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The amendments propose appeals to the tribunal on three counts. In the case of discharge and the resignation of a commission, service personnel already have the right to respond before the discharge or resignation is made final, and thereafter the right to

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redress should they feel there are grounds for complaint. Equally, where an individual is required to pay for the loss or damage of service equipment, that requirement may be as a result of summary proceedings against which he has the right of appeal or, if not, representations through the chain of command, and, ultimately, service complaints are available.

Given the limited grounds proposed for the tribunal, the redress system would still be required for other cases. We have confidence in the streamlined redress system that the Bill provides and do not think that it would be right to introduce a totally different system for certain cases. The tribunal would represent an unnecessary and bureaucratic change that would serve only to delay and complicate matters.

I note the points made by the noble Lord relating to the services ombudsman. Given what I have said, I request the noble Earl to withdraw the amendment.

Earl Attlee: My Lords, I am extremely grateful to the noble Lord, Lord Garden, for his comments on the amendment. I tabled it as I have witnessed the problems that it seeks to address. I am aware of situations where servicemen have been required to resign or have been discharged and where the redress of grievance procedure is not fit for purpose. I hope that the Minister will inform me in writing—he is extremely reliable in that regard—although the Bill may by then have completed its passage, how many redress of grievance claims have been made in respect of discharge or requirement to resign a commission, how long each has continued and how many are outstanding. Frankly, I am not happy about the increasing use of administrative action to get round the problems that we have created by making it harder to exercise summary jurisdiction. However, that is not something that we want to put in the Bill. We have a lot still to do. For the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 39 to 48 not moved.]

Clause 155 [Constitution of the Court Martial]:

7.15 pm

Lord Drayson moved Amendment No. 49:

(a) a judge advocate; and (b) at least three but not more than five other persons (“lay members”). (a) at least five but not more than seven lay members; or (b) no lay members. (a) a prescribed number of the lay members must be officers or warrant officers qualified for membership under section 156 and not ineligible by virtue of section 157; and (b) the rest must be officers so qualified and not so ineligible.

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The noble Lord said: My Lords, I will deal first with all the government amendments in this group. These amendments deal with the minimum and maximum numbers of lay members required for a court martial. In Committee I said that I would consider noble Lords’ arguments, in particular those of the noble Earl, Lord Attlee, and the noble Lord, Lord Thomas of Gresford, about the desirability of stipulating the minimum and maximum number of lay members of the court martial in the Bill rather than in rules.

The combined effect of these amendments is that there will ordinarily be a minimum requirement of three members. But, in cases prescribed in regulations, the minimum number will be five. Those cases where five will be required will be decided by objective criteria, for example “all Schedule 2 offences”. The size of the court martial panel therefore broadly reflects the current position in the Army and Air Force district and general courts martial.

In addition, these amendments allow for regulations, which will be subject to the affirmative procedure, to provide other criteria which will allow a further two members to be added to the minimum requirement. It will be for a judge advocate to decide whether to direct the court administration officer to specify additional members of the panel, and he will be able to do so only in limited circumstances.

The relevant criteria will focus on matters such as the likely length or location of the trial, particularly when held overseas, other than in Germany. The reason that we need to have the flexibility to have additional members specified for a trial is to avoid the problem of a trial collapsing because a lay member drops out for some reason. With additional members a trial may proceed even if one or two members drop out, provided that the number of members does not drop below the required minimum.

The amendment also provides for rules to allow the judge advocate to sit alone in certain circumstances. There may, for example, be legal matters to decide, which must be done in the absence of the lay members so as not to prejudice their findings of fact.

In the light of that explanation I hope that noble Lords will feel able to support these amendments. I beg to move.

Lord Thomas of Gresford: My Lords, other matters arise in this grouping. The noble Lord, Lord Drayson, has followed some of the suggestions made in Committee, for which I am grateful. However, I say in traditional Liberal Democrat tones that he does not go far enough.

The points of principle to which I refer in Amendments Nos. 50 and 51 are important. I imagine that to those who have been in the services and have sat on courts martial it must seem very odd that in America a court martial can consist of a cross-section of the Armed Forces, as opposed to officers and warrant officers. However, as I said previously, if one looks at the matter from the point of view of the defendant who is seeking a fair trial, there is a basic principle involved.

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The basic principle as set out in Magna Carta is that he should be tried by his peers. The private soldier who appears before officers cannot expect them to have the same understanding of the circumstances in which he committed offences as a jury drawn from a cross-section of the community, particularly if he is charged with a civil offence.

I pose again the point I made in Committee. First, would it not seem odd for a policeman to be charged or tried by senior police officers or for firemen to be tried by senior fire officers, or for someone working in the City to be tried by senior accountants or financiers from the City? Throughout the community it can always be said, “We are part of a special group. We have special rules that only we understand. Therefore, it is only right that we should be the people who try the underling who is brought before us because of his misdemeanours. We are part of such an arcane mini-society that only we can understand the matter”. That is not the principle on which the criminal law generally acts in this country. Whatever a person’s position, when he is brought before the ordinary criminal courts of this country he is tried by a cross-section of the community with wide experience of all matters and he can expect them to have a full understanding of his background and position.

Secondly, Amendment No. 51 proposes that the court martial should consist of a cross-services section of people. I understand that there is a considerable desire in the services for them to remain separate. They have different traditions in many regards, which we respect. But surely the armed services should be looked at as a whole in the context of a Bill which brings them together for the purposes of courts martial and criminal proceedings. A Director of Service Prosecutions covers all branches of the services. Amendment No. 58, in the name of the noble Lord, Lord Astor, suggests that,

That seems inappropriate. Surely it is right that experience across the services should be shared and that there should not develop one level of understanding or of justice in one service and another level in another.

I shall not pursue Amendment No. 52 at all. Amendment No. 55 would simply require the qualifications for membership of the court martial to be limited to a serving member of the Armed Forces without reference to rank or position. In Committee I pointed out that that is the position in the United States, and has been for many years. I see no reason why we should not move to a more egalitarian system in courts martial in this country.

My final point, on Amendment No. 57, is very different. It is on majority verdicts. I have already spoken about that today, and I am not going to repeat what I said. It is the most distinctive part of courts martial that the decision is by a simple majority. I know the verdict is decided by simple majority in Scotland, but there are 15 jurors there. There are simple majorities in some of the continental systems,

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but we have always thought our system of trial by 12 jurors to be superior to systems where only a few people sit.

Magistrates’ courts in this country deal with 95 per cent of criminal cases, but they have very limited powers and deal with minor offences. If courts martial confined themselves to disciplinary matters, which take up most of the first part of the Bill, and did not get involved in civil offences, I would have a different attitude. However, where murder, manslaughter, rape and so on can be charged, and where prosecutions can proceed before courts martial, it is only right that majorities, as set out in Amendment No. 57, should be required before guilty findings are made. I have said as much as I need to without repeating what I said in Committee.

Lord Astor of Hever: My Lords, I will speak to Amendment No. 58. We have tabled the amendment again as it concerns an issue that men in the Armed Forces feel strongly about, not least noble and gallant Lords in this House, as well as the Chief of the General Staff and the First Sea Lord, as they made plain in their evidence to the Select Committee in another place. It is very much our view that members of a court martial panel should be drawn from the defendant’s own service. Despite what the noble Lord, Lord Thomas of Gresford, said, that view is shared by many of the service men and women in all the services to whom we have spoken.

I am very grateful to the Minister for his helpful response to the amendment, both in Committee and outside the House, and I have taken his comments on board. I accept that in his position he has to allow for the rare situations where there is a case for mixed panels at court martial. I would very much like to see a presumption for a single service panel, and I would be grateful if the Minister could give an assurance that there will be such a presumption. I also support Amendment No. 59, proposed by my noble friend Lord Attlee.

Earl Attlee: My Lords, I am grateful for the Minister’s amendments in this group, which are welcome. I do not support the amendments proposed by the noble Lord, Lord Thomas of Gresford. If he is right in his general approach, perhaps we should dispense with courts martial entirely and remand all the cases to Crown Courts in the United Kingdom—just bin courts martial altogether. I do not think that that is the view of the House. I do not know whether the noble Lord has noticed, but not all soldiers are particularly bright, and if you had a small panel, they would struggle with a complex fraud case, as does a jury now.

Lord Thomas of Gresford: My Lords, does that go for the other services?

Earl Attlee: My Lords, generally speaking, the other services, on average, have more intelligent servicemen. That is a fact of life. Royal Air Force equipment is rather more delicate than a Challenger tank, and the Royal Navy’s equipment is really complicated.

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Also, the noble Lord’s position assumes that the officers on a court martial feel it their duty to convict. I have not sat on a contested court martial, but I know that the ethos among officers is definitely not to want to convict, because then you are going to have to sentence. Officers in a court martial want to be absolutely sure, if they are to convict, that the person is guilty beyond all reasonable doubt. I strongly support my noble friend Lord Astor of Hever in his Amendment No. 58. I would be extremely unhappy if I found myself being court martialled by a panel other than one made up of Army officers who understood the context of the situation in which I had found myself.

I have an amendment in this group, and I declare an interest because I have a cousin in legal practice in Scotland who undertakes a considerable number of service cases. My understanding is that the most northerly court martial centre will be in Catterick and there will be none in Scotland. However, there are a large number of service bases in Scotland, such as Kinloss, Lossiemouth, Leuchars, Arbroath, Rosyth, Helensburgh and Edinburgh. Surely, a tri-service court martial centre in Scotland would be viable. There are considerable costs in moving all the court players all the way to Catterick from Scotland.

There is a further problem with the summary appeal court, which sits at a court martial centre. As I said, the most northerly court martial centre is Catterick, and a serviceman might be deterred from appealing a summary jurisdiction, even though he knows that he has been unfairly dealt with—I am afraid to say that I have been told that even today there are one or two commanding officers of questionable parentage. The reason for this reluctance is the need to go all the way to Catterick—not just for himself, to appeal, but for all the other players. That does not compare well with the civilian situation, where you can appeal a magistrates’ court decision in the local Crown Court. I hope that the Minister can assure me that one of the benefits of the Bill will be that we can have a tri-service court martial centre in Scotland.

Lord Boyce: My Lords, I will make one or two comments about some amendments in the group. First, the noble Lord, Lord Thomas, contends that there is a need to have privates or other ranks on the court martial panel. I am unable to agree with that. The noble Lord, Lord Thomas, said that the court members should be experienced. Certainly he will find that the private, or even the corporal, does not have sufficient experience. Experience is vested in the warrant officer, or indeed in the officer, given that, certainly in the Royal Navy, a third of officers have come up through the ranks. It can be perfectly well found among officers and warrant officers sitting on the court. By the way, the services are not egalitarian; let us try to remember that.

On the amendment proposed by the noble Earl, Lord Attlee, about Scotland, I mentioned in Committee, and before, the importance of making sure that our court martial locations are distributed throughout the country. In addition to the points that

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the noble Earl made, I will add two more. First, if you are having a court martial and you are coming down from Scotland, you would lose a large chunk of your unit, who may be witnesses or friends. That can be disruptive to the unit’s activities. Secondly, the reason for having a court martial in a local area is pour encourager les autres; it allows people in the unit to see the person being court martialled in the area where he has been operating, appointed or drafted. I would like some reassurance from the Minister that we will not just see two or three court martial centres, as currently outlined.

Finally, I support the noble Lord, Lord Astor of Hever, in his plea that the default position should be that a single person being court martialled should have on the court martial largely those from his own service. I do not agree that you will see a trial involving, for example, a flying incident being properly judged by a court martial with no aviators on it, or, vice versa, a trial involving a grounding incident in the Navy being properly tried by those in other services. If the amendment is not successful, I hope that the Minister can reassure us that there will be some sort of provision to make sure that, by and large, the court martial trying a single service defendant will be populated by people from the same service.

7.30 pm

Lord Drayson: My Lords, I will now deal with Amendments Nos. 50, 51 and 58, which relate to how membership of the court martial is selected.

Although some of these matters are dealt with in the service discipline Acts, we believe they are more appropriate for rules. But those rules will be subject to the affirmative resolution procedure. I can confirm that we intend that the court martial will comprise a majority of officers with provision in rules for there to be one or two warrant officers, depending on the size of the court.

Amendments Nos. 51 and 58 take completely opposite viewpoints on whether there should be mixed-service panels. We strongly believe—this is the view of all three services—that a court martial should generally be made up from individuals of the defendant’s own service, and that should be the presumption. There will be exceptions to that—for example, when there are co-defendants from different services. Rules will provide the criteria upon which the court administration officer should select a mixed panel.

It is important for the service context to be given due weight in relation to any offence, whether or not it occurs during operations. Also, most personnel usually serve in their own single service environments and would expect to face a tribunal comprised of members of their own service. We believe that members of the Armed Forces broadly have confidence in the court martial system, and changes that dilute the service character of the court martial can undermine the confidence of service personnel in it. Subject to that, selection should be random. Obviously, none of the members can come from the same chain of command as the defendant, nor are they likely to have any involvement in the case, and

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that is stated in the Bill. It would not make sense to select from that group where no person is or should be eligible. The Bill provides for a joint court administration officer, who will ensure consistency in the selection procedures.

Amendment No. 55 would, in effect, prevent the appointment of civilian lay members at the court martial of a civilian. That is clearly inappropriate. We shall consider the composition of the court martial on the trial of a civilian and can deal with that in rules. The recent judgment in the Martin case is relevant here. We will certainly want to consider whether a majority or even the whole lay membership of the court should be civilian in those rare cases where a civilian is to be tried for an offence in the service system. Those rules are already subject to affirmative resolution procedure, which will ensure that your Lordships will have an opportunity to scrutinise our proposals in due course. I would therefore urge the noble Lord, Lord Thomas of Gresford, not to press his amendment.

Amendment No. 57 makes various proposals in relation to verdicts. I can agree on one: that the judge advocate should have no vote on finding; but that is already provided for in Clause 160(2). I have recently written to the noble Lord on the remaining issues, so I will briefly summarise our position. The imposition of a system of unanimous verdicts has an attraction to those familiar with the English jury system. However, a court martial is not the same as a jury trial. The vast majority of cases that the court martial will hear are equivalent to those that are dealt with in the magistrates’ courts in England and Wales, where a simple majority suffices—namely, a vote of two to one. This will be mirrored in the court martial for the majority of its cases.

There is nothing inherently unfair in a system where simple majority verdicts are allowed. As well as in our own magistrates’ courts, they are used in jury trials in Scotland, in the Court of Appeal and in many other jurisdictions across the world, including in the House of Lords and the European Court of Human Rights. Simple majority systems are different, but not inferior.

We accept that the members of the court martial should seek unanimity on the verdict if possible. Judge advocates already give a direction to the lay members to seek to do that. By attempting to impose the allowed split of a majority verdict, the amendment would introduce the risk of a hung court and a retrial. It would mean that an accused who, in the court martial system may be acquitted on a three to two decision, for example, would instead have to be retried. That would be most unattractive to the Armed Forces.

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