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Lord Truscott: My Lords, I am grateful to the noble Lord, Lord Campbell of Alloway, for introducing this important debate. He has had a long and distinguished legal career, he served with the British Expeditionary Force in the Second World War and he was incarcerated in Colditz. Your Lordships will always be interested to hear whatever he has to say on any subject, and today is no exception. As the noble Lord demonstrated, he has given us much food for thought, and I am sure that my noble and learned friend the Attorney-General will respond to his proposals.
 
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Unlike the noble Lord, Lord Campbell of Alloway, I have not studied the law. I have, however, studied history. When I think of the 300 Spartans under King Leonidas as they stood against over 40,000 Persians at Thermopylae in ancient Greece, it is probably a safe bet to assume that the forebodings of court martial were not uppermost in their thoughts. Even the well disciplined Roman army had scant regard for the human rights of their enemies, something that Queen Boadicea, or Boudicca if you prefer, paid back in spades when she sacked two Roman cities here in the 1st century.

War began to change its nature in the Middle Ages when the fathers of the Christian Church, from St Augustine onwards, began to teach a doctrine of just war, which required soldiers to spare women and children, to accept the surrender of enemies who had dropped their weapons, and to accept the inviolability of inhabited places where resistance was not offered.

By the early 20th century, both military discipline and the treatment of civilians and non-combatants had changed irrevocably. The First World War saw relatively few crimes which could be described as "war crimes", despite the appalling bloodshed of that conflict. But in 1919, following the Amritsar riots in the Punjab, 379 unarmed Indians were massacred on the orders of a British officer, General Dyer. The subsequent government commission of inquiry severely censured Dyer and he was required to resign his commission.

In the Second World War, noble Lords may recall that US General George Smith Patton was severely reprimanded for assaulting one of his own soldiers, and of course by then the treatment of prisoners of war was governed by the Geneva Convention. The UK ratified the European Convention on Human Rights without reservation in 1951. The primary purpose of Article 6 is to ensure a fair trial for the individual.

In more recent history, we have had our own experiences in Northern Ireland, including the Private Clegg case and, before that, the Bloody Sunday shootings. As my noble friend Lord Moonie indicated, and he has a great deal of experience in this area, it has now long been the case that British soldiers and servicemen have been accountable for their behaviour towards civilians and non-combatants, especially where lethal force has been used. None of this is new. Service personnel were investigated for alleged crimes in the Falklands and Bosnia campaigns. Your Lordships know only too well that our Armed Forces face extremely testing conditions in Iraq and Afghanistan—the latter was mentioned by the noble Lord, Lord Garden—where the threat of roadside bombs and suicide bombers is ever present. British servicemen and women carry out their duties with tremendous courage and professionalism.

If mistakes are made in the name of self-defence or in the heat of battle, the law and the courts should show understanding. Members of the Armed Forces face daily threats and stresses that most of us in this country thankfully will never have to confront. But where there is wilful mistreatment or the reckless
 
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taking of innocent lives, British soldiers must be held to account. I believe that the contribution of the noble Lord, Lord Garden, would support that view, as would that of the noble and gallant Lord, Lord Bramall. The British public, world opinion and the vast majority of Her Majesty's Armed Forces would expect no less. As General Sir Mike Jackson, head of the British Army, said:

He went on to accuse those who criticised the prosecutions of making,

of Army investigators, and added:

The noble Lord, Lord Garden, quoted Major-General Howell's similar remarks.

We should be careful not to cast aspersions on the integrity of those who have made the judgment to prosecute even though we may disagree with those decisions. We can, however, unite to express concern about the inordinate delay in bringing prosecutions in some of those cases in the first place, a point made by the noble and gallant Lord, Lord Bramall. I hope my noble and learned friend the Attorney-General will reply to this point in his summing up.

On the current relationship between the Law Officers and the service prosecuting authorities, my understanding is that the Attorney-General answers to Parliament for the prosecution decisions and overall policies of the prosecuting authorities. The Army Prosecuting Authority is subject to the general superintendence of the Attorney-General, a point already mentioned today. He is not responsible for its staffing, resourcing and general establishment, which remains the responsibility of the Secretary of State for Defence. The Attorney-General and his predecessors have exercised this general superintending function to offer advice and general guidance to senior staff of the three service prosecuting authorities.

Since 2003, the Army Prosecuting Authority has consulted the Attorney-General on a total of 12 serious Iraqi cases involving allegations against UK servicemen. The APA decided to proceed with four of these 12 cases: one case has been dismissed, with no criticism made of the APA—I believe this was the case referred to by the noble and learned Lord, Lord Lyell of Markyate—one case led to conviction and two cases are proceeding.

As my noble friend Lord Drayson said in your Lordships' House in July of last year during the debate on the chain of command, the number of investigations is very small bearing in mind the number of personnel who have served in Iraq. Of the 176 cases mentioned during that debate, 151 were closed without any further action being taken. In 100 of those incidents, British troops had been fired upon. This needs to be seen in the context of the 70,000 military personnel who have served in Iraq.
 
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In conclusion, I hope that the process of justice within the Armed Forces will be much improved by the Armed Forces Bill, which seeks to consolidate the service discipline Acts into a single system of service law and to bring service law more closely in line with civil law—and here I probably differ with the noble and gallant Lord, Lord Bramall. It will introduce a joint prosecuting authority in place of the three separate existing prosecuting authorities. In particular, I welcome the intention to create a tri-services redress of complaints panel with an independent element. I believe that such a panel would be widely welcomed in Her Majesty's Armed Forces, which remain the best armed forces in the world.

12.33 pm

Lord Mayhew of Twysden: My Lords, I, too, thank my noble friend Lord Campbell for giving us the opportunity to discuss an element of the Attorney-General's responsibilities upon which, until recently, no light seems to have shone. I refer, of course, to his superintendence of the activities of the Army Prosecuting Authority and what must in reality be his decisive influence upon the question of whether a soldier should be tried by court martial or in the civilian courts in respect of a serious offence such as murder.

It is plainly a topical matter because thousands of British troops are deployed already in Iraq, in very dangerous and testing circumstances, and many more are about to go to Afghanistan. It is important, too, because they need—and certainly deserve—clarity, not only as to the law within which they have to operate but also as to the fairness of any proceedings which they may find themselves facing. That requirement of fairness of proceedings certainly extends, I believe, to the character of the tribunal which will try them.

The Armed Forces of the Crown—uniquely, as far as I am aware—have been given by Parliament, over many years, their own system of criminal justice, which includes sanctions potentially providing for extremely severe penalties in a proper case. It is not any anomalous quirk of history that has provided for this arrangement. It exists because Parliament has recognised the unique severity of the dangers that soldiers—and it can be true nowadays of all servicemen and servicewomen—may be called upon to face, a point eloquently and authoritatively made already today by the noble and gallant Lord, Lord Bramall. They have to take instantaneous decisions, as has often been recognised in this House, on the strength or weakness of which they may themselves die.

That is why a system of martial courts, staffed by martially experienced people, has been provided which, professionally directed as to the law, can bring to these trials a personal understanding of the realities of conflict that cannot be expected from a civilian court. I think, for my part, that soldiers have found this reassuring, and certainly the noble and gallant
 
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Lord, Lord Bramall, and others with a wealth of military experience have confirmed that on previous occasions.

I have absolutely no problem at all with the arrangement whereby the Attorney-General superintends the Army Prosecuting Authority, who also serves as the Director of Army Legal Services. After all, for more than 100 years, the Director of Public Prosecutions has by statute been superintended by the Attorney-General. So far as I am aware, the word "superintend" has never been construed—and very properly so, because it means what it says. This has given rise to a thoroughly commonsense relationship between the Law Officer whose duty it is to answer to Parliament for prosecuting policy, as the noble Lord, Lord Truscott, said, and the professional head of the Crown Prosecution Service, who is the decision taker.

However, those two—the Attorney-General and the DPP—have never had to decide which of two quite different criminal jurisdictions should be selected in a particular case, and yet in the now notorious case of Trooper Williams this was the critical choice that the Attorney-General made. This is clear from the documents that my noble friend Lord Campbell has brought forth. It is a decision that has caused much concern. That seems to me to be the crucial decision where you have a jurisdiction to choose or where you express a decisive preference for one jurisdiction or another.

The Williams case displayed the significance of that choice very vividly. In that case the Attorney-General plainly advised a further trial—this time in the civilian courts—of charges which had already been dismissed by two commanding officers. We have heard all this before and I have no intention or need to reopen the Williams case today. It is enough to say that the ultimate decision to drop the case—virtually at the door of the court—was received with a great deal of satisfaction by a great many people who had been worried by it. It took six months for Williams to be told that the matter was being reconsidered after dismissal of the charges, and another three months before he was told that he was going to face trial again, but it was very noticeable that at no stage during that deliberative process—which I am sure was anxious and conscientious, and which certainly cannot be described as hurried—was Williams allowed to participate at all. Most of the time he was not even told it was happening.

Given the potential consequences for Williams of the decision to retry him, does the Attorney-General regard that procedure as unfair? Does it not stand in stark contrast to his own jurisdiction as Attorney-General regarding a sentence that he considers unduly lenient? He can seek the leave of the Court of Appeal to refer it for review. When I introduced that excellent reform—if I may modestly so describe it—in 1988, I do not think that I would ever have considered denying the defendant any right at all to be heard, and I would not have got the proposal through Parliament had I done so. In fact, the defendant has to be told by the
 
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registrar of the Court of Appeal of his right, on leave from the court, to present any argument to the court, in person or by counsel, even on the hearing of the Attorney-General's application, not to mention on any resulting hearing of the reference itself.

That is why my noble friend is so right to make the case today for a change. He does so, and so do I, without making the slightest imputation upon the integrity or the propriety of any decision taken by the Attorney-General on personal grounds. I well recall that the Attorney-General has as his daily fare one anxious decision after another as well as having to face the attentions of extremely versatile critics.

For my part, I would limit the scope for change to cases where the proceedings in question are to be taken against a soldier in respect of his conduct when in a conflict situation. If it is proposed that his case should be tried not by court martial but by a civilian court, I suggest, with my noble friend, that there should be a hearing before a High Court judge at the instance of the Attorney, with the defendant entitled to participate, or at least to seek the leave of the court to participate. The scope of the hearing should be wider than in an application for judicial review, and the burden ought to be on the Attorney to show why, notwithstanding the context of a conflict situation, it would nevertheless be in the interests of justice, including justice to the soldier, for the case to go to a civilian court on the basis of the evidence available. The application would be that of the Attorney; the decision would be that of the court. Whichever way it went, I think that much reasonable anxiety would be allayed in the hearts and minds of those—and their families—who, in the service of the Crown, are sometimes called upon to put their lives in mortal danger.

12.41 pm


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