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Army: Advice of Attorney-General

My Lords, I express my gratitude to the noble Lord, Lord Campbell of Alloway, and pay tribute to his distinguished military and legal career, which makes him uniquely qualified to raise these matters. I also declare an interest as someone who has appeared in many courts martial and court martial appeals. The relationship between the Attorney-General and the service prosecuting authorities is significantly different from his relationship with the Crown Prosecution Service. My noble friend Lord Garden has already referred to the evidence of Major-General Howell, the Army Director of Prosecutions, in giving evidence to the Armed Forces Bill committee. He said that in his view the Attorney-General had a right to be consulted on major cases, but he added that,"““we have to accept that the final decision on whether to Court Martial someone ultimately is our decision; it is not the Attorney’s or anybody else’s . . . we are not like the CPS in that sense. The point is that the decision is ours””." That was a firm declaration of independence.       The noble and learned Lord the Attorney-General in the last annual review that he published put it this way, saying:"““The Law Officers have a general oversight of the Service Prosecuting Authorities and assist with advice, such as, in some cases, determining whether a matter should go before a military or civil tribunal. They receive an annual report on the activities of each Service Prosecuting Authority””." So it is a ““general oversight””. That is very different from the relationship to the Crown Prosecution Service. In his introduction to that annual review, the noble and learned Lord the Attorney-General said that he appoints and superintends the Director of Public Prosecutions. Although the noble and learned Lord, Lord Mayhew of Twysden, said that no one had ever sought to define ““superintendence””, the Attorney-General explained the concept, saying:"““This means that the Attorney General (i) has ultimately the ability to give directions to the DPP in relation to the overall conduct of the CPS and its prosecution policy and (ii) is answerable in Parliament for decisions or actions that he or the DPP takes on prosecution matters and for the policy that is applied by the CPS in the handling of particular cases””." He goes on to say that successive,"““holders of both offices have accepted that this means that in relation to individual prosecuting decisions, in the event of disagreement between the Attorney General and the DPP, the Attorney General’s view would prevail””." The Attorney-General is therefore ultimately responsible for CPS decisions, but not for prosecution decisions taken by the service prosecuting authorities. No doubt he is asked for advice, but there does not appear to be any formal mechanism. Indeed, it was the evidence of the heads of each of the service prosecuting authorities that the Attorney-General might well learn of cases not from them but from newspapers or letters from Members of Parliament. The noble Lord, Lord Corbett, pointed out that they were also anxious to emphasise to the committee that no suggestion was ever made to them either by the noble and learned Lord the Attorney-General or by the leading counsel, whom they consulted, that they should take decisions for political reasons. I agree with the noble Lord, Lord Corbett, that it is right and proper that decisions to prosecute should not be influenced in any way by party-political considerations. However, they should most certainly be influenced by considerations of what is or is not the broad public interest, and I do not consider that the heads of the service prosecuting authorities are the appropriate people to determine what the broad public interest is. Nor is it right that the Attorney-General, who does not bear responsibility with decisions to prosecute in a particular case by way of court martial should be roasted in Parliament later. I do not know what influence the noble and learned Lord the Attorney-General has with the Army Prosecuting Authority; I am sure that it is very considerable. However, in one court martial, now completed, the leading counsel for the prosecution was formally approached by the defence with the advice that he should seek the advice of the Law Officers as to whether to continue the prosecution on public interest grounds. I really do not know what happened; but if the Army Prosecuting Authority maintained its independence and did not consult the noble and learned Lord the Attorney-General, I am sure that the consequences were very unwelcome to that service, and to the Attorney-General, who had to defend and stand the criticism in this House. There is a broad public interest involved. In a recent case in the United States, a Chief Warrant Officer Welshofer was convicted at a general court martial of negligent homicide and dereliction of duty for his part in the death of an Iraqi general during an interrogation that he and others were carrying out. His counsel, a Mr Frank Spinner, made this important point, which has been echoed by your Lordships today. He said that when men and women are sent out to a hostile country to fight and to put their lives on the line, the government must give them clear rules and back them up. He said:"““They must be given enough room to make mistakes without treating them like criminals””." Unlike many jobs or professions, the trade of the soldier is violent, and if he makes a mistake he is likely to cause injury or death. It is difficult to draw the line, as the noble and gallant Lord, Lord Bramall, said in his speech, about what should be punished and what should not. Mention has been made of the rules of engagement. One of the problems in the immediate aftermath of Operation Telic, the invasion of Iraq, was that the rules of engagement did not change with the cessation of hostilities. Soldiers trained aggressively to attack and if necessarily kill the enemy—they were given rules of engagement to that effect—found suddenly that they were required to act as an armed police force. However—this is the important point—they were given no fresh instructions, fresh training or fresh rules of engagement for many months. It most certainly was not a Northern Ireland situation of assisting the civilian police, with all the constraints that involved. Iraq was and is hostile and dangerous country, and our soldiers deserve to be spared the task of creating their own rules of engagement for the unexpected situation that arose there, whereby, instead of being greeted like heroes on the cessation of the fighting phase they were met with a bullet and a bomb. The absence of clear rules makes it impossible for the soldier to determine which orders he received were lawful, which he must obey, and which orders are unlawful, which he should disobey to avoid criminal liability—because ““I was only obeying orders”” is not a defence. He must know where he stands. Both my noble friend Lord Garden and the noble Lord, Lord Moonie, have made that point. It is critical that military commanders, and indeed the political leaders behind them, lay down and communicate to the troops clear standards of behaviour towards the civilian population, prisoners of war and, in particular, detainees. Fortunately, the vast majority of our troops are disciplined and professional, but from time to time their activities give legitimate cause for concern and prosecutions are considered. The problem as I see it is that the heads of the service prosecuting authorities may be too close to the action. They may come down heavily on the squaddie without examining what is wrong in the chain of command. In the Evans case—the example to which the noble and learned Lord, Lord Lyell, referred—the prosecution did not in my belief obtain, let alone consider, the rules of engagement in operation at the time as prepared by the High Command until asked by the defence to produce them weeks into the trial. I am sure from the prosecution opening that the prosecutors believed some sort of Northern Ireland rules of engagement had superseded the rules for invasion and fighting of the war, when that had not happened. A second problem is that service prosecutors will prosecute a serviceman for criminal offences from time to time in the interests of military discipline, in circumstances where the Crown Prosecution Service would not. That was the stance accepted and relied on by the Crown in the case of Boyd, Hastie and Spear before the Judicial Committee of this House in 2001, a point made by the noble Lord, Lord Moonie. While I fully support the creation of a director of service prosecutions under Section 355 of the Armed Forces Bill, I am unhappy that the Bill does not strengthen the superintendence of the Attorney-General. It is left to some vague convention that he be consulted in serious cases. I would go further. There are serious political issues with respect to the activities of British forces abroad, and there is a wide public interest. In my view the Attorney-General should have explicit ultimate responsibility for prosecution decisions, as he does with the CPS, and should be answerable directly for those decisions in Parliament. I should be interested to know if the noble and learned Lord would welcome that responsibility. Ultimately it is important that the public have confidence in the system, and that those who serve in the forces have confidence that, if they are in trouble, decisions to prosecute for serious crime will be made independently and fairly.