---

Army: Advice of Attorney-General

My Lords, I, too, thank my noble friend Lord Campbell for giving us the opportunity to discuss an element of the Attorney-General’s responsibilities upon which, until recently, no light seems to have shone. I refer, of course, to his superintendence of the activities of the Army Prosecuting Authority and what must in reality be his decisive influence upon the question of whether a soldier should be tried by court martial or in the civilian courts in respect of a serious offence such as murder. It is plainly a topical matter because thousands of British troops are deployed already in Iraq, in very dangerous and testing circumstances, and many more are about to go to Afghanistan. It is important, too, because they need—and certainly deserve—clarity, not only as to the law within which they have to operate but also as to the fairness of any proceedings which they may find themselves facing. That requirement of fairness of proceedings certainly extends, I believe, to the character of the tribunal which will try them. The Armed Forces of the Crown—uniquely, as far as I am aware—have been given by Parliament, over many years, their own system of criminal justice, which includes sanctions potentially providing for extremely severe penalties in a proper case. It is not any anomalous quirk of history that has provided for this arrangement. It exists because Parliament has recognised the unique severity of the dangers that soldiers—and it can be true nowadays of all servicemen and servicewomen—may be called upon to face, a point eloquently and authoritatively made already today by the noble and gallant Lord, Lord Bramall. They have to take instantaneous decisions, as has often been recognised in this House, on the strength or weakness of which they may themselves die. That is why a system of martial courts, staffed by martially experienced people, has been provided which, professionally directed as to the law, can bring to these trials a personal understanding of the realities of conflict that cannot be expected from a civilian court. I think, for my part, that soldiers have found this reassuring, and certainly the noble and gallant Lord, Lord Bramall, and others with a wealth of military experience have confirmed that on previous occasions. I have absolutely no problem at all with the arrangement whereby the Attorney-General superintends the Army Prosecuting Authority, who also serves as the Director of Army Legal Services. After all, for more than 100 years, the Director of Public Prosecutions has by statute been superintended by the Attorney-General. So far as I am aware, the word ““superintend”” has never been construed—and very properly so, because it means what it says. This has given rise to a thoroughly commonsense relationship between the Law Officer whose duty it is to answer to Parliament for prosecuting policy, as the noble Lord, Lord Truscott, said, and the professional head of the Crown Prosecution Service, who is the decision taker. However, those two—the Attorney-General and the DPP—have never had to decide as to which of two quite different criminal jurisdictions should be selected in a particular case, and yet in the now notorious case of Trooper Williams this was the critical choice that the Attorney-General made. This is clear from the documents that my noble friend Lord Campbell has brought forth. It is a decision that has caused much concern. That seems to me to be the crucial decision where you have a jurisdiction to choose or where you express a decisive preference for one jurisdiction or another. The Williams case displayed the significance of that choice very vividly. In that case the Attorney-General plainly advised a further trial—this time in the civilian courts—of charges which had already been dismissed by two commanding officers. We have heard all this before and I have no intention or need to reopen the Williams case today. It is enough to say that the ultimate decision to drop the case—virtually at the door of the court—was received with a great deal of satisfaction by a great many people who had been worried by it. It took six months for Williams to be told that the matter was being reconsidered after dismissal of the charges, and another three months before he was told that he was going to face trial again, but it was very noticeable that at no stage during that deliberative process—which I am sure was anxious and conscientious, and which certainly cannot be described as hurried—was Williams allowed to participate at all. Most of the time he was not even told it was happening. Given the potential consequences for Williams of the decision to retry him, does the Attorney-General regard that procedure as unfair? Does it not stand in stark contrast to his own jurisdiction as Attorney-General regarding a sentence that he considers unduly lenient? He can seek the leave of the Court of Appeal to refer it for review. When I introduced that excellent reform—if I may modestly so describe it—in 1988, I do not think that I would ever have considered denying the defendant any right at all to be heard, and I would not have got the proposal through Parliament had I done so. In fact, the defendant has to be told by the registrar of the Court of Appeal of his right, on leave from the court, to present any argument to the court, in person or by counsel, even on the hearing of the Attorney-General’s application, not to mention on any resulting hearing of the reference itself. That is why my noble friend is so right to make the case today for a change. He does so, and so do I, without making the slightest imputation upon the integrity or the propriety of any decision taken by the Attorney-General on personal grounds. I well recall that the Attorney-General has as his daily fare one anxious decision after another as well as having to face the attentions of extremely versatile critics. For my part, I would limit the scope for change to cases where the proceedings in question are to be taken against a soldier in respect of his conduct when in a conflict situation. If it is proposed that his case should be tried not by court martial but by a civilian court, I suggest, with my noble friend, that there should be a hearing before a High Court judge at the instance of the Attorney, with the defendant entitled to participate, or at least to seek the leave of the court to participate. The scope of the hearing should be wider than in an application for judicial review, and the burden ought to be on the Attorney to show why, notwithstanding the context of a conflict situation, it would nevertheless be in the interests of justice, including justice to the soldier, for the case to go to a civilian court on the basis of the evidence available. The application would be that of the Attorney; the decision would be that of the court. Whichever way it went, I think that much reasonable anxiety would be allayed in the hearts and minds of those—and their families—who, in the service of the Crown, are sometimes called upon to put their lives in mortal danger.