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Lord Kingsland: My Lords, I associate myself with all of your Lordships who have thanked my noble friend Lord Campbell of Alloway for raising this issue in the House today. As I think the noble Lord, Lord Thomas of Gresford, said, my noble friend is in a unique position to do so. He has not only practised as a Queen's Counsel in the courts for many years, but also experienced some of the most severe fighting ever seen on the continent of Europe, in May 1940 during the devastating German advance.

I also thank the noble and learned Lord the Attorney-General for a meeting he attended, together with General Howell and a number of his own civil servants, to discuss the matters before this House today, and other matters. I doubt whether the Attorney-General will agree with everything I say at the Dispatch Box; but, agree or disagree, I would like him to know that we appreciated the fact that he gave us so much time.

As your Lordships will recall from the debate on 15 December, the noble and learned Lord the Attorney-General believes he has the constitutional power, at any stage during its investigatory or prosecutorial phase, to transfer a case from the military system of jurisdiction to the civil system. He knows that we disagree with that belief, for a number of reasons that were set out in detail during that debate. Briefly, those reasons are that we believe his supervisory power over the military prosecutorial authorities does not include a power to take executive decisions with regard to the cases in front of those authorities; we can find no precedent for any previous Attorney-General asserting this power; and, throughout, the noble and learned Lord has given no legal or constitutional justification for what he has done.

Irrespective of whether we or the noble and learned Lord the Attorney-General are right about this, no one can doubt that the power asserted by him is exceedingly wide and wholly unreviewable in the courts. As so many of your Lordships have said, that is proving extremely damaging to the state of morale in the Armed Forces. A soldier, aviator or seaman has the right to expect that, if his judgment in the course of operations is going to be called into question, that judgment will be considered by those who understand what it is like to be in a similar situation. That, surely, is the crucial issue that lies behind these matters. Soldiers facing the kind of difficulties outlined so graphically by my noble friend Lord Astor have to make decisions in extremely short timeframes, to use modern jargon, sometimes split-seconds. That is an experience very few civilians have.

Because the Attorney-General's discretion is so wide and ill-defined, the crucial ingredient we now need to insert into decisions about whether a particular
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case should take place under civil or military jurisdiction is a powerful injection of certainty. That is precisely what the proposal by my noble friend Lord Campbell of Alloway will give. Servicemen will know that, before a case can be transferred from military jurisdiction to civil, they will have a right to be heard in the High Court before one of Her Majesty's judges, and that it will only be after that decision that a transfer can be made.

My noble friend's proposal will not only bring certainty; it will bring two other important ingredients to which many of your Lordships have referred today. The first of these is transparency. Justice will be seen to be done. The second is that it will give the opportunity to both the Attorney-General and the serviceman in question to explain, and make submissions about, what is in the public interest.

In my view, that factor is of even greater assistance to the noble and learned Lord than it would be to the serviceman, because the noble and learned Lord will inevitably face criticism, as many of your Lordships have said, about being influenced by political factors. We all accept that he has never been influenced by such factors in taking decisions during the time that he has been in office; but he will undoubtedly be accused of being so. Such a public hearing in front of a High Court judge will give him the opportunity to demonstrate that he is influenced purely by the wider public interest, as explained by the noble Lord, Lord Thomas of Gresford.

Many other issues have been discussed in the debate. In my submission those concerning the rules of engagement—the importance of the principle that as long as a serviceman sticks to the rules of engagement he will not be subject to prosecution—and the wider questions about the adequacy of resources devoted to investigations by the military authorities have a particular importance in overall consideration of these issues. Your Lordships' House is extremely fortunate in that, very soon, the Armed Forces Bill will be before us. Perhaps we will have an opportunity, at that time, to consider not only the proposal of the noble Lord, Lord Campbell of Alloway, in the form of an amendment to the Bill, but other possible solutions to the difficulties of certainty and morale which have been so eloquently expressed by so many of your Lordships today.

1.31 pm

The Attorney-General (Lord Goldsmith): My Lords, I, too, welcome the fact that the noble Lord, Lord Campbell of Alloway, has initiated this debate. It has been a very constructive debate. It is necessary for me to deal still with one or two matters in relation to the past but I want to say something also about the future because I detect a strong sense of agreement on where we need to go. I shall come back to that.

I am grateful to the noble Lord, Lord Kingsland, for mentioning the meeting to which I invited Peers who were interested in this debate, which took place just over a week ago. I found that very constructive and I am grateful to those noble Lords and noble and gallant Lords who attended.
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I want to make one or two important points on which I hope there is common ground. First, this House and this Government have huge admiration for our Armed Forces. I share very much in the pride that the people of this country have for our troops who have served with such distinction, bravery and ability not just in Iraq but in other places in the world. No Minister of this Government would want to do anything which undermined the effectiveness of our Armed Services.

Secondly, I hope that my next point is common ground in this House—we all agree that members of our Armed Forces, like everyone else, must be subject to the rule of law, and that there cannot be exceptions to that. Where there are credible accusations of criminal behaviour, it is clearly right that they should be investigated and where there is sufficient evidence to prosecute, they should be prosecuted.

Thirdly, I am glad that in the course of this debate generally it has been accepted that decisions to prosecute servicemen or servicewomen have not been politically motivated or driven by political correctness. I have said before, General Sir Mike Jackson has said before, as the noble Lord, Lord Garden, pointed out in evidence to the Select Committee on the Armed Forces Bill, Major General Howell and the Chiefs of Staff all said the same thing—those accusations are untrue. I shall come back to the significance of those statements. I very much welcome the endorsement of the position. If the noble Lord, Lord Campbell of Alloway, will forgive my saying so, I noted that, notwithstanding his generous statements about me, which he has made before, he said that people need to know that decisions are made in the public interest and are not motivated by the political interests of the Government. That is absolutely right; the political interests of the Government do not come into this at all. The letter to which he referred—he has referred to it before; as he knows, I had not seen it at the time—was not about placating human rights interest groups but about making a point of importance, which is that credibility in our justice system depends on decisions being taken by independent persons. My noble friend Lord Moonie rightly took that one stage further by saying that if we want—as I certainly do—to ensure that no British serviceman or servicewoman ever appears before the International Criminal Court—though I strongly support the existence of that court—we need to demonstrate that we have a system which is capable of investigating and, where appropriate, dealing with allegations of criminality. That is important. I believe that we have such a system, which is why I do not believe we will see our servicemen or servicewomen in that court.

On the specific points that have been raised, I wish to say a few words about two cases, the Trooper Williams case, which was referred to by a number of noble Lords, and the Corporal Evans case, which was referred to by the noble and learned Lord, Lord Lyell of Markyate, and touched on by the noble Lord, Lord Thomas of Gresford. I want to put those cases in context because sometimes one might get the
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impression from the media that a vast number of cases are presently being prosecuted or that a vast number of cases are being brought into the civilian jurisdiction.

As Major General Howell said in his evidence to the Select Committee, there have been only 12 cases involving 43 accused brought to the Army Prosecuting Authority in which there were allegations of offences of murder, manslaughter or serious abuse of detainees. Those cases comprise a very small number of the nearly 80,000 troops who have served in Iraq, and with conspicuous ability, courage and respect for the rule of law. The Army Prosecuting Authority decided to proceed to trial in only four of those 12 cases. In a number of those other cases, where it was decided not to proceed to trial, decisions had been made in a matter of seconds in difficult situations. In those cases, mistakes were made resulting in someone who was not the enemy being killed or injured. Notwithstanding that, the prosecuting authority rightly did not proceed with those cases. In one of the cases that was proceeded with the accused were convicted—the so-called Camp Bread Basket case. The second was the Evans case, to which I shall come back. The third and fourth trials are due to take place in the future and therefore it is not appropriate for me to say anything about those. I need to refer to only two other cases involving service personnel which have not been dealt with under the military system. One is the Trooper Williams case and the other is a case in which charges have not yet been brought but is currently—as I believe is public knowledge—under consideration by the Crown Prosecution Service. Those are the only two cases which have been brought—or potentially brought—within the civilian system.

What is the position with the Trooper Williams case? Some noble Lords have talked about this case as involving a choice by me between military and civilian jurisdiction. That is not the fact. The situation on that case was that charges had been dismissed by a commanding officer without the decision of an independent prosecutor.

Under the terms of the Army Act, he could not then be put on trial by the military system, but it is clear from Section 133 of the Army Act that that did not mean that the civilian jurisdiction was removed. That point was debated before Mrs Justice Hallett when she heard the application in that case and she upheld the position that civilian jurisdiction was not removed. There was no question of a choice between the two; the only available route, if there was to be a prosecution at that stage, was using the civilian court. The matter was referred to me by the director of Army Legal Services at the request of the Adjutant-General, who did so following discussions with the Chief of General Staff and the Commander-in-Chief at land. They believed that the case should be referred to me and that a wrong decision had been made. I do not want to go into the details of the case because it is absolutely right, given what has happened, that this young man and the corporal who was the other man involved, whose view of the incident was enormously influential in the case being brought, should be able to put all this behind them.
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I think I can leave it by saying, so that there is no doubt about it, that the learned judge, Mrs Justice Hallett heard substantive application which dealt with two issues. The first was that the case should not go ahead precisely because, it was argued, it was unfair, it was wrong, it was an abuse for the case to go ahead in circumstances where there had already been a decision by the commanding officer not to proceed and because of the delay. She considered those arguments but concluded that that was not a reason not to go ahead with the case. Secondly, she was asked to look at the evidence, which she did in detail. She heard evidence from senior officers who had served in Iraq about the operational circumstances and she concluded that there was sufficient evidence to put before a jury to convict of murder. So the case was looked at in considerable detail. When I come in to deal with the proposal of the noble Lord, Lord Campbell of Alloway, that those matters should go before a High Court judge at some stage, it is right to recall that this did go before a High Court judge. She considered all the arguments and concluded that it was right and proper to proceed but that it was for the prosecutors to decide whether they would do so. I will not go into more detail of the circumstances in which the Director of Public Prosecutions took the decision not to proceed with the case.

The question, posed by the noble Lord, Lord Kingsland, arises: what is the power of the Attorney-General? First, as has been noted—and my noble friend Lord Moonie explained the background to this—I have superintendence responsibility not just to the Army Prosecuting Authority but also to the other two authorities; I see the prosecuting authority for the Royal Air Force and for the Navy. So I am not absolutely sure that the advice that the noble Earl, Lord Attlee, had in mind to offer to others to go to another service will achieve his objective—it is the same system. Let us leave that where it is.

The question arises: what to do in circumstances of concurrent jurisdiction? Concurrent jurisdiction arises in three circumstances. First, there are many hundreds of cases each year in the United Kingdom where there is concurrent jurisdiction. Service men and women commit or allegedly commit offences, sometimes only against military law, but sometimes against the civil law as well, and the question has to be decided in those cases: where do they proceed? Hundreds of times each year, the United Kingdom military and civil police and the prosecuting authorities decide whether those offences should be tried in the military or the civil courts. In each of those cases they apply, without apparent difficulty, guidance set out in the Queen's regulations and they discuss that matter between them. The proposal of the noble Lord, Lord Campbell, might suggest that in each of those cases an application might need to be made before a High Court judge. That cannot conceivably be right.

Secondly, there are cases where our troops are stationed in a country such as Germany where, again, matters take place that are an offence against German law or whatever the local jurisdiction is. There is an
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arrangement there between the military authority and the civil authority as to what should happen in those circumstances. The principle is that the civilian authority has primacy, but waiver of jurisdiction agreements generally allow the military authorities to operate.

Thirdly, in respect of very few offences—only serious offences such as murder, manslaughter and breaches of the Geneva Conventions—the United Kingdom courts have jurisdiction if they are committed by a British subject wherever they take place. That is the narrow category of case of which Trooper Williams was an example.

Who decides in those circumstances which should be the jurisdiction? When I started in office nearly five years ago, the prosecuting authorities told me that it was their practice to bring those matters to the Attorney-General for a decision and that they had been brought for a decision to predecessors of mine. Secondly, as I noted in the debate in the House of Lords to which the noble Lord, Lord Kingsland, referred, regarding the important case of Boyd, Hastie, Spear and others, the House of Lords, particularly the noble and learned Lord, Lord Rodger of Earlsferry, said that in cases of overlapping jurisdiction it was for the civilian authorities to decide. I am the ultimate civilian authority in relation to criminal law in England and Wales.

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