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The basic rule is that service law and the criminal law of the land sit side by side. In round terms, a serviceman is answerable to the law of the land, and Clause 24 extends it to overseas, which seems complicated but is really very simple. A serviceman has to obey the criminal law and, broadly speaking, must obey service law on top of that. This part of the Bill is unique in that service personnel are excepted from a piece of the law which applies to civilians, and that is the Railways and Transport Safety Act 2003. Certain sections of that Act specifically except the military. The Explanatory Notes at paragraphs 36 and 37 highlight the fact that there is an exception. My first question is: why was this exception necessary? The Act itself is beautifully straightforward. I will not go into the railway area because it forms so small a part of military activity that it is not worth mentioning. How it relates to shipping is also extremely straightforward. Basically, the Act applies to,

The aviation part of the Act states that an offence is committed if,

An aviation function is defined simply as,

Various other categories are mentioned, including members of cabin crew and air traffic controllers. It is difficult to understand why it was necessary to except the Armed Forces from this Act. I would have thought that, as a generality, one would not want the pilot of an aircraft, whether it be a military or civil craft, to have his performance impaired by alcohol. My basic proposal is to delete these two exceptions and to ask why they were necessary in the first place.

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It seems that the Ministry of Defence has had second thoughts and sees the necessity of bringing a similar law into effect, which will be the effect of the various clauses set out in the Bill that relate to alcohol. However, a rather difficult idea is introduced. Instead of prescribing the roles and acts along the lines of the civilian law, the Bill states that a duty may only be prescribed if its performance while the ability to do so is impaired through alcohol and carries the risk of,

The beauty of the Act is that it is extremely clear about what activities it applies to. The service law should be equally clear.

The issue of drink and safety-critical activities is close to my heart. I had an early career in aviation and then one in the railway industry. When I joined the railway industry, there were serious problems with drink and safety-critical activities. It is now a leader in the country in having a very strong campaign that has driven drink out of the industry in safety-critical areas. To do that, it uses not only the 2003 Act but also random testing. My second concern that I put to the Minister is this. In seeking to bridge the gap-obviously the department has felt it necessary to move into testing-why do the Government not produce a simpler piece of law by essentially adopting the Act and removing the exceptional clauses? Secondly, why do they not write into the Act-if they feel the need to do this by an Act-the capability of random testing, which has proved so effective in the railway industry and has contributed so significantly to the improvement in safety? I beg to move.

Lord De Mauley: My Lords, on behalf of the Bill team, I thank the noble Lord, Lord Tunnicliffe, for his very generous words at the start of his speech. In putting forward Amendment 23, the noble Lords, Lord Tunnicliffe and Lord Rosser, bring personal experience of the operation of the Railways and Transport Safety Act 2003 in the civilian environment, which is helpful to the Committee in considering the provisions for the Armed Forces set out in the Bill.

First, I will say something about our general approach when looking at whether to apply to the Armed Forces legislation that is aimed primarily at civilians and civilian institutions. In some areas of law, we follow closely-and in some cases apply directly-the general law that applies to civilians. As the noble Lord, Lord Tunnicliffe, said, this is most notable in the application of the criminal law and many aspects of criminal procedure and evidence. However, noble Lords will accept that the circumstances of Armed Forces life, and the need to ensure the highest standards of operational effectiveness, mean that we have to look very carefully at whether we need different provisions and solutions for the Armed Forces.

The Railways and Transport Safety Act applied the sensible principle of giving powers to test on the basis of a reasonable ground to suspect that someone carrying out navigational and other transport-related activities has taken drugs or alcohol. The Bill adopts this basic

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approach. However, in deciding what to put in place, we have also considered two special aspects of service life and defence needs. First, members of the Regular Forces, and members of the reserves when they are with the Armed Forces, are on duty or on call for duty 24 hours a day. Secondly, the range of their safety-critical duties is extremely wide. On operations and in training, members of the Armed Forces are constantly dealing with danger and with dangerous equipment and activity.

The approach we decided on includes a number of special aspects in response to these factors. It allows a commanding officer, with reasonable cause, to consider the testing of anyone under his command to establish whether they are unfit through drink or drugs to carry out any duty which they may be expected to carry out and which the commanding officer considers is safety-critical. In addition, it allows specific limits to be set by regulations for any safety-critical duty. This will allow us to develop a comprehensive regime for drugs and alcohol safety over the whole range of military functions.

There is another important difference from the civilian provisions. As I have mentioned, members of the Armed Forces are always subject to be called on to carry out duties. Many of them are living permanently on base and there is no easy way of saying whether, at any one moment, they are on duty or off duty. Moreover, the likelihood of their being called on to carry out dangerous tasks varies greatly in practice between locations-between Afghanistan and places of rest and recreation. We considered carefully how to avoid a necessarily wide power to test from becoming oppressive.

To deal with this, we have provided that it is the commanding officer who will decide, for example, when and whether those under his command are likely to be called on to carry out dangerous tasks. This will allow the chain of command to apply reasonably flexible policies on testing between different theatres and locations. By taking this approach we have tailored the scope and application of drug and alcohol testing to fit service life and needs. I hope that the noble Lord will feel able to withdraw his amendment.

7.30 pm

Lord Tunnicliffe: My Lords, I note what the Minister has said and will read his words with care. I am less than convinced by the argument about always being on duty. The words that have been put forward are about specific tasks and it is entirely possible to bring this more in line with the 2003 Act. However, for the moment, I beg leave to withdraw the amendment.

Amendment 23 withdrawn.

Clause 9 agreed.

Clauses 10 and 11 agreed.

Amendment 24

Moved by Baroness Finlay of Llandaff

24: After Clause 11, insert the following new Clause-

"Procedure on arrest for substance abuse, violence against the person or damage to property

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After section 74 of AFA 2006 insert-

"Procedure on arrest for substance abuse, violence against the person or damage to property

(1) If a person subject to service law-

(a) has been arrested on suspicion of committing an offence,

(b) would be the person's first offence, and

(c) the offence is related to substance abuse, violence against a person or damage to property,

prior to any decision as to charge, the prosecuting authority shall consider diverting the person for specialist services to assist with substance abuse and mental health treatment either in the community or through existing services in Her Majesty's armed forces.

(2) The prosecuting authority shall also commission and obtain a psychiatric assessment of the arrested person in order to assess that person's needs and manage that person safely.

(3) No decision to charge the arrested person shall be made at the time of arrest and such a decision shall take place only when the prosecuting authority has consulted the specialist services involved and reviewed the psychiatric assessment.

(4) The above conditions do not apply unless, at the time of arrest, the arrested person was serving in Her Majesty's armed forces.""

Baroness Finlay of Llandaff: My Lords, I know that the hour is late and I am grateful to the Committee for allowing me to move this amendment at this time. The basis of the amendment is to identify people serving in the Armed Forces who commit offences while fuelled by drugs or alcohol, and who therefore have related underlying mental health problems. There is a duty of care on the Ministry of Defence to afford special consideration to those people whose alcohol abuse or drug treatment has come as a result of their experience and to put them into appropriate programmes as soon as possible, preferably before any charging decision is made.

In civilian life, at the discretion of the police or the Crown Prosecution Service, there is the opportunity to permit a defendant to go into a treatment programme in the community rather than go before the magistrate and get a criminal record. The idea behind this amendment is that the Armed Forces covenant, which is the basis behind much of what we have been addressing today and is so important, in no way could inadvertently disadvantage someone in the forces.

The way in which military court services operate means that in-depth access to the defendant's circumstances sometimes may not come to light. Therefore, mental health and substance misuse issues can be missed and could even be exacerbated, with disastrous consequences in the long term. Sadly, there are stories of really frenzied attacks and incidents that have been fuelled particularly by alcohol. An SAS veteran, Chris Ryan, pointed out that it is often 10 or 15 years after people have left the Armed Forces that they reach their lowest point.

The underlying premise of the amendment is that if you can pick people up early and treat the root cause when they are exhibiting the early symptoms of drug and alcohol misuse, you would prevent a long-term problem later. The Armed Forces operate a parallel structure of community mental health teams, so the infrastructure is in place. In his report of 2010, Fighting Fit, Dr Andrew Murrison MP noted that the linked issue of alcohol abuse is significantly associated with

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service in the Armed Forces and there is evidence that it is more common among combat veterans. This is not a small problem-it is one that needs to be addressed. It has been estimated that up to four out of five cases where military personnel have been involved with criminal activity may be fuelled by alcohol and drugs, and that they would not have committed the offences if it had not been for the excessive use of these substances.

There is an emerging problem in Afghanistan where heroin misuse is becoming particularly linked to criminal activity among serving personnel. There are community psychiatric nurses and consultant psychiatrists on hand in Afghanistan to deal with this, and there are very good outcomes when they deal with the problems immediately, in contrast to them becoming chronic problems. The US has learned lessons from its experience in Vietnam with drug abuse in particular and has realised that punishment does not actually work because you put these people into civilian life, but that early intervention is particularly helpful. One of the problems is that if people are discharged out into civilian life and do not have the infrastructure support they need, the outbursts and consequent violence often associated with them can injure and traumatise or even possibly kill people who are closest to the person themselves.

It has also been estimated that 25 per cent of all home repossessions are from people with a service background, and there is a suggestion that that may be linked to higher alcohol consumption and spending a lot of money on alcohol, because alcohol consumption is extremely expensive.

The idea behind this amendment is to reflect the reality that we are asking a lot from our troops-we are asking them to risk life and limb-and that some of them will find that the way they cope with the trauma they have experienced is to try to numb themselves using drugs or alcohol, and that when they are really fuelled up like that they then go and commit offences. Unless we intervene rapidly and pick them up we may be creating a lifetime of dependency and problems rather than intervening early. I beg to move.

Lord De Mauley: My Lords, Amendment 24, moved by the noble Baroness, Lady Finlay, would apply whenever a member of the Armed Forces was arrested for a first offence related to alcohol or unlawful drugs, violence or damage to property. Before it could charge the accused, the service prosecuting authority would have to consult specialist substance abuse and mental health services, and to obtain and take into account a psychiatric report on the accused. The importance of the psychological state of an offender and the appropriateness in some cases of a specialist social or mental health approach instead of prosecution is well understood in both the civilian and service justice systems.

When a case is serious enough to go to the service prosecuting authority, it must consider the evidence available as to whether the suspect had the necessary intent to commit the offence under consideration. It must also consider whether the public and service interests-the interests of justice-make a prosecution appropriate. It is also the responsibility of the service prosecuting authority to keep these issues under review

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during the proceedings. The defence routinely provide submissions to the service prosecuting authority about the accused's state of mind and whether continued proceedings are appropriate. The service prosecuting authority is therefore able to review in context its assessment of what the interests of justice require.

It is also the service prosecuting authority's duty to disclose to the defence any facts it becomes aware of which go to mitigate the seriousness of the alleged offence. Where it seems to the service prosecuting authority that the interests of justice are not best served by prosecution, it can, and often does, go back to the chain of command to discuss how the chain of command can help to bring the suspect into contact with specialist services. This often forms part of a discussion on whether administrative action might be more appropriate than prosecution.

In court, in an extreme case, the defence may seek a decision that the accused is unfit to plead. There are special statutory provisions under which the judge advocate will consider and decide such applications. Where an accused is convicted, there are statutory provisions under the Criminal Justice Act 2003 for medical reports and pre-sentence reports. The court must generally obtain and consider a medical report before passing a custodial sentence where the offender appears to be mentally disordered. This is a report on the offender's mental condition made by a specialist medical practitioner. A pre-sentence report must generally be obtained by a court whenever it is considering a custodial sentence for an offender. The aim of such reports is to assist the court in deciding the most suitable method of dealing with the offender. It is made by the probation service and must, of course, be disclosed to the offender. The same requirements apply in both the service and civilian justice systems.

I believe that the current role of the service prosecuting authority in deciding whether to charge is the right one. It should, and does, consider what the interests of justice require, and in particular whether prosecution is appropriate. It does so by taking into account the evidence before it. However, I hope the noble Baroness will accept that it would be going too far to require the service prosecution authority to consult specialist services and obtain a psychiatric report in every case covered by the amendment. To do so would confuse the role of prosecutor and the court. It is right for the prosecutor to have some discretion in whether to prosecute and to respond to what the interests of justice plainly require. However, there is an important boundary to be maintained between that role and the proposed role requiring the prosecution to obtain and weigh expert evidence in every case before it can bring a charge.

Furthermore, the requirement for a psychiatric assessment in all the cases covered by the amendment would be excessive, and even unfair to the suspect. It would involve a delay before a decision was made on bringing a charge even in the simplest case. It would appear to expect, or perhaps require, the suspect to submit to psychiatric assessment even where he or she was not raising any psychological issue and there was no reason to suppose that there was such an issue. In some cases it would be impossible to complete this process within the very tight statutory limits that

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apply in the service and civilian justice systems to keeping a person in custody before charge. In other words, it would go well beyond what the needs of a fair and efficient system of justice require.

Lastly, it would mean that the procedures before charge, and the role of the service prosecuting authority, were very substantially different from those in the civilian system. We recognise the importance of the psychological and social background of an offender, but I do not consider that there are grounds for such different approaches between the service and civilian justice systems. Therefore, I ask the noble Baroness to withdraw the amendment.

Baroness Finlay of Llandaff: I am most grateful to the Minister for his detailed response to my amendment. I had hoped that the words "shall consider" in the first part of the amendment did not create an obligation.

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However, in the light of what he has said, I can see that I do not have the right wording. I wish to read what he has said, possibly discuss the matter with him outside the Committee and then consider what to do. In the mean time, I beg leave to withdraw the amendment.

Amendment 24 withdrawn.

Clauses 12 to 14 agreed.

Schedule 1 agreed.

Clauses 15 to 23 agreed.

Lord Wallace of Saltaire: It may be convenient for the Committee to adjourn until Thursday at 2 pm.

Committee adjourned at 7.44 pm.

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