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Division No. 4


Addington, L.
Anelay of St Johns, B.
Astor of Hever, L.
Attlee, E.
Blaker, L.
Bradshaw, L.
Brougham and Vaux, L.
Burnham, L.
Buscombe, B.
Byford, B.
Carlisle of Bucklow, L.
Carnegy of Lour, B.
Colwyn, L.
Cope of Berkeley, L. [Teller]
Craig of Radley, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Dundee, E.
Dykes, L.
Elliott of Morpeth, L.
Fearn, L.
Glenarthur, L.
Hamwee, B.
Higgins, L.
Hodgson of Astley Abbotts, L.
Hooper, B.
Hooson, L.
Howard of Rising, L.
Kimball, L.
King of Bridgwater, L.
Kingsland, L.
Knight of Collingtree, B.
Laidlaw, L.
Linklater of Butterstone, B.
Livsey of Talgarth, L.
Lucas, L.
Luke, L.
Lyell, L.
Mackie of Benshie, L.
McNally, L.
Maginnis of Drumglass, L.
Mar and Kellie, E.
Marlesford, L.
Masham of Ilton, B.
Mayhew of Twysden, L.
Michie of Gallanach, B.
Miller of Chilthorne Domer, B.
Monro of Langholm, L.
Montrose, D.
Morris of Bolton, B.
Neuberger, B.
Newton of Braintree, L.
Noakes, B.
Norton of Louth, L.
Park of Monmouth, B.
Rennard, L.
Renton, L.
Roberts of Llandudno, L.
Rogan, L.
Roper, L. [Teller]
Rotherwick, L.
Russell-Johnston, L.
Sandberg, L.
Seccombe, B.
Sharp of Guildford, B.
Sharples, B.
Shutt of Greetland, L.
Skelmersdale, L.
Smith of Clifton, L.
Thomas of Gresford, L.
Trumpington, B.
Ullswater, V.
Walmsley, B.
Watson of Richmond, L.
Williams of Crosby, B.


Acton, L.
Alli, L.
Amos, B. (Lord President of the Council)
Archer of Sandwell, L.
Ashton of Upholland, B.
Bach, L.
Bassam of Brighton, L.
Billingham, B.
Borrie, L.
Brennan, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Carter, L.
Carter of Coles, L.
Clark of Windermere, L.
Corbett of Castle Vale, L.
Crawley, B.
David, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dixon, L.
Donaldson of Lymington, L.
Drayson, L.
D'Souza, B.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Fyfe of Fairfield, L.
Gale, B.
Gibson of Market Rasen, B.
Goudie, B.
Gould of Potternewton, B.
Griffiths of Burry Port, L.
Grocott, L. [Teller]
Harris of Haringey, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howe of Idlicote, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Jones, L.
Judd, L.
Kirkhill, L.
Leitch, L.
Lockwood, B.
McCarthy, L.
McDonagh, B.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
McKenzie of Luton, L.
Massey of Darwen, B.
Maxton, L.
Merlyn-Rees, L.
Mitchell, L.
Morgan of Drefelin, B.
Parekh, L.
Pitkeathley, B.
Plant of Highfield, L.
Radice, L.
Rendell of Babergh, B.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Scotland of Asthal, B.
Sewel, L.
Simon, V.
Smith of Leigh, L.
Snape, L.
Stone of Blackheath, L.
Taylor of Blackburn, L.
Temple-Morris, L.
Thornton, B.
Tomlinson, L.
Triesman, L.
Truscott, L.
Tunnicliffe, L.
Turnberg, L.
Turner of Camden, B.
Wall of New Barnet, B.
Warner, L.
Whitaker, B.
Wilkins, B.
Williamson of Horton, L.
Young of Norwood Green, L.

Resolved in the negative, and amendment disagreed to accordingly.

2 Nov 2004 : Column 236

On Question, Motion agreed to.


13 Before Clause 17, insert the following new clause—
(1) The Mental Health (Northern Ireland) Order 1986 (S.I. 1986/595 (N.I.4) is amended as follows.
(2) In Article 49 (finding of unfitness to be tried), in paragraph (4) (question of fitness to be determined by a jury), for the words from "by a jury" to the end substitute "by the court without a jury".
(3) In paragraph (4A) of that Article, for "A jury" substitute "The court".
(4) In paragraph (1) of Article 49A (finding that the accused did the act or omission charged against him), for "jury" substitute "court".
(5) For paragraph (5) of that Article substitute—
(5) Where the question of fitness to be tried was determined after arraignment of the accused, the determination under paragraph(2) is to be made by the jury by whom he was being tried.""

Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 13. I spoke to this amendment with Amendment No. 12.
2 Nov 2004 : Column 237

Moved, That the House do agree with the Commons in their Amendment No. 13.—(Baroness Scotland of Asthal.)

[Amendment No. 13A not moved.]

[Amendment No. 13B, as an amendment to Commons Amendment No. 13, not moved.]

On Question, Motion agreed to.


14 Clause 17, page 12, line 17, at end insert—
"(4) Section 5A of the Criminal Procedure (Insanity) Act 1964 ("the 1964 Act") applies in relation to this section as it applies in relation to section 5 of that Act.
(5) Where the Court of Appeal make an interim hospital order by virtue of this section—
(a) the power of renewing or terminating it and of dealing with the appellant on its termination shall be exercisable by the court below and not by the Court of Appeal; and
(b) the court below shall be treated for the purposes of section 38(7) of the Mental Health Act 1983 (absconding offenders) as the court that made the order.
(6) Where the Court of Appeal make a supervision order by virtue of this section, any power of revoking or amending it shall be exercisable as if the order had been made by the court below."
15 Page 12, line 20, at end insert—
""interim hospital order" has the meaning given in section 38 of that Act;"
16 Page 12, line 24, leave out from first "the" to end of line 27 and insert "1964 Act."
17 After Clause 18, insert the following new clause—
Schedule (Unfitness to stand trial and insanity: courts-martial etc) (unfitness to stand trial and insanity: courts-martial etc) has effect."

Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 14 to 17. These amendments are intended to reflect in court martial procedure the changes that were made by current Clauses 17 and 18. It also reflects the change made by Amendments Nos. 12 and 13 that we considered a moment ago, that a decision whether a defendant is fit to plead will be made by the judge advocate alone rather than by the lay members of the court martial, and it makes consequential amendments.

The service legislation in this area is out of date. An attempt to provide an updated framework was made in the Armed Forces Act 1996, but the regulatory framework that it provided for has proved too complex and it has never been commenced. Therefore, it is now a matter of some urgency to put appropriate provisions in place.

The effect of the amendments is to allow courts martial to slot into the Mental Health Act 1983 and to make hospital orders on the same terms as civilian orders. That has meant abandoning the AFA 1996 provisions, which had envisaged a system allowing courts martial to commit people to hospital in Scotland or Northern Ireland as well as England and Wales. It is right that I should emphasise further that under the new provisions a person who is admitted into hospital in England and Wales can later be
2 Nov 2004 : Column 238
administratively transferred to a hospital elsewhere in the United Kingdom, if that is appropriate in his or her case.

The amendments also address a problem with the service legislation that has become apparent only from recent House of Lords and ECHR case law. The AFA 1996 Act envisages that orders admitting people to hospital or non-residential supervision would be made with input from both the judge advocate—that is a civilian judge—and the lay members of the court martial, who are non-legally qualified military officers and who serve a function like a jury. This is consistent with the normal courts martial sentencing procedure which allows the lay members to have input into sentencing because of their expert knowledge about the effect of criminal offending on military discipline.

However, the case law makes it clear that these orders are not to be considered as criminal in nature, but as mental health matters. While the court members will still decide on the facts of the case, it is therefore inappropriate to have lay input into the orders themselves. The decision should be made by the judge advocate alone on the basis of advice from mental health professionals.

In addition, Amendments Nos. 14 to 16 make some technical improvements to Clause 17. Those changes are not related to the court martial system, but simply improve what we have already done for the civilian system.

Moved, That the House do agree with the Commons in their Amendments Nos. 14 to 17.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.

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