing of fines]:

[Amendments Nos. 152 and 153 not moved.]

Clause 248 agreed to.

Clauses 249 and 250 agreed to.

Clause 251 [Duty to give reasons and explain sentence]:

[Amendments Nos. 154 and 155 not moved.]

Clause 251 agreed to.

Clauses 252 to 269 agreed to.

Clause 270 [Civilian courts dealing with service offences]:

[Amendment No. 156 not moved.]

Clause 270 agreed to.

Clause 271 agreed to.

Schedule 8 [Amendment of the Courts-Martial (Appeals) Act 1968]:

Lord Thomas of Gresford moved Amendment No. 156A:

(a) an order under section 4 or 11 of the Contempt of Court Act 1981 made in relation to any trial by the Court Martial; (b) any order restricting the access of the public to the whole or any part of a trial by the Court Martial or to any proceedings ancillary to such a trial; and (c) any order restricting the publication of any report of the whole or any part of a trial on indictment or any such ancillary proceedings; and the decision of the Court Martial Appeal Court shall be final. (a) to order the production in court of any transcript or note of proceedings or other document; (b) to give directions as to persons who are to be parties to the appeal or who may be parties to it if they wish and as to service of documents on any person; and the Court Martial Appeal Court shall have the same powers as the single judge.

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(a) to stay any proceedings in any other court until after the appeal is disposed of; (b) to confirm, reverse or vary the order complained of; and (c) to make such order as to costs as it thinks fit.

The noble Lord said: Sometimes in a court martial it is necessary for part of the proceedings to be subject to reporting restrictions. As a result of that the proceedings are not fully covered by the media. It may also be the case that some part of the proceedings, due to the sensitivity of what is being discussed—particularly in a court martial—will be held in camera and obviously cannot be reported. There is a lacuna in the provision for reporting restrictions in that, unlike the Crown Court, there is no right of appeal from the decision of the judge advocate when he imposes these reporting restrictions.

This has been addressed by an amendment in the House of Commons to Clause 162(3)(h) and (8), and we have today amended paragraph (h) by Amendment No. 134A. So the Government, appreciating that there is this absence for an appeal by the media against reporting restrictions, have now included a provision for appeals to be made to the Court Martial Appeal Court and are proposing that there should be regulations to that effect set out in the court martial rules which are to be made by the Secretary of State under Clause 162.

I look for an explanation from the Minister as to why rules are being used for this purpose. Amendment No. 156A seeks to insert into the Courts-Martial (Appeals) Act like provisions to those which apply in the Crown Court so that the system of appeals and the powers of the Court Martial Appeal Court in relation to an appeal on reporting restrictions are set out on the face of the Bill and not contained in rules and regulations at a later stage. I see no reason why the court martial procedure should be any different from the Crown Court procedure in a matter of this nature.

Both the Government and myself are clearly on the same lines in seeking to have an appeal procedure, the lack of which results from the curious unintended consequence of the abolition of judicial review in relation to courts martial in 2001 following a case which was successfully pursued in the Divisional Court. It is an anomaly. But, as I say, we are both on the same lines. I look forward to hearing why it is that the Government wish to deal with this by way of rules and not by putting it in the Bill. I beg to move.

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Lord Drayson: As the noble Lord, Lord Thomas of Gresford, said, we have dealt with a number of these points. For example, we have dealt with the point on reporting restrictions; we have provided for such an appeal and we have already discussed this in Amendment No. 134A. We are also providing this for existing courts martial in another amendment.

As to the point the noble Lord made in relation to rules, we believe that this is a procedural matter and does not need to be in the Bill. I have written to the noble Lord about this issue at some length and described how the matters set out in Amendment No. 156A are provided for in the Bill or in government amendments. Having written to the noble Lord, I hope that he is prepared to withdraw the amendment.

Lord Thomas of Gresford: Save for the fact that I think this is an important issue which should be on the face of the Bill, the noble Lord and I are obviously after the same thing. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 8 agreed to.

Clauses 272 to 274 agreed to.

Clause 275 [Compensation for miscarriages of justice]:

Lord Garden moved Amendment No. 157:

The noble Lord said: Our rather simple amendment questions whether it is appropriate that the Secretary of State is able to override compensation for miscarriages of justice when the Secretary of State is doubtless one of the interested parties. We are looking only for some form of independent non-Ministry of Defence alternative. The amendment suggests that it should be the Attorney-General, but we would be happy to see any independent assessment that the Government suggest. I beg to move.

Lord Drayson: We are aiming to achieve a situation in which the military justice system, as a separate system of service law, is aligned with the civil system wherever possible. Given that aim, which is a fundamental underlying principle of the Bill, we feel it is appropriate for this role to be undertaken by the Secretary of State and the Ministry of Defence.

Lord Garden: I am grateful to the Minister. I am not sure whether his argument takes us any further forward, but it is probably beyond the Committee’s powers to change all the legal arrangements for both the civil and military systems. I put on record my slight discomfort, but I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 275 agreed to.

Schedule 9 [Assessors of compensation for miscarriages of justice]:

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Lord Drayson moved Amendment No. 157A:

On Question, amendment agreed to.

Schedule 9, as amended, agreed to.

Clauses 276 and 277 agreed to.

Schedule 10 agreed to.

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