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There are currently two entirely different military operations taking place in Afghanistan. One is a fighting war under US command as part of offensive operations with Operation Enduring Freedom. The second is the NATO operation providing support to the Afghan Government in their role of stabilisation and reconstruction. United Kingdom forces are currently involved in both operations, although I believe that only the Harrier force is currently undertaking tasks that are responsible to both commands on different missions.
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However, the Statement, relayed by the noble Lord, Lord Drayson, on 26 January 2006 to your Lordships' House, explains that there will be a transition process for the new commitment of UK forces to Afghanistan. He said:
We are therefore sending our troops initially to work under direct US coalition control, working to an offensive operation task, before they become a supporting NATO force for the Afghan Government. I think that the noble and learned Lord the Attorney-General will want to ensure that the rules of engagement are clear to every soldier, sailor or airman who might find himself having to defend his actions subsequently in this very complex command situation.
I believe that we have a military of which we can justifiably be very proud. Like every group, there will be those who break the law. We have a system to bring them to justice, and the fact that we do speaks well for the probity, integrity and reliability of our services. We must make sure that we in return give them the duty of care which is their due. There will also be times, perhaps more often than in normal peacetime circumstances, when military personnel will be falsely accused. It is important that we have a proven and reliable system, which can then clear those who face such false allegations. In sum, we are content from these Benches that the system is right, but we worry that it suffers from resource problems.
Lord Bramall: My Lords, I too am deeply grateful to the noble Lord, Lord Campbell of Alloway, for raising this important question, as, indeed, I am for all the times that he very helpfully takes up the cudgels on behalf of the Armed Forces of the Crown.
On this particular issue, there has been, as the noble Lord, Lord Campbell of Alloway, said, considerable concern in the Armed Forces that the military justice system in the combat zone in a war-like environment, be it peace enforcement, counter-insurgency or whatever, has not worked as well as it should have. The noble and learned Lord the Attorney-General's supervisory role over the military prosecuting authority is clearly relevant in the consideration of all this.
No responsible military man would ever dispute that if service men or women commit a crime they must be punished. The Attorney-General made that very point in your Lordships' House when he last spoke on the subject. But the law cannot be dispensed in a vacuum. The noble Lord, Lord Moonie, pointed out that the climate of conflict has changed considerably
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recently. The key question that must be asked and resolved is, in a combat zone, in the middle of a battle, what exactly constitutes a criminal offence? It is certainly not, by itself, the act of killing or wounding, which may be exactly what the fighting man is there to do. It has to depend on the circumstances prevailing at the time, including the tempo of operations; the perception of the threat; the rules of engagementwhich have importantly been referred to several times alreadyif applicable; and the good faith of those involved. The vital follow-up question is: who then decides whether, in the light of those circumstances, there is a prima facie case to answer and at what level is that decision made?
I am not referring to the rare, I hope, but most unfortunate cases of abuse or assault and battery about which we have recently been reminded. They are entirely different because they are behind the firing line and out of the battle.
I ask those questions because, in cases involving the military justice system that appear to have gone wrong because either prosecutions have tardily collapsed or there have been inordinate delays in bringing anyone to justiceboth of which, however rare, are potential miscarriages of justiceit appears that crucial decisions have been taken far removed from the scene of the action and largely out of touch with the operational circumstances prevailing. In all the cases that I have in mind, some of which have already been mentioned, for one reason or another the noble and learned Lord the Attorney-General had got himself involved.
I wish to be constructive and not dwell on past mistakes, because I firmly believe that the noble and learned Lord believes in the stand-alone military command justice system. I therefore hope that he will use his supervisory role less, as the noble Lord, Lord Campbell of Alloway, implied, to conjure up reasons to take the investigation and prosecution away from the military prosecuting authority and much more to ensure that the military system is working fairly, efficiently and effectively and has his full support.
To meet the criteriano doubt noble Lords will return to this when the new Armed Forces Bill comes before your Lordships' House shortlyin all matters involving a serious criminal charge, there should be an early and properly professional investigation by military police. If it is not professional enough, it should be made as professional as it possibly can. It should be fully conversant with the military circumstances prevailing. The investigation should be sent to the military prosecuting authority through, or with copies to, the chain of commandin the case of the Army, at one-star or two-star levelwho can ensure that the military prosecuting authority is conversant with the military circumstances prevailing at the time of the incident.
It would then be up to the military prosecuting authority to make an independent judgment as to whether a prima facie case to prosecute exists. That should then be handledagain, this will come up
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when we discuss the Armed Forces Billby a court martial composed of operationally experienced officers or, in some cases, warrant officers. That will have to be looked at again carefully when the Bill comes before your Lordships' House, as a standing court is being proposed. Anything that does not come under the heading of a serious criminal offence should be dealt with initially by the commanding officer, both because of the necessity for speed in justice and because of the need to maintain the authority of the chain of command who, with proper front-line legal advice, could either deal with the case summarily, where that is in his powers, and dismiss the charge, or refer it for a court martial through the military prosecuting authority. The whole process should be completed in a reasonable period, which should be far shorter than the regrettable two to three years that have recently occurred. That is terribly important.
If we can achieve those things and keep the chain of command in contact with the military justice system, we will have a system that not only safeguards the good name of the Armed Forces for decent behaviour but keeps the confidence of those committed to combat situations, who often have to do their duty under the most difficult circumstances.
Lord Lyell of Markyate: My Lords, I, too, add my thanks to the noble Lord, Lord Campbell of Alloway, for introducing this debate today and enabling us to continue to consider the role of the Attorney-General and of the prosecuting authorities in the presentation of this kind of casethe investigation, the supervision, the careful superintendence of the approach of the prosecuting authorities, carrying that right through to trial.
I want to draw on lessons which I believe can be learnt from the recent case of the Crown against Corporal Evans and others, which was decided by Judge Advocate General Blackett in a careful judgment to which I want to refer, because I believe that serious lessons can be learnt about the proper implementation of the Code for Crown Prosecutors. I would be grateful if, at the end of this debate, the Attorney-General would take this matter away to study carefully whether that code was indeed properly implemented and let the House know either today, if he is in a position to do so, or later, perhaps through a letter, what his findings are.
When I raised this matter in a Starred Question the other day, the noble and learned Lord the Attorney-General reminded the House, perfectly accurately, that the Judge Advocate General had said that he made no criticism of the prosecution or the Army Prosecuting Authority,
"even though I have directed verdicts of Not Guilty at this stage. Where on the face of the papers presented by the investigators a serious crime appears to have been committed it is perfectly proper to take the matter to trial, and in this case the prosecution team have presented their case properly and objectively".
The Code for Crown Prosecutors is a vital step in the administration of justice. It is very important that no one should be brought to trial unless there is sufficient reliable, credible evidence to give rise to a realistic prospect of conviction. That is because prosecutors are in a very strong position to seek to judge the rights and wrongs of the case and may bring forth the case on specone goes back to early days when police officers sometimes said, "I think that this matter should be brought before the courts". The code makes it perfectly clear that a case should be brought before the court only if there is a realistic prospect of conviction on the reliable, credible evidence seemingly available at the time. Of course, that does not mean they must judge the evidence completely, but they must do their best to test it. That is made perfectly clear by paragraphs 5.4f and 5.5 of the Code for Crown Prosecutors. Paragraph 5.5 states:
"Crown Prosecutors should not ignore evidence because they are not sure that it can be used or is reliable. But they should look closely at it when deciding that there is a realistic prospect of conviction".
Looking at the findings made by the Judge Advocate General in this case, I believe there really ought to have been concerns about the accuracy and credibility of the evidence. First, there were three female witnesses. Very quickly it came out at the trial that those female witnesses had deliberately made up their evidence in order to obtain compensation, and that serious cases of conspiracy to pervert the course of justice might have to be considered. Turning then to the three Iraqis who were stopped and allegedly seriously beaten up by the Army, in the view of the Judge Advocate General it appeared that when tested, it was plain that their evidence had been so grossly exaggerated that it was, to quote him,
It may be the case that all that could only have come out at trial, but such is the strength of the words of the Judge Advocate General and so short was the period during which the alleged beating was supposed to have taken placethe witnesses said that it had gone on for an hour but, as the Judge Advocate General said, if anything like that had happened, they would have been beaten to a pulpthat one really wonders whether the investigating authorities and the prosecuting authorities supervising them did look carefully enough at the strength of the evidence.
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When one is prosecuting and applying the code, it is absolutely essential to lean neither forwards nor backwards. The fact that it may be in the public interest to prosecuteand it would be in the public interest to prosecute in a case like this if the evidence were sufficient; there is no doubt about thatcannot override the need for sufficient credible and reliable evidence. That matter, as I have said, has to be looked at dispassionately. It is one of the safeguards for the administration of justice and one of the safeguards for the citizen. Therefore I ask the Attorney-General to go back to this case and look at it very carefully to see whether he does think that the prosecuting authorities fulfilled their role at every stage. It is a continuing duty which runs through from the point at which the Army Legal Services look into what investigations have been carried out by the Royal Military Policethe judge criticised those investigations as "inadequate"to the members of the independent Bar. They have a duty, in consultation with the Army Legal Services, to continue to review these matters to see whether a case has properly been brought to court. I am not in a position to reach a conclusion in this case, but the noble and learned Lord is and it would be very interesting to hear what he has to say.
I want to add one further point which causes me some concern in this area. I noticed in the latest annual report from the Director of Public Prosecutions that there now seem to be two tests for the Code for Crown Prosecutors: the full test and what is called the "reasonable suspicion" test. The Attorney-General may be able to say a word about that in his response to the debate. My reading of the test of reasonable suspicion is that it is not clear how it operates, it is not clear whether it is intended to change the law in any wayalthough it seems to indicate that it is notand it is not clear that someone really could be charged and held on reasonable suspicion for any longer than the four days that are permitted under the law. Some clarification of this point would be welcome.
One of the reasons that it would be welcome in the context of this debate is that the way in which prosecutors prosecute depends very much on the signal sent out from the top. The Attorney-General is the top and perhaps he could look at the signal which it seems is being sent out in this area.
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