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As we have heard, the case was about the son of a serviceman who was tried by court martial in 1995 for the murder of a civilian in Germany. The court martial was subject to the same objections as were found to exist in the Findlay case in 1996, and which were remedied by the Armed Forces Act 1996. So it is no surprise that the European court also decided in Martin that the court martial was not compliant. The court did not decide that courts martial should not try civilians or that they should not try civilian juveniles, but it stated the important principle that a military jurisdiction should only be exercised over civilians if there are “compelling reasons” to do so. In Martin, there was the possibility of civilian trial in the UK, because the charge was murder. The European court did not decide whether there had been compelling reasons for a court-martial trial. It did not need to, because, as I have said, it decided the case on the basis that the court martial was not compliant. It did not go into what it thought would be compelling reasons. In the Martin case, the reasons for court-martial trial were mainly to do with the availability of witnesses, most of whom were German. But there were other factors.

Lord Thomas of Gresford: My Lords, will the Minister accept that cases are being tried in this country in which witnesses are being brought from all parts of the world, including Iraq?

Lord Drayson: My Lords, I accept the noble Lord’s point. In the Martin case there were other factors. Besides his age, Martin was no longer subject to service law. He had been back in the UK for over a year and his father was no longer in the Army. The European Court of Human Rights commented that it had “considerable doubts” about whether it would have found the reasons for court-martial trial “compelling”. I believe that we should provide for all civilians subject to service discipline to be subject to a system of investigation and trial which will apply the criminal law of England and Wales, which conducts its proceedings in English and which is ECHR compliant. This is especially important for contractors and others who increasingly accompany our forces on operations abroad.

The noble Lord, Lord Thomas of Gresford, this evening stated that civilians subject to service law should not be subject to trial by court martial for any offence in the UK carrying life imprisonment. I

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should make it clear that a civilian is never subject to service law for offences committed in the United Kingdom. That jurisdiction only applies to the services abroad.

Lord Thomas of Gresford: My Lords, the amendment does not confine itself to civilians. It refers, as does the current Army Act, to serving soldiers or service personnel, as well as to civilians subject to service law.

Lord Drayson: My Lords, I am grateful to the noble Lord, but I thought that it was important to make that point.

It is in the vital interests of the services, the civilians who live and work with them and the civilian population among whom they operate that there is a fair and robust system of justice outside the United Kingdom to deal with offences by civilians, as well as service personnel. We must recognise that the use of civilians deployed with our Armed Forces has increased in recent years. This is the reason for our general approach in this area.

The largest constituency affected is our service families overseas. We realise that 20,000 or so children accompany them. This presents real challenges. We must accept, however, that from time to time these under 18s may commit serious offences against other service dependants or even against service personnel in UK service bases overseas. In these circumstances, as the noble Lords, Lord Borrie and Lord Kingsland, have said, the foreign local jurisdiction may be highly undesirable. Even if it affords a compliant court, it will not apply the law of England and Wales and may not conduct proceedings in English. I believe that we would be failing in our responsibilities if we did not provide that. Of course we must ensure that the court martial makes proper provision for juveniles and I know that judge advocates receive the same training as Crown Court judges in this respect.

Amendment No. 35 seeks to permit service personnel and civilians subject to service discipline to elect trial before civilian courts in the United Kingdom where those civilian courts have extra-territorial jurisdiction. I start by restating two key principles that underpin the Bill and with which, I am sure, no noble Lord would disagree. The first is that our Armed Forces require a separate system of military justice. The second is that the service system must underpin service discipline at all times. The military context in which offences occur is important in operational and non-operational environments. Although it is not absolutely clear, it appears that the purpose of Amendment No. 35 is to permit service personnel and civilians subject to service discipline facing the most serious criminal charges to elect trial before the civilian courts. It therefore undermines both the key principles just described. Giving such persons the right to opt out of the military justice system, which would be the effect of the amendment, would have a detrimental effect on its standing. It would suggest a lack of faith in the service system,

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and that the military context is not crucial to the handling of serious offences committed in the service environment.

I am convinced of the case for a separate military justice system. I recognise the importance of the military context. I believe that our military criminal justice system is competent and compliant. The military justice system is well able to deal with the most serious cases. The recent decision of the Judge Advocate General to appoint a High Court judge to a court martial and the willingness of service prosecutors from time to time to instruct civilian counsel demonstrates that, on those rare occasions when specialist experience is required, the military justice system can import it. The result is that the most serious and complex cases can be dealt with and the system, in turn, commands the confidence of the public and the Armed Forces. It is not hard to envisage circumstances where the interests of justice might be best served and victims’ rights best protected by trying charges together. The amendment would prevent exactly that, where a series of serious criminal offences included some committed overseas. Similarly, if the alleged offences included both criminal conduct offences and service discipline offences, should the accused be able to force separate hearings? Again, that cannot be right. A key characteristic of the military criminal justice system is that it is able to conduct trials anywhere in the world. In recent years courts martial have sat in the United States, Belize and the Falkland Islands, and there is a trial pending in Brunei later this year. Trials overseas often make good legal as well as military sense. There are many reasons for a portable, effective and, of course, compliant court-martial system. Making that system a hostage to the preference of the accused in the way proposed would not work.

In response to Amendment No. 31, I have set out our position on civilians subject to service discipline, following the recent case of Martin. I believe that our military system is compliant and that it delivers a high-quality system of English law in the English language, anywhere in the world. However, if, on consideration, we need to make changes in the light of the judgment, we will do so. Powers already in the Bill make that possible. In doing so, we will take careful account of any requirement of compelling circumstances regarding the trial of civilians subject to service discipline. For the reasons I have given, I hope that the noble Lord will withdraw his amendment.

Lord Thomas of Gresford: My Lords, the very point I seek to make is that the European court has held that the system is not compliant. It is not enough for the Minister to come here three or four days later and say “I believe it to be compliant” when the European court has held otherwise. It is therefore for the Government to make a proper response. For that reason I will not be pressing Amendment No. 31 tonight.

On the broader issues, of course I accept that there should be a military disciplinary system. I said in Committee that it is right that defendants should be tried in such a way overseas. The point about Amendment No. 30 is that it relates to offences in this country—murder and rape in this country. Why should a defendant, because he is a soldier as opposed to a policeman or a postman, find that somebody

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chooses to try him by a court martial rather than allowing him the greater procedural safeguards in the Crown Court?

The most obvious procedural safeguard, which we will debate shortly, is the requirement for unanimity in a jury or a majority verdict of 10 to two. As your Lordships are aware, in a court martial only a simple majority is required. If five officers sit they can decide guilt by three to two—or innocence by three to two if it comes to that. Similarly, if three are sitting they can decide on offences—to which life imprisonment is annexed for offences committed in this country, if the amendment to the Act that the Government propose goes through—by a simple majority.

Why should a serviceman, or a civilian subject to service discipline, be tried on these important issues for an offence committed in this country by a number of officers, with perhaps one warrant officer sitting in? Maybe we should go back to Cromwell's days. Maybe the court martial system is so great that we should get rid of juries altogether and have military commissions sitting all over the country deciding guilt or innocence. The fact that a person is a serviceman or the son, daughter or wife of a serviceman, should not mean that he is to be treated differently for an offence committed in this country. That is Amendment No. 30. I will come back to that because, as I said, I wish to broaden the area of the exceptions.

Amendment No. 35 extends slightly a provision that has existed in our law for 150 years, since 1861. No reason given by the Government for rejecting any of these amendments carries any logical sense other than to state over and over again that we must keep military discipline. That is not, in my submission, a proper way to approach legislation of this sort. I beg leave to withdraw Amendment No. 30.

Amendment, by leave, withdrawn.

[Amendment No. 31 not moved.]

5.45 pm

Lord Campbell of Alloway moved Amendment No. 32:

The noble Lord said: My Lords, in moving Amendment No. 32, which is supported by the noble Lord, Lord Ramsbotham, in its retabled form, I shall speak also to Amendments Nos. 33 and 34 in the group, which are not consistent with the intent of Amendment No. 32 and would inhibit the vital exercise of discretion of commanders in the field, and are not acceptable as conferring statutory force on rules of engagement.

To save time the argument that I deploy will be found in the speech of the noble Lord, Lord Drayson, in Committee on 11 October at cols. 296-97 and I have tried to cut my speech down. The intendment of Amendment No. 32 is to provide a defence under a

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new service law, as spoken to by the noble and gallant Lords at Second Reading, for the armed serviceman on active service who complies or intends to comply with his orders and rules of engagement. This amendment achieves that by a rebuttal of presumption in favour of the serviceman, which assuredly is no absolute defence, as was the proposal in old Amendment No. 61.

The rules of engagement as such do not have statutory force. The defence applies to trials for homicide or breach of international convention, either under the civil jurisdiction in exceptional circumstances or by courts martial.

This is a probing amendment for your Lordships’ consideration, as spoken to by the noble and gallant Lord, Lord Inge, on Second Reading. This defence is but part of a fair and just regime which recognises the realities of armed combat and peacekeeping and can be trusted by the servicemen. The amendment acknowledges that rules of engagement, if written, are but a framework within which verbal orders and rules of engagement, which often form an amalgam, are given in context with a specific operation, whether on combat or peacekeeping, as spoken to by the noble and gallant Lord, Lord Bramall, on Second Reading, and assented to by my noble and learned friend Lord Mayhew of Twysden, who is in his place. The noble and gallant Lord said:

The introduction of a new services law was heralded in the evidence of the Judge Advocate General, Judge Blackett, and was assented to by the noble and gallant Lord, Lord Boyce. It was the evidence given to a Select Committee of another place. It was referred to in the speech of the noble Lord, Lord Ramsbotham, on Second Reading at col. 252. It was also assented to by the noble and gallant Lords, Lord Guthrie of Craigiebank and Lord Vincent of Coleshill. I shall cite a small but crucial passage. The amendment is dependent only on the acceptance of a new service law—a military law. In another context, I think that the noble Lord, Lord Drayson, was speaking about that some moments ago. The noble Lord, Lord Ramsbotham, cited Judge Blackett, saying:

That is the basis on which this House is, so to speak, built.

I shall cite two short passages from the speech made by the noble Lord, Lord Drayson, which support the principle of the amendment—there being as yet no provision in the Bill that gives effect to such appraisal. He said:

In the other passage, he stated:

Unfortunately, the noble Viscount is not in his place.

Those are the sort of twin pillars. It now comes to give but one example where, had the amendment been in force and this defence available, it would have saved a conviction for murder. I shall take it shortly because it was dealt with at some length in Committee. If this defence had been available to the Scots Guardsmen, Fisher and Wright, they would not have been convicted of murder, as their evidence on oath that they intended to comply with the orders, rules of engagement and training—they were both pretty young, so training was relevant—was wholly accepted by the Army board. It is quite obvious that if they had had that defence open to them, it would have been very unlikely that they would have been disbelieved on their oath.

However, their only defence was self-defence—as to fear their murder by coffee jar bomb attack. That was rejected by the trial judge. There was no other defence. As it was a finding of fact, it foreclosed on any appeal to the Court of Appeal or application to the Appellate Committee of this House or to the CCRC to refer the case for reconsideration to the Court of Appeal. A civil system of law had hit the buffers of its own making. The stain of a conviction for murder is indelible, unless there is fresh evidence. There was none. I beg to move.

Lord Kingsland moved, as an amendment to Amendment No. 32, Amendment No. 33:

The noble Lord said: My Lords, on Amendments Nos. 33 and 34, your Lordships will recall that in Committee, a single amendment, Amendment No. 61, dealt with two related but distinct issues: that of an absolute defence and that of the legal status of rules of engagement. Those two issues were conflated in the amendment, which was, by our own admission, probing. What your Lordships have before you tonight is a line of amendments which separates them.

My noble friend Lord Campbell has dealt with the question of a defence and we have the text of his Amendment No. 32. I shall not add anything to what he has said—save only that my amendment to his amendment is not in any way intended to undermine the principle that he seeks to advance in your Lordships' House, but simply to suggest that orders

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ought to be seen in the context of rules of engagement, rather than vice versa. My noble friend may not be entirely convinced of that; but I do not think that the point is sufficiently important for me to take it beyond stating our difference.

Rather, I want to talk about the other aspect, which is the question of the status of rules of engagement. I put on record my gratitude to the Minister, who has helpfully provided me with an extremely perspicacious document produced by his officials in the ministry, who have clearly spent a great deal of time thinking about this matter. I am much obliged to him and to them for what they have done.

6 pm

My amendments seek to meet the two primary criticisms that have been brought to bear on me from on high about enshrining the rules of engagement. The first relates to flexibility and the desirability of commanders being able to refashion and reformulate the rules of engagement, sometimes over a period of hours or within even smaller time limits. The second relates to confidentiality and the importance of the rules of engagement not getting into the hands of the enemy.

We have abandoned on Report the very specific drafting that we adopted in Committee, to say simply that,

This, I submit, meets both the concerns expressed by the Minister. It does not matter how often the rules of engagement change in the course of an operation; whatever they happen to be at the relevant moment when the soldier’s action is called into question, they will have statutory force. So it is not necessary to enshrine them in any document, although of course they will be in some documentary form in a unit or in some formation above a unit. Nevertheless, because the law requires them to have statutory force, they will, by that very requirement, have the force that I seek. It flows from that that, as there will be no publication of the rules of engagement, they will by their very nature be confidential. I therefore believe that the two objections made by the Minister do not apply.

Why is it so important to give rules of engagement statutory force? I need only remind your Lordships of the arguments that I advanced in Committee. There are primarily two such arguments. First, the new role that Article 7 of the European Convention on Human Rights plays in our law requires anyone contemplating an activity to know before he undertakes that activity whether he is likely to commit a crime. That applies precisely to a soldier on the battlefield, who needs to know what legal framework is brought to bear on what he can and cannot do. He needs certainty, or as near certainty as one can give—one cannot give absolute certainty. At the end of the day, even in the context of rules of engagement, he must, of course, exercise only force that is reasonable and apposite in the circumstances; but apart from that necessary common-law qualification, the rules of engagement provide him with a framework in which he can have confidence.

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The other reason is particularly germane to the kind of operations that we undertake in Iraq and Afghanistan. Under the convention of the International Criminal Court, it is perfectly possible for a soldier to do something in breach of that convention which gives the state in which he is conducting his operations the right to try him for a war crime. As that is so, it is vital that a soldier knows exactly where he stands. I can think of no more serious threat to one of our soldiers abroad than the possibility of being tried for a war crime by a state that does not respect human rights. The rules of engagement give him a degree of certainty that otherwise does not exist.

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