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Lord Burnham: Perhaps I may raise one small point in relation to this issue. What will happen if two or more persons are accused of similar offences and one agrees to go for summary trial and the other wishes to go to court martial? No doubt the noble Baroness will say that the same will apply if it happens at a later stage. But because it is at a later stage in the procedure, the chances of it happening are reduced.

Lord Lea of Crondall: It is helpful to have heard the noble and gallant Lord, Lord Bramall, clarify this afternoon that he does not feel that there would be a widespread preference for a courts martial as against having one's case dealt with by the commanding officer. I believe that one of the central concerns expressed in the Second Reading debate was that the Bill taken as a whole, and particularly this section, would undermine the authority of commanding officers. With my limited experience of those matters, I should have thought it extremely unlikely that many people would opt for a courts martial when they will continue to serve in a particular unit.

However, has the Ministry of Defence been able to obtain any feedback on this very point from different levels in the armed services? If so, has such feedback shown that, given this clause, a large number of people would opt for courts martial? I should have thought that that was unlikely and, in so far as there seems to be a conflict of evidence on this point at the moment, I suggest that in the course of the Bill's passage through Parliament, which will obviously take some weeks and months, it would be desirable that surveys be carried out at different levels in the Armed Forces as to what people believe would happen. I do not believe that there is a difference of opinion in the House that the authority of the commanding officer should not be undermined.

Baroness Thomas of Walliswood: It was useful to the Committee that, in putting forward his amendment, the noble Earl, Lord Attlee, quite clearly indicated, as, indeed, do the amendments, that his intention is to reverse the purpose of the Bill. Therefore, we are in no doubt as to what he is trying to do, even though he is doing it by a different method. I believe that the intervention of the noble Lord, Lord Lea, was also helpful. Inasmuch as I have been able to hear comments from members of the armed services on the matter, my impression is that they do not expect there to be many applications for courts martial, particularly on minor charges.

However, situations could arise in which a soldier might prefer to be tried away from the atmosphere of his or her own unit because it was the circumstances surrounding the person in that unit which are the main cause of his difficulties. Therefore, I can see that even those who are involved in minor cases might occasionally wish to seek a courts martial. I have also

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come across an officer, who, as a commanding officer, felt embarrassed that he was not able to offer a courts martial under existing law and felt obliged to act in a way which he felt was not satisfactory from the point of view of natural justice.

Baroness Symons of Vernham Dean: Clause 11 inserts a new section into both the Army and Air Force Acts 1955 to alter the process of electing trial by court martial.

The availability of a right to choose to be tried by court martial instead of being dealt with summarily is long established. The right to make that choice was extended by the Armed Forces Act 1996 so that it became available to all individuals facing summary proceedings in the Army and Royal Air Force. In the Royal Navy it was accepted that that change should not be made because of the need to be able to deal quickly with minor disciplinary problems at sea. Nevertheless, in the Royal Navy, there is a right to elect trial by court martial for the more serious offences capable of being dealt with summarily.

The right to elect trial by court martial was extended in the 1996 Act because of concerns that summary proceedings on their own might not be compatible with the European Convention on Human Rights. The point at issue here is the independence and impartiality of the commanding officer. It was considered that offering a wider right to trial by a court complying with the convention--a court martial--would meet such concerns.

As the Committee will know, the Bill proposes to establish a summary appeal court. Apart from what the Government see as the intrinsic fairness of providing a proper mechanism for appealing against any summary findings, that new procedure is necessary to put beyond doubt the question of compatibility with the convention.

However, we do not wish there to be any confusion between the new right of appeal and the existing right to elect trial by court martial. We believe that there could be such confusion if we leave the procedures for electing trial by court martial as they are. That would be part of the effect of the amendments which we are discussing.

That is because in the Army and Royal Air Force the accused is not given the right to elect for trial by court-martial until after the commanding officer has found the charge proved. As I said on Second Reading, that procedure may be considered to have some of the characteristics of an appeal. The other effect of the amendments is to formalise that. The election for trial by court-martial after the commanding officer has indicated his finding but prior to sentence will be an appeal if this amendment is accepted.

It might be said that the amendments illustrate perfectly the confusion between the present arrangements and an appeal. Indeed, I should tell the Committee that when I started to deal with this issue, I was extremely confused about this point. I hope that I am not now. But I believe that it is open to confusion.

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On the other hand, Clause 11 as drafted means that the commanding officer will give the accused the right to elect trial by court martial prior to the commencement of any summary dealings. That will bring the Army and the Royal Air Force into line in that respect with the procedure which already operates in the Royal Navy, where the accused has the right to elect trial by court martial at the beginning of the summary process. Therefore, there is no need to change that aspect of the system.

We believe that it is important that our proposal should be left as it is. It will enable the accused to elect to be dealt with by a compliant court from the outset. In the context of the convention, we believe it is necessary that the right to elect from the outset is established.

Another flaw in the amendments is that the right to appeal will be exercised at a point when the accused knows only part of his fate. He will be appealing against the finding alone. He will not know, when initiating the appeal, whether the commanding officer is considering a custodial sentence, a fine or a lesser punishment. That does not seem to us to be a very informed basis for launching an appeal. Nor do we agree that that proposal would sustain the authority of the commanding officer in a way that our Clause 11 would not.

My noble friend Lord Lea asked what evidence there is of how individuals might opt for the courts martial alternative. Only experience will show how the new procedures operate in practice. However, we can draw on our knowledge of how the procedures relating to the point at which an individual may elect trial by court martial already operate in the Royal Navy. We can also draw on what has happened since the right to elect trial by court martial was established universally in the Royal Navy and the Royal Air Force in 1997.

The fact is that the change simply has not produced an avalanche of courts martial. Although we cannot know for certain, such evidence as we have, which I suggest to your Lordships is reasonably convincing, would seem to indicate that a huge number of courts martial will not be forthcoming.

The noble Earl, Lord Attlee, asked if a court martial can knowingly apply a more severe sentence than they think the commanding officer might have applied. Yes, that is possible but there is no intention to do so deliberately. As I am sure the noble Earl is aware, both the commanding officer and the court martial have a range of identical sentences available to them. The court martial would not attempt to second-guess commanding officers. As I am sure the noble Earl would expect me to say, members would be expected to use their experience and judgment when reaching their verdicts.

Once they have been introduced, we will monitor closely the new proceedings. If it becomes clear that there is need for modification we shall consider, as indeed we always can, what options are available to us for remedial action.

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Perhaps I may stress to your Lordships that the proposals in the Bill have not been drawn up by one or two liberal lawyers sitting in a darkened room somewhere within the MoD trying to think of the best way to plug every possible gap. They have been drawn up with the active involvement of the services with a view to ensuring that they work. They have to work and be practical and flexible. They must not undermine discipline or impede the maintenance of operational effectiveness. Who can give us the best possible advice on that?--those who see active service, who come in and out of my office and other ministerial offices and who, I am sure, have given us as good advice on this issue as they do on so many others.

Earl Attlee: My Lords, I am extremely grateful for the Minister's response. The noble and gallant Lord, Lord Bramall, suggested that the services could live with it. He is probably right about that. The noble Lord, Lord Lea, talked about research on the number of court martial events. One of the difficulties we have on these Benches is that we did not have an awful lot of time to table parliamentary Questions to find out how many courts martial have taken place, how many people have been acquitted and how many people have elected for court martial.

The noble Baroness, Lady Thomas of Walliswood, agreed with me that undue pressure could be applied and I will definitely come back on that with a suitable amendment. I agree with her comment in relation to the 1996 Act, which was a very desirable Act.

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