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Army: Advice of Attorney-General

rose to call attention to the advice and guidance given to the Director of Army Legal Services and the Army Prosecuting Authority by the Attorney-General under his supervisory function; and to move for Papers. The noble Lord said: My Lords, this Motion affords, noble Lords may think, a much-needed opportunity for critical examination of the process under which resort to trial under the civil jurisdiction is granted by the Attorney-General. I raise this subject without in any way or in any sense calling into question personal integrity in the implementation of that process. I acknowledge with gratitude the informal advice of noble and gallant Lords and other noble Lords with relevant expertise, which I do not possess. They have provided advice on the legitimate expectation as to mode of trial by court martial for an offence committed on active service when peace-keeping in aid of a civil power—a matter, addressed by this Motion, of considerable concern to the Armed Forces. As to the concern of our Armed Forces, of course I defer to whatever may be said by the noble and gallant Lord, Lord Bramall, the noble Lord, Lord Garden, who has spoken in the interests of servicemen and women, and the noble Lord, Lord Thomas of Gresford, who has the conduct of relevant cases which no one else in this Chamber has had. To alleviate the concern of the Armed Forces and to safeguard the legitimate expectation as to mode of trial, it is proposed that application should be made by the Attorney-General for grant of resort to the civil jurisdiction to the High Court for adjudication according to law, and that the extant process of grant ex cathedra as an exercise of absolute discretion, not subject to review in the courts, be foreclosed upon. Within this process, it is complicit that no notice, no reasons and no opportunity for representation are given. This is exemplified by a letter sent by the director of Army Legal Services to the noble and learned Lord the Attorney-General on 31 March 2004, seeking resort to the civil jurisdiction, which was granted:"““It is important that I should mention that Trooper Williams has not been informed that this matter has been referred to the Attorney-General, and the Army would be extremity grateful, if any further action is contemplated, to be first notified so that appropriate steps are taken to notify Williams””." He was awakened in his barrack room, to be told that he was to be tried for murder and that his name would be in the papers the next day. The charge against Trooper Williams was dismissed by the commanding officers on MoD advice, but the director of Army Legal Services disagreed with the advice. If it had been referred to a higher authority, as was the wish of the director of Army Legal Services, it would not have been dismissed—hence the resort to civil jurisdiction in the end. Is not trial under the civil jurisdiction only appropriate and in the public interest where there are exceptional circumstances, such as someone frustrating due investigation, perverting the course of justice, assaulting civilians or prisoners and so forth? This should surely be a matter for overt decision according to law—not something within the closet of discretion, which cannot be examined and is, on the face of it, contrary to law. One must distinguish between what is in the public interest in this context and what is in the political interests of the Government. This decision is now made by the Attorney-General, but surely it should be made by the courts. Such is the situation which this Motion seeks to address. At regular meetings attended by the noble and learned Lord the Attorney-General, the director of Army Legal Services and the Army Prosecuting Authority, trial under the civil jurisdiction—not under court martial—is advised and, in fact, directed by the Attorney-General. It is not known at whose instigation this is, but documents appear to confirm it is at the instigation of the director of Army Legal Services—not the Attorney-General acting ex officio. But, of course, one does not know. This symbiotic, close working relationship—as I have said, within the closet of discretion—is without the law. It is unfair. It bears no kinship with justice to servicemen and women, or the regiment, and deprives one of any means of objection. The High Court would take note of the legal expectation as to trial—which is manifest in the Armed Forces Bill, but I am not dealing with that—and that someone who sits in judgment should have some relevant experience of the lethal circumstances in which this occurred. Applications would only be granted by the High Court if, in its view, they were in the public interest and not the political interests of the Government. They would only be granted if, on the face of the evidence, it was apparent that, on due legal direction, there was a reasonable prospect of securing conviction. That is a question of the quality of the evidence, which I will come to before I conclude. If the High Court granted the application, it would give directions as to trial, directions for the avoidance of delay and, as a result, the concerns of the Armed Forces would be wholly addressed. The Armed Forces would naturally be wholly content that the decision as to transfer in this way, or either of these ways, was within the jurisdiction of the High Court. The quality of evidence is of some importance. The Court of Appeal quite recently—I do not go in for quoting from cases, but if anyone wants to know, it is R (on the application of Al-Skeini and others) v the Secretary of State for Defence—adverted to the lack of resources for the RMP and the want of training as to proper investigation to get the quality of the evidence, relating this, admittedly, to Iraq. The Court of Appeal also said that investigation should be:"““wholly independent of the chain of command””," and that the first report from the RMP should be made to the Army Prosecuting Authority. A series of trials after undue, wholly unjustifiable, delay have collapsed on flawed evidence which could not properly support conviction. While such a situation remains, and is not addressed, retention is hardly encouraged. On 15 December 2005, my noble friend Lord Kingsland asked whether these powers as to mode of trial had been exercised by any previous Attorney-General, and whether there was any legal or constitutional basis for such exercise. My noble friend rightly asserted that, in default of an answer, there was no such power. These questions were not answered, and remain unanswered today. No other aspect of the supervisory role of the Attorney-General is being called into question. This sole one, however, is. I beg to move for Papers.