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Armed Forces Bill

My Lords, I declare an interest as having appeared in a number of courts martial, including some that have been referred to. That inhibits me from commenting on ongoing cases, but it allows me to speak with some practical knowledge of the way in which the current system works and with some ideas as to how the Bill could be improved. We on these Benches welcome the bringing together of all three services in a common code and with common procedure. That should ensure consistency and fairness across the board. In considering consistency, we welcome the appointment of a Director of Service Prosecutions, who should be independent of the chain of command, but, we believe, must necessarily have military experience, so that he can take decisions within the military context. We also welcome the creation of the court martial as an institution. Until now, courts martial have been ad hoc tribunals, set up for individual cases. Now, however, with the building of new court centres at Bulford, Catterick and Colchester, and with the professionalism that is involved in the courts administration officer who already exists and who, no doubt, will be appointed under this Bill, we hope that the terrible delays that have occurred will significantly be reduced. Clauses 55 to 62 refer to time limits for charging within six months of a person leaving the services or ceasing to be subject to service law, but there is still no time limit for the commencement of trial. I was encouraged to hear the noble Lord, Lord Astor, say that his party intends to table an amendment that will set a limit within which proceedings should be brought and the trial commenced. Similarly, we welcome the Service Civilian Court, although I shall return to the matter of civilians who are subject to military law. I pay tribute to the bravery and professionalism of our armed services in all fields of conflict. Carrying out the policies of the Government of the day is a dangerous occupation. It is not abstract or theoretical that the people who carry out those policies do so at the risk of their own lives and well-being. It is absolutely important that, when they do so, they can be confident that they will be treated fairly, both in matters of discipline and in the trial of any alleged criminal conduct. The first essential is that recruits are treated properly. There should be no ill-treatment, harassment, bullying or discrimination. Not only is that harmful to the soldiers themselves, but it inhibits proper recruitment to the armed services. We welcome the proposals for the redress of individual grievances as far as they go. Initially, the Government intended that the service complaint panel should include an independent member and that the complaints process should be reviewed annually and publicly by the independent external reviewer. However, the Government have responded rather disappointingly to the Deepcut review and to representations made in another place by proposing not that there should be an ombudsman, as Nicholas Blake advised, but that the external reviewer’s role should be extended in a limited way. That is nothing like the ombudsman role envisaged by Blake. The Deepcut review suggested that the powers of the ombudsman should include the ability to initiate prosecutorial proceedings, if the ombudsman felt that a complaint should be prosecuted. By contrast, the Government’s proposals announced yesterday suggested that the powers of the ombudsman—or what they call a service complaints commissioner—should be restricted to receiving a complaint, referring that complaint to a higher authority and remaining informed of the outcome of the complaint. That is a power of recommendation, not a power of taking action. We think that this should be looked at when the Government bring forward their proposals in an amendment, which they are preparing. I also follow the noble Lord, Lord Astor, in talking about the rules of engagement. The trained soldier needs to know the framework within which he operates. The rules of engagement for the invasion of Iraq were to seek and destroy the enemy either by killing or neutralising its forces. That is what the invading forces were trained to do; that is what they were up for. However, no fresh rules of engagement were issued for many months after the conflict was over. That matter emerged in the paratroopers’ proceedings last September and October in Colchester. British forces were judged as though they were policemen, subject to all the restraints and training of peacekeepers that one might get in the domestic situation. It is vital that in whatever field our forces operate the rules of engagement are clear and precise and are conveyed to those obliged to perform their duties within those rules. That should be taken into account in decisions to investigate alleged criminal offences and in decisions to prosecute. For the purposes of investigation, let there be no more situations arising where our troops are subject to investigations but where the investigators do not have adequate resources—in money or manpower—to carry out the sort of thorough investigation that the seriousness of the allegations demands. Turning to the Bill and the ““First Group of Parts””, no one could object to the discipline offences listed in Clauses 1 to 41 being tried by the court martial. These certainly envisage military matters which are undoubtedly within the experience of the members of the panel: assisting the enemy, mutiny, desertion, insubordination and so on. What is objectionable is the inclusion under the ““Discipline”” general heading of ““Criminal conduct””, under Clause 42, which gives jurisdiction to the court martial over any offence punishable under the law of England and Wales, including the infliction of punishment. Any offence in the criminal calendar can be brought as a disciplinary matter under Clause 42. This is not a matter of discipline. A person subject to military law ought not to be tried and punished for murder, for example, as a matter of forces discipline. This has practical implications. Clause 19, which concerns conduct prejudicial to good order and discipline and covers a wide range of behaviour, Clause 20 on misconduct through drink and drugs, Clause 21 on fighting or threatening behaviour and Clause 23 on disgraceful conduct of a cruel or indecent kind are all matters that a military court can properly deal with as disciplinary. So why is it necessary to include the entire corpus of the criminal law within the jurisdiction of the court martial? Another matter that causes me concern, as it has for many years, is the way in which civilians who are subject to service discipline may be tried by court martial. For example, any person who is a member of the family of a serving soldier in a base overseas is subject to service discipline. I recall the case of Martin, which eventually ended up before the Appeal Committee of this House. It was a case in which a 17 year-old boy was charged with murder in Germany. Although he was incarcerated pending the trial in this country, and although his father had left the forces and he had absolutely no connection with the Army at the time, he was flown back to Germany to be tried, at the age of 19, by a court martial of officers with, I think, two civilians from the Civil Service also taking part in the hearing. In his judgment, the noble and learned Lord, Lord Slynn of Hadley, said:"““As a matter of first impression it seemed to me disturbing and indeed wrong in principle that a 19-year-old civilian, albeit the son of a serving soldier at the time of the murder he was alleged to have committed in Germany, who had with his father returned to England more than a year before trial, should be sent back to Germany for trial by court-martial and thereby be deprived of the right, or at the least of the opportunity, of trial by jury””." The Appellate Committee unanimously held that, if Parliament had said that a 17 year-old boy was subject to service discipline and could be tried for murder in Germany, it could not be described as an abuse of process. But the noble and learned Lord, Lord Slynn of Hadley, said that it was disturbing and wrong in principle, and the noble and learned Lord, Lord Hope, said that it was quite inappropriate. It is matters of that sort that I shall endeavour to discuss with your Lordships in Committee. There are other matters of procedural drawbacks that I think we will also have to discuss. With regard to the composition of the court, I disagree with the suggestion that a soldier should be tried by Army officers and warrant officers and not by a mixed pool. It seems to me that if we are bringing the services together and creating one single body—the court martial—it is appropriate that the panel should come from all the services. That would help with consistency and perhaps it would help to break down the tensions between the various services if a person were tried in that way. I appreciate that there are differences between the services, but a panel of officers and warrant officers should be able to deal with the matter without prejudices of that sort. Another matter that I think we must consider is the number of members of the tribunal—whether it should be three, five or, in serious cases, as now, seven. Again, one has to compare that with the jury in the Crown Court in this country, which has 12 members. If the provisions in military law were the same as those in civilian law, the majority verdicts would be declared, open and transparent. But, as most of your Lordships will know, the court martial can decide by a majority—which, with seven people, may be four to three, or, if there are five, three to two—without ever revealing that it is a majority decision. So, if a civilian charge as serious as murder should remain with the court martial, a person may be found guilty of that crime when the tribunal is split four to three and he will never know about it. As the Judge Advocate General suggested to the committee in another place, it is appropriate that we look again at majority verdicts; they should be declared and it should be possible to have only one or, at the very most, two dissentients before a verdict of guilty is brought in. Another matter is sentencing. A jury does not sentence in the Crown Court; it plays no part in it. However, the responsibility for sentencing in a court martial rests not with a judge but with the tribunal. The judge plays a part; he has an equal vote with the members of the panel, and a casting vote if they are equally split. However, we are dealing with a new world. The Bill introduces community sentences. Unlike for magistrates, there is no training in sentencing matters for court martial panel members. I shall suggest to your Lordships that the Bill be amended so that sentencing should be by judge alone, or at least with an assessor. The service input into sentencing is fine when you are dealing with disciplinary matters but, if you are going to deal with serious criminal conduct through the court martial system, the judge should decide the appropriate sentence. This is a large Bill and there is a long way to go. I hope that, at the end of it, we will produce for military people a system of justice that they deserve for the great service that they afford to us all.