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The noble Lord said: My Lords, Amendment No. 5 follows on from some of my remarks on Amendment No. 4, which I do not propose to repeat. The wording of the amendment echoes the decision of the European Court that was delivered last week. Perhaps I may remind your Lordships that Sir
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In the particular case, it was not finally decided whether there were compelling reasons, but the issue concerned whether a number of witnesses would have to be flown from Germany to this country. The fact that, when the trial was held in Germany, witnesses not simply from the UK but from all over the world were flown in to give evidence is perhaps to be noted.
As your Lordships know, Article 6.1 deals with the need for a fair trial. I submit to your Lordships that there should be developed, along with the service civilian court, a civilian jurisdiction for juveniles in which the case is tried not by officers, but by a judge advocate, along with suitably qualified and experienced people who have had the same training for dealing with juveniles as magistrates have had. That is how juveniles should be dealt with.
We were told on Report that there are 20,000 juveniles with service people overseas. So an awful lot of youngsters are involved. If they commit more serious offences such as murder and manslaughterthe very rare cases where one sees a juvenile person tried in the Crown courtthey should be tried in a Crown court in this country in the ordinary way. We currently try in this country offences involving alleged homicide which have taken place overseas. Your Lordships will remember particularly last Septembers case at Colchester, where paratroopers were tried for murder. There is no reason why juveniles who are charged with murder cannot be tried in this country.
Unfortunately, this Bill misses the opportunity and misses the trick. From Second Reading through all its stages, we have advanced the argument that juveniles should be dealt with as they are in this country. The Government have not listened on this occasion. Again, I make no personal criticism of the Minister, but it is a fact that a youngster in the same situation as the defendant Martin would be liable to be charged and tried abroad by court martial if the circumstances were appropriate.
This is not acceptable. We are living in the 21st century. There are people, particularly those who sit on the Cross-Benches, who devote their lives to the problems of youngsters and who have made significant contributions to looking after their welfare. That is the issue of principle that arises here. I have not, though I was very much tempted, extended my amendment to cover all civilians, which would be in line with the judgment of the European Court that I quoted to your Lordships. I have confined it to the specific instance of juveniles. I shall seek your Lordships support in due course after hearing what the Minister says. I beg to move.
Earl Attlee: My Lords, I remind the House of my interest as a serving TA officer. I have a lot of sympathy for this amendment, because I would not want to find myself on a court martial dealing with such a case. However, the amendment makes no provision for an alternative. If your Lordships accept it, how and where would serious charges other than manslaughter and murder, which can be dealt with in the Crown court, be prosecuted? Unless the noble Lord can provide an answer, he should exercise some caution before testing the opinion of your Lordships' House.
Lord Drayson: My Lords, Amendment No. 5 would prevent civilians who are under 18 years of age from being tried before the court martial. On 24 October, the European Court of Human Rights gave its judgment in the case of Martin. We need to be clear about what it decided.
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, which were remedied by the Armed Forces Act 1996. It is no surprise that the European Court decided in Martin that the court martial was not compliant. The European Court did not decide that courts martial should not try civilians, or that they should not try civilian juveniles; it stated the important principle that a military jurisdiction should be exercised over civilians only if there are compelling reasons to do so. In the case of 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 court martial trial. It did not need to, because it decided the case on the basis that the court martial at that time was not
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In the Martincase, the reasons for court martial trial were mainly to do with the availability of witnesses, most of whom were German. However, there were case-specific factors that might have suggested that it would have been better to try him in a UK court: 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 commented that it had considerable doubts about whether it would have found the reasons for court martial trial compelling in this particular case.
Looking more generally, however, I believe that we should provide for all civilians subject to service discipline to be subject to a system of investigation and trial that will apply the criminal law of England and Wales, that conducts its proceedings in English and that is ECHR compliant. This is especially important for contractors and others who increasingly accompany our forces on operations abroad. It is in the vital interests of the services themselves, of the civilians who live and work with them and of the civilian population among whom they operate that there is a fair and robust system of justice outside the UK 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. But the largest constituency affected is service families overseas, and we realise that some 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. If an accused is convicted, his punishment may not be one that exists in the UK and any period of detention would not be served in the UK.
Perhaps, however, I can allay some of the fears that noble Lords may have about juveniles routinely being tried by the court martial. This simply will not be the case. In the vast majority of cases, civilians will be tried in the service civilian court, which is of course presided over by a civilian judge advocate. In relation to adults, this court has the same powers as a magistrates court in England and Wales, which means that for an adult accused it may try any offence that in England would not have to be tried in the Crown court.
However, in relation to juveniles, the offences that the service civilian court may try are more numerous. When dealing with a juvenile, the service civilian court has the same powers as a youth court in
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Noble Lords will see, therefore, that only in exceptional circumstances would a juvenile civilian appear before the court martial. On those occasions when they do, the court will of course be presided over by a civilian judge advocate who will have had the same training as Crown court judges in relation to juveniles. Furthermore, in the Bill we have the ability to provide that, when civilians appear before the court martial, the lay members are themselves civiliansindeed, it may be that the entire panel will be civilian. These provisions will be contained in court martial rules, which will be subject to the affirmative resolution procedure, so noble Lords will have adequate opportunity to scrutinise them in due course.
I hope that the provisions in relation to civilians and juveniles in particular will lead noble Lords to see the amendment as unnecessary and undesirable. In view of the reasons that I have given, I hope that the noble Lord will agree to withdraw his amendment.
Lord Thomas of Gresford: My Lords, the noble Earl, Lord Attlee, has pointed out the gap or hole in the Bill. In response, the Minister pointed to the fact that a juvenile will be dealt with by a single judge advocate who has the powers of a judge in a youth court. Does that judge advocate have the training? It cannot be imagined that a senior judge advocate will be sitting over juveniles. He is apparently not to be assisted by any lay people with experience in dealing with children, as happens in the juvenile courts in England and Wales and the juvenile panels in Scotland. So there is a hole.
The noble Earl, Lord Attlee, is right to say that we have not filled the hole. I do not think that I can. I cannot import into this Bill a whole provision for setting up a satisfactory youth court that will be the equivalent of the youth courts and youth panels in this country and have that sort of experience to accompany it. Some 20,000 of our juvenile citizens, if they are in trouble, will come before a judge advocatevery probably a deputy judge advocate who comes from the Bar for the purpose, without the proper training or the knowledge of all the possibilities for rehabilitation and so on that apply in our youth courts and youth panels.
So there is a hole. It is impossible for me to fill it by an amendment to the Bill, but it is important that your Lordships should sound a note of principle to indicate that there is more work to be done and that we have not reached the final position on military justice by passing this Bill. The opportunity has been missed, and that is sad. I should have wished this to be a complete Bill that would have covered the whole situation for the next 10, 20 or 30 years. But that is not the case. There is a hole in the Bill, and I hope that noble Lords will mark that hole by supporting the amendment. I should like to seek the opinion of the House.
The noble Lord said: My Lords, I am grateful to the Minister for his agreement on Report that we should defer debating this amendment until Third Reading. Amendment No. 6 would constrain the manner in which those members of the Armed Forces under the age of 18 may be used and treated. There would be a prohibition on service in combat areas, and they would be prohibited from guarding using live weapons. The amendment also requires special handling of those members of the Armed Forces who are under 17.
I described in Committee how the amendment would implement the clear recommendations stemming from Nicholas Blake QCs investigation into the tragedy of Deepcut barracks. I also explained our disappointment over the Governments response to the Blake report. I remind your Lordships what the Blake report said. Recommendation 3 was:
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