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Army: Advice of Attorney-General

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 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 engagement—which have importantly been referred to several times already—if 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 justice—both of which, however rare, are potential miscarriages of justice—it 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 criteria—no doubt noble Lords will return to this when the new Armed Forces Bill comes before your Lordships’ House shortly—in 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 command—in the case of the Army, at one-star or two-star level—who 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 handled—again, this will come up when we discuss the Armed Forces Bill—by 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, were 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 keep the confidence of those committed to combat situations, who often have to do their duty under the most difficult circumstances.