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Army: Advice of Attorney-General

My Lords, I, too, add my thanks to the noble Lord, Lord Campbell of Alloway, for introducing this debate today and enabling us to continue to consider the role of the Attorney-General and of the prosecuting authorities in the presentation of this kind of case—the investigation, the supervision, the careful superintendence of the approach of the prosecuting authorities, carrying that right through to trial. I want to draw on lessons which I believe can be learnt from the recent case of the Crown against Corporal Evans and others, which was decided by Judge Advocate General Blackett in a careful judgment to which I want to refer, because I believe that serious lessons can be learnt about the proper implementation of the Code for Crown Prosecutors. I would be grateful if, at the end of this debate, the Attorney-General would take this matter away to study carefully whether that code was indeed properly implemented and let the House know either today, if he is in a position to do so, or later, perhaps through a letter, what his findings are. When I raised this matter in a Starred Question the other day, the noble and learned Lord the Attorney-General reminded the House, perfectly accurately, that the Judge Advocate General had said that he made no criticism of the prosecution or the Army Prosecuting Authority,"““even though I have directed verdicts of Not Guilty at this stage Where on the face of the papers presented by the investigators a serious crime appears to have been committed it is perfectly proper to take the matter to trial, and in this case the prosecution team have presented their case properly and objectively””." Of course, I was not there and I hasten to say that it is no part of my speech today to criticise those final words:"““in this case the prosecution team have presented their case properly and objectively””." I think that they did that. Where a bigger question arises, which cannot really be answered by the Judge Advocate General, is when he states:"““Where on the face of the papers presented by the investigators a serious crime appears to have been committed it is perfectly proper to take the matter to trial””." Those words are not sufficient. They may be correct, but they are not sufficient in the context of the Code for Crown Prosecutors. The Code for Crown Prosecutors is a vital step in the administration of justice. It is very important that no one should be brought to trial unless there is sufficient reliable, credible evidence to give rise to a realistic prospect of conviction. That is because prosecutors are in a very strong position to seek to judge the rights and wrongs of the case and may bring forth the case on spec—one goes back to early days when police officers sometimes said, ““I think that this matter should be brought before the courts””. The code makes it perfectly clear that a case should be brought before the court only if there is a realistic prospect of conviction on the reliable, credible evidence seemingly available at the time. Of course, that does not mean they must judge the evidence completely, but they must do their best to test it. That is made perfectly clear by paragraphs 5.4f and 5.5 of the Code for Crown Prosecutors. Paragraph 5.5 states:"““Crown Prosecutors should not ignore evidence because they are not sure that it can be used or is reliable. But they should look closely at it when deciding that there is a realistic prospect of conviction””." Paragraph 5.4f states:"““Are there concerns about the accuracy or credibility of a witness in the case?””." Looking at the findings made by the Judge Advocate General in this case, I believe there really ought to have been concerns about the accuracy and credibility of the evidence. First, there were three female witnesses. Very quickly it came out at the trial that those female witnesses had deliberately made up their evidence in order to obtain compensation, and that serious cases of conspiracy to pervert the course of justice might have to be considered. Turning then to the three Iraqis who were stopped and allegedly seriously beaten up by the Army, in the view of the Judge Advocate General it appeared that when tested, it was plain that their evidence had been so grossly exaggerated that it was, to quote him,"““too inherently weak or vague for any sensible person to rely on it””." It may be the case that all that could only have come out at trial, but such is the strength of the words of the Judge Advocate General and so short was the period during which the alleged beating was supposed to have taken place—the witnesses said that it had gone on for an hour but, as the Judge Advocate General said, if anything like that had happened, they would have been beaten to a pulp—that one really wonders whether the investigating authorities and the prosecuting authorities supervising them did look carefully enough at the strength of the evidence. When one is prosecuting and applying the code, it is absolutely essential to lean neither forwards nor backwards. The fact that it may be in the public interest to prosecute—and it would be in the public interest to prosecute in a case like this if the evidence were sufficient; there is no doubt about that—cannot override the need for sufficient credible and reliable evidence. That matter, as I have said, has to be looked at dispassionately. It is one of the safeguards for the administration of justice and one of the safeguards for the citizen. Therefore I ask the Attorney-General to go back to this case and look at it very carefully to see whether he does think that the prosecuting authorities fulfilled their role at every stage. It is a continuing duty which runs through from the point at which the Army Legal Services look into what investigations have been carried out by the Royal Military Police—the judge criticised those investigations as ““inadequate””—to the members of the independent Bar. They have a duty, in consultation with the Army Legal Services, to continue to review these matters to see whether a case has properly been brought to court. I am not in a position to reach a conclusion in this case, but the noble and learned Lord is and it would be very interesting to hear what he has to say. I want to add one further point which causes me some concern in this area. I noticed in the latest annual report from the Director of Public Prosecutions that there now seem to be two tests for the Code for Crown Prosecutors: the full test and what is called the ““reasonable suspicion”” test. The Attorney-General may be able to say a word about that in his response to the debate. My reading of the test of reasonable suspicion is that it is not clear how it operates, it is not clear whether it is intended to change the law in any way—although it seems to indicate that it is not—and it is not clear that someone really could be charged and held on reasonable suspicion for any longer than the four days that are permitted under the law. Some clarification of this point would be welcome. One of the reasons that it would be welcome in the context of this debate is that the way in which prosecutors prosecute depends very much on the signal sent out from the top. The Attorney-General is the top and perhaps he could look at the signal which it seems is being sent out in this area.