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3.15 pm

Lord Thomas of Gresford moved Amendment No. 4:

(a) it is alleged to have been committed in the United Kingdom, and (b) the corresponding offence under the law of England and Wales is punishable by life imprisonment.”

The noble Lord said: My Lords, those noble Lords who have assisted us in our consideration of the disciplinary offences in the Bill are to be commended on having achieved significant changes in the Bill in respect of those disciplinary offences. In addition to disciplinary offences, Clause 42, to which my amendment refers, gives to the court martial jurisdiction over a person subject to service law or a civilian subject to service discipline in respect of any offence punishable by the law of England and Wales. It is familiar from the Army Act that the court martial can try a person for committing what is called in Army terms a civil offence—an offence as serious as murder, manslaughter, rape or any offence punishable by the criminal law.

The purpose of my amendments is to maintain the present position. The present position traditionally has been that if a serious offence of treason, murder, manslaughter or rape is committed in the United Kingdom, as opposed to abroad, by a soldier or serviceman or a civilian subject to service discipline, those offences cannot be tried by way of court martial but can be tried only in the Crown Court. That is the position today. For some reason, which has not been

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adequately explained, although I have pressed the matter both in Committee and on Report, the Government think that it is right to extend the jurisdiction of the court martial court to encompass any criminal offence. Whereas today, a serviceman who commits murder in the United Kingdom can be tried only by a Crown Court, with all the procedural safeguards that that involves, in future, someone—it is not clear who, but presumably the new director of service prosecutions—will be able to say, “Well, although this act has been committed in a part of London—you are alleged to have murdered somebody in London—nevertheless, you are a serviceman, you work for the services, or you are the child of a serviceman and are therefore subject to service law”. Someone can decide that the ordinary Crown Court is not the requisite place to be tried and may order, under the provisions introduced by the Bill for the first time in history—certainly since the Army Act 1955—that the person can be tried by court martial.

What is the reason for that? I suspect that it is a way of upping the profile of the new court martial court. What about the impact on the defendant, who has all sorts of procedural safeguards in the Crown Court that do not exist in the military court? For example, in the military court he may be tried and convicted of murder by a majority of 3:2 as opposed to the unanimous verdict of a jury, or at the very most a verdict with a majority of 10:2 in the Crown Court.

There are other safeguards, but I shall not weary your Lordships by listing them all. The Government’s response on Report was that it was anomalous that there is an exception in relation to murder, manslaughter, rape and treason because there are other offences punishable by life imprisonment, such as serious sexual offences, which are not exempted. So why should you have one and why have the other? The answer is not to give the court martial jurisdiction over murder, et cetera, committed in the United Kingdom. It is to say that any serious offence that carries life imprisonment should not be tried by a court martial in this country. I have conceded that if murders or other serious offences are committed abroad, it may be appropriate, but only as a second best, for the court martial to deal with those cases.

I argued in the case of Martin—a boy of 17 whose father was a serving soldier—which went before the Judicial Committee of your Lordships House, that it is wrong, even when an offence is committed abroad, for a civilian to be tried by way of court martial in front of a row of officers. We did not succeed in that case in the House of Lords in 1997 because their Lordships held that you could not call it an abuse of process when Parliament had many years ago decided that it could be done. But the Human Rights Act was not in force at that time. The matter went to the European Court, and it has taken 10 years—until last week—for that court to pronounce. It has decided unanimously that that should not have happened, and that only in the most exceptional circumstances should a civilian be tried by way of court martial for serious offences, even if they are committed abroad.



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The European Court has expressed its strong view on this in relation to civilians, but the amendment relates to courts martial having jurisdiction over offences committed in the United Kingdom. I should be interested to know how many judge advocates have tried a murder case. I would not have thought there had been more than three or four such cases in the past 10 years. I can think of only one successful prosecution of a murder case—possibly two if I include Northern Ireland. There is little experience—perhaps that is the best way to put it—among judge advocates. As far as I know, they do not carry rape tickets or murder tickets, as Crown Court judges have to do before they can try such cases. If they do have such tickets, no doubt the Minister will inform us. There is a lack of experience in trying what are the most complicated cases. Murder cases introduce concepts of provocation, self-defence, manslaughter and so on, as alternatives, which are not easy to resolve.

The Minister and the Government have rightly listened to the contributions of the military people who have commented on the Bill, but they have not listened to the contributions of people experienced in that legal system. In many ways, they have not adopted the recommendations of the Judge Advocate General, Judge Blackett. He was a serving naval officer who retired to become the Judge Advocate General and he was appointed circuit judge. He made recommendations which would have improved the procedural safeguards at courts martial. I have advanced many of those in amendments which have been rejected by the Government. I have already declared to your Lordships my own interest in this area of the criminal law, but I venture to say that I have appeared in more military murder cases than anyone else I can think of at the moment. Why do the Government not listen to lawyers? Presumably lawyers do not matter. Often that is the view expressed, if not openly, certainly implicitly in your Lordships' House.

At the end of the day, we are concerned with fair trials. The European Court has said that one does not get a fair trial in front of a row of military officers if one is a civilian. Yet the Government are missing an opportunity with this Bill to reform radically the military justice system to bring it into the 21st century. They have not gone far enough. That is their problem. The forces of tradition and the forces of the services have been too much. I hope I have indicated to your Lordships the importance that I attach to this amendment. I beg to move.

Baroness Carnegy of Lour: My Lords, I have listened carefully to what the noble Lord has said. I know that he is enormously experienced in these matters. If this offence occurred in Scotland, should paragraph (b) of the amendment not refer to the corresponding offence under the law of Scotland as well?

Lord Thomas of Gresford: My Lords, I think that is right. I accept the rebuke from the noble Baroness.



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Lord Lyell: My Lords, I am a near neighbour of my noble friend Lady Carnegy. There is a very well known military establishment in the county of Angus and several other military establishments. What is the situation? Could the noble Lord clarify it?

Lord Thomas of Gresford: My Lords, the military in Scotland will be subject to the Bill. It will be open to the Director of Service Prosecutions to determine that an offence of murder committed in Scotland by a serviceman or a civilian subject to service law can be tried by a court martial.

Lord Drayson: My Lords, in our earlier debates, the noble Lord, Lord Thomas of Gresford, sought to prevent this Bill extending the jurisdiction of the military criminal justice system in relation to most serious offences committed in the United Kingdom. He argued for retaining the current legislative position and proposed an amendment that followed almost exactly the wording of Section 70(4) of the Army Act. On Report, I argued that such an approach would retain a significant anomaly that even now produces undesirable effects in relation to a small number of the most serious criminal conduct offences.

I believe that the noble Lord, Lord Thomas of Gresford, accepted the argument that the current system was anomalous, but he now seeks to address the anomalous position not by removing it, but simply by expanding its undesirable effects. Amendment No. 4 is a retrograde step. As I made clear when we debated this on Report, it is anomalous that the services can deal with many very serious offences committed in the UK carrying sentences of up to life imprisonment but not others. The Bill proposes to remove that anomaly to create a comprehensive system of service law. Why is that so important?

First, we must keep at the front of our minds what our forces are required to do and where they are required to do it. We frequently, perhaps increasingly frequently, deploy them overseas. Sometimes we deploy them to places where there is a perfectly acceptable legal system; sometimes we deploy them to places where there is no legal system at all. Sometimes we send them on operations that require them to work in conditions of physical hardship and, often, great danger. However, we expect them to behave impeccably at all times and in every circumstance, not only when they are called upon to apply lethal force.

Secondly, the current exclusion in the service discipline Acts prevents the services dealing with cases even when they are best placed to do so. For example, where a death occurs in military training in the UK, are not the services best placed to investigate and judge the degree of negligence involved, the relevance of the training given and other elements of the service context? That must be the relevant consideration for which court deals with an offence, not, as the noble Lord, Lord Thomas, suggested, the fact that a serviceman sent to prison for life will serve that sentence with ordinary criminals who were tried by the Crown Court.



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Thirdly, the present exclusion can prevent the joint trial of matters which should be charged together. This point operates in two ways: first, where an incident may be dealt with by a combination of both criminal and disciplinary offences; and secondly, where a series of offences has been committed in the UK and overseas. If I may say so, the noble Lord fails to see that serious incidents may give rise to disciplinary and criminal offences. An example might be charging manslaughter along with a disciplinary charge such as disobedience of a lawful command, negligent performance of duty, dangerous flying or hazarding a ship. Only a service court can deal with them together. Should dealing with them together not be possible in relation to an incident which occurred in the service context in the UK? It is not difficult to think of other examples of offences based on those additional criminal offences that the noble Lord wishes to add—for example, possession of a firearm with intent to endanger life, or grievous bodily harm.

Finally, the noble Lord, Lord Thomas of Gresford, conceded that there was good reason for a military system to deal with offences that occurred overseas. But, given that our personnel move so frequently between states, it is quite easy to see circumstances where someone may have committed a series of serious offences in different countries, including the UK. These are not far-fetched possibilities; they reflect the practical issues that flow directly from the way our services operate.

3.30 pm

I recently wrote to the noble Lord, Lord Thomas, and provided details of two recent cases which illustrate the principle. The first concerned a soldier alleged to have committed offences of violence against service personnel in the United Kingdom and in Canada, who subsequently faced a charge of attempted murder in the UK which was dealt with in the UK civilian system. The second was a former soldier alleged to have raped the same female in the UK and Germany. Each demonstrated the current limitations of the civilian courts, and by contrast the flexibility of the service courts, to deal with such cases. The amendment would extend the circumstances in which such limitations would impact upon the administration of justice.

I have already told the House that we do not propose that, under the Bill, murder, rape or treason alleged to have been committed by a serviceman in the United Kingdom will normally be investigated and tried within the service system.

The noble Lord, Lord Thomas, in our last debate asked who would decide whether a case would be dealt with in the service or civilian jurisdiction. The answer to that is clear. Our aim is that in relation to all serious offences, as is the case now, a decision should be made in accordance with Home Office protocols on which jurisdiction is the more appropriate. The decision should be made under those protocols by the civilian authorities, whether the police or the Crown Prosecution Service, on the basis of the principles set out in the protocols. Broadly speaking, if the case has any significant

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civilian context—for example, a civilian victim—the civilian jurisdiction should prevail. This is a common-sense approach which the amendment would deny.

Perhaps the greatest practical difficulty which the current exclusion has caused is in relation not even to trial, but to investigations and the use of service police powers. The present legislation and the Bill provide for the investigation, arrest, custody, search or charge by the service police for offences within the service jurisdiction. The current anomaly therefore has the following effect: if a soldier is abroad but is suspected of murder, manslaughter or rape in the United Kingdom, it is at least doubtful whether the service police can undertake searches abroad for evidence of the offence, arrest the suspect or hold the suspect in custody even at the request of UK civilian police. That is unsatisfactory. That is why we propose to remove the provision and why we cannot accept this amendment, which would make the situation much worse and tie the hands of the service police in relation to a large number of other offences.

The noble Lord has cited a number of examples where the court martial will be different from the Crown Court, and concluded that as a result the court martial will be deficient. I cannot accept any such suggestion. I do not accept that a military system, which is the equivalent of the civilian system, must be the same as that civilian system in every respect. Our aim is to create a service system as good as the civilian system and appropriate for the services. It must be capable of operating in a service context and have due regard to it. That context can be important in all circumstances of military life, not just on operations. That is because, as I have explained, it is essential for members of the Armed Forces, whether at home or abroad, to have the highest standards of readiness and discipline at all times. It is also important for the service context to be given due weight in relation to any offence, whether or not it occurs on operations.

As I have said in earlier debates, the military justice system is well able to deal with the most serious of cases and from time to time sees the participation of High Court judges and senior civilian counsel. 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. I see no reason why an ECHR-compliant court such as the court martial should not be able to exercise these powers in the United Kingdom when it may do so abroad.

As I have set out, 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 interests of justice would not be best served by this amendment. For the reasons I have given, I ask the noble Lord to withdraw it.

Lord Thomas of Gresford: My Lords, the noble Lord said that I was suggesting that the court martial system was deficient. Your Lordships might not take it from me, but you might take it from the unanimous decision of the European Court of Human Rights, pronounced a fortnight ago. It said that it was impossible to get a fair trial except in the most

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exceptional circumstances relating to civilians anywhere in the world. I am concerned about the current situation in the United Kingdom.

Earl Attlee: My Lords, was not the deficiency identified in our court-martial system prior to changes that we have already made to it?

Lord Thomas of Gresford: My Lords, certainly there were two grounds upon which the European Court held. The first was in relation to the complaint that a 17 year-old civilian boy had been tried before a court martial—that that was highly undesirable and did not result in a fair trial. Secondly, since it preceded the case referred to, the Court held that it was also procedurally wrong. The advances that have been made in court martials, in trying to bring them up to date, have been made as a result of defence applications to the European Court—decisions of the European Court which the Government have been forced to follow.

The Minister says that our aim is to achieve a military system of justice equivalent to the civilian system. It could have been achieved in this Bill if the Government had listened to the advice of the Judge Advocate General in important respects and accepted some of the amendments.

The Minister says that investigations by the service police abroad would be at least doubtful. As your Lordships are well aware, service police do not have the highest track record in the investigation of crime. In numerous cases of which your Lordships are aware, the service police have fallen down and acquittals have followed.

The system was second best. It could have been made equivalent to the Crown Court system but that opportunity has been missed. In this matter, the extension of jurisdiction over offences committed in this country to the court martial and the removal of cases from the Crown Court clearly impact on an individual defendant’s rights—his right to be tried by his peers instead of appearing in front of a panel of officers.

The combination of disciplinary charges and serious offences put forward by the Minister presents no argument. He himself has said that there were disciplinary offences in one case charged in Canada, but the serious offence was dealt with by the civil court in this country. As for somebody raping a lady abroad and then raping the same lady in this country, we all know that even though he might not be tried for the rape abroad, all the evidence in relation to it would be admissible in a trial in this country on a basis of similar facts, a similar system or whatever—certainly under some of the legislation passed by this Government in the past three years.

The reasons for extending jurisdiction have simply not been made and I cannot accept the Minister’s explanations. However, I pay tribute to him for the way that he has conducted this Bill—he has done a tremendous job in keeping us informed as things go along. There is no personal criticism involved, but I

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do not accept his arguments and I seek to obtain the opinion of your Lordships’ House.

3.40 pm

On Question, Whether the said amendment (No. 4) shall be agreed to?

Their Lordships divided: Contents, 63; Not-Contents, 165.


Division No. 1


CONTENTS

Addington, L.
Alton of Liverpool, L.
Ampthill, L.
Avebury, L.
Beaumont of Whitley, L.
Blackwell, L.
Bonham-Carter of Yarnbury, B.
Bradshaw, L.
Brooke of Sutton Mandeville, L.
Browne of Belmont, L.
Burnett, L.
Carlile of Berriew, L.
Clement-Jones, L.
Denham, L.
Dholakia, L.
D'Souza, B.
Dykes, L.
Ezra, L.
Falkland, V.
Falkner of Margravine, B.
Garden, L. [Teller]
Goodhart, L.
Hamwee, B.
Harris of Richmond, B.
Holme of Cheltenham, L.
Hurd of Westwell, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Linklater of Butterstone, B.
Mackie of Benshie, L.
McNally, L.
Mar and Kellie, E.
Miller of Chilthorne Domer, B.
Molyneaux of Killead, L.
Murphy, B.
Neuberger, B.
Newby, L.
Northover, B.
Ramsbotham, L.
Razzall, L.
Redesdale, L.
Rees-Mogg, L.
Rennard, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Roper, L.
Saltoun of Abernethy, Ly.
Scott of Needham Market, B.
Sharp of Guildford, B.
Shutt of Greetland, L. [Teller]
Smith of Clifton, L.
Stoddart of Swindon, L.
Tanlaw, L.
Taverne, L.
Thomas of Gresford, L.
Thomas of Swynnerton, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tyler, L.
Walmsley, B.
Warnock, B.
Wedderburn of Charlton, L.
Young of Hornsey, B.

NOT CONTENTS

Acton, L.
Adonis, L.
Ahmed, L.
Allenby of Megiddo, V.
Alli, L.
Amos, B. [Lord President.]
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Ashley of Stoke, L.
Ashton of Upholland, B.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Billingham, B.
Borrie, L.
Boyce, L.
Boyd of Duncansby, L.
Bradley, L.
Bragg, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Carter, L.
Chandos, V.
Chorley, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Craig of Radley, L.
Crawley, B.
Croham, L.
David, B.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Deech, B.
Drayson, L.
Dubs, L.
Elder, L.
Evans of Parkside, L.
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