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Lord Hope of Craighead: My Lords, by way of information, perhaps I should mention that there is another Scottish case which raises the same issue. As has been said correctly, the case of Starrs v. Procurator Fiscal, Linlithgow is not to proceed any further. Therefore, the Judicial Committee of the Privy Council will not have an opportunity to examine the decision in that case.

However, there is another case (the name of which escapes me) which involves the question of whether a temporary judge--that is, a judge at a higher level than

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temporary sheriff--is properly appointed. I understand that that case has now been reported under Scottish procedure by the temporary judge in question to the Inner House of the Court of Session--this being a civil case--and that the question arises as to whether the Inner House will then refer the matter to the Judicial Committee for decision. I have no doubt that that case is known also to Her Majesty's Government. However, it is right that we bear in mind that those issues arise in a number of ways and affect different judicial officers at different levels. Therefore, for what it is worth, I support the point already made that this matter requires careful attention before a final decision is taken.

Lord Campbell of Alloway: My Lords, I mention very briefly that my noble and learned friend Lord Mackay of Drumadoon is in court today. My noble friend Lord Burnham asked me if I would stand in to say virtually nothing, other than that I wholly support the amendment. In view of what has just been said by the noble and learned Lord, Lord Hope, there is no question that this matter will need to receive attention.

5.15 p.m.

Baroness Symons of Vernham Dean: My Lords, I wrote to the noble and learned Lord, Lord Mackay of Drumadoon, after our discussion in Committee. In all fairness to the noble and learned Lord, who, unfortunately, is not with us this afternoon because of his commitments elsewhere, I should say that he will not have received the correspondence because it was, I believe, placed in his pigeon-hole this morning. However, I make the point to your Lordships that I have tried to pass some information to him.

Perhaps it will help your Lordships if I put a little more flesh on the bones about the present facts of the matter. In the Army and Air Force, trial judge advocates are mainly the holders of permanent, pensionable judicial appointments, although other part-time judge advocates are also used for around one-sixth of courts martial.

In the Royal Navy, judge advocates are fully qualified barristers who are, first and foremost, commissioned officers. Once they have sufficient legal experience, they may be rotated into a judge advocate post in the same way as other personnel in the services are posted into different jobs at different points in their careers. Being a naval judge advocate is one of a number of roles, both legal and non-legal, which a suitably qualified officer will perform during his time in the Royal Navy.

At present, consideration is being given to the detailed arrangements for the appointment of judicial officers provided for in the Bill. As I believe the noble and learned Lord, Lord Mackay of Drumadoon, is aware, my noble and learned friend the Lord Chancellor is considering the implication of the Starrs case and has undertaken to make a Statement to the House when his consideration is complete. Obviously, we shall be guided by his conclusions, but I believe that it would be inappropriate and certainly most unhelpful for me to react to the Starrs judgment outside my

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noble and learned friend's wider review of the position of the judiciary in the light of that judgment. I assure the noble and learned Lord, Lord Hope of Craighead, and the noble Lord, Lord Molyneaux, that the points they raised will be drawn to the attention of my noble and learned friend.

I hope that in the light of the assurances that I have given the House about the intentions of my noble and learned friend in making a Statement on this important matter, the noble Lord, Lord Burnham, and, in absentia, his noble and learned friend Lord Mackay of Drumadoon will understand my position, and that the noble Lord, Lord Burnham, will be kind enough to withdraw his amendment.

Lord Burnham: My Lords, certainly I fully understand the noble Baroness's position and I withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 9 to 13 not moved.]

[Amendment No. 14 not moved.]

Clause 11 [Right to elect court-martial trial]:

Earl Attlee moved Amendment No. 15:

    Page 32, line 19, at end insert--

("(3A) An accused who elects for court-martial in accordance with the provisions of subsection (1) above may apply to the commanding officer or appropriate superior authority for leave to withdraw that election.
(3B) An application by the accused for leave to withdraw election for court-martial shall include a written statement as to those of superior rank with whom he has discussed the application.
(3C) The record of the grant of leave to withdraw election for court-martial shall include--
(a) the application together with the statement from the accused required by subsection (3B) above;
(b) a written statement signed by the person or persons who gave advice to the accused on behalf of the commanding officer or appropriate superior authority and such record.
(3D) The record of the grant of leave to withdraw election for court-martial shall be delivered forthwith to the Judge Advocate General.").

The noble Earl said: My Lords, in moving Amendment No. 15, it may be convenient if I speak also to Amendment No. 16. In scrutinising the Bill, we are attempting to balance the rights of the individual with the needs of military discipline. Much has been said by the Minister to advocate those new rights. We discussed the timing of the accused's election for court martial. The Minister put forward an attractive argument that election for court martial after a finding of guilt by the CO could be more by way of an appeal than a court of first instance. It may have been possible merely to alter the rules of procedure to eliminate that possibility. We have not returned to that point at this stage of the Bill, but another place will no doubt re-examine the issue.

Changing when the accused can elect for court martial is of little value if, in practice, the accused is unable to exercise his choice. Let us suppose that a

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small piece of army equipment has been lost. I apologise for using an army illustration but it is easier for me, although the argument is the same for each service. The soldier claims that he handed the equipment to an NCO but the NCO denies that. Unfortunately, the unit's receipts and issues register is not in particularly good order. Due to the low value and sensitivity of the equipment, the penalty at summary dealing is likely to be very modest. However, the soldier knows that he did not lose the equipment and his legal advice is that the charges would not be sustainable at court martial.

In those circumstances, it would be quite reasonable to elect for court martial because at summary dealing, he may well be found guilty. In a later amendment, I shall address the applicability of PACE to summary dealing and courts martial.

Unfortunately, in the real world, he would not be allowed to exercise his right to elect for court martial for such a trivial matter. Such a matter would initially be dealt with by the officer commanding--the OC--on behalf of the CO. If the CO himself heard that a soldier wanted to elect for court martial and, by implication, did not trust the OC, the CO would not be impressed with the OC. If it happened to the OC a few times, he would be in difficulties with his commanding officer. If the commanding officer's superiors heard that a soldier was electing for court martial, they too would draw unfavourable conclusions.

So what happens in practice, in the real world, is that heavy pressure is applied to the soldier to withdraw his election. The situation could be one of a warrant officer, the company sergeant major or the regimental sergeant major telling or even forcing a private soldier to withdraw his election for court martial in order to avoid embarrassment for his superiors and, indeed, the whole unit. That is hardly equality of bargaining power.

The Minister will have to decide whether it is worth while changing when the accused can elect for court martial if, in practice, he cannot freely exercise that right. Is the Minister content with that situation and, if not, what will she do to address the problem?

My amendment makes it clear that the accused can withdraw his election but provides that he will have to make a statement as to who of superior rank has counselled him to withdraw his election. It does not affect his ability to consult those of the same or lower rank. Those who counsel the soldier on behalf of the CO would also have to make a statement. The records of those statements would then be sent on to the judge advocate-general.

The rules of procedure, which can be found in the manual of military law, could provide that the accused must be warned before he decides whether or not to elect for court martial that he will have to make a statement if he subsequently withdraws his election.

I considered other ways of achieving the same ends and, in particular, limiting who could counsel the accused. I also looked at how I could ensure that if something were going horribly wrong in the unit, the provisions of my amendment would precipitate an

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external inquiry of some kind. Perhaps a provision that no one of superior rank within the unit could counsel the accused would ensure that the accused could talk to someone outside the unit if he thought that he was being unfairly accused.

I accept that my current amendment may not be the best way of achieving the desired end but it is one way of doing so. I repeat my question. Is the Minister content with a situation in which, in practice, a serviceman cannot freely elect for court martial and, if not, what will she do to address the problems? I beg to move.

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