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Armed Forces Bill

moved AmendmentNo. 31: Page 6, line 12, leave out ““or disrespectful”” The noble Lord said: My first task is to declare an interest as the recently appointed president of the Association of Military Advocates and to indicate that I am currently engaged in a court martial and therefore have some interest in this matter. Clause 11(2) sets out an offence in these terms: "““A person subject to service law commits an offence if … his behaviour towards a superior officer (““B””) is threatening or disrespectful””." The amendment would remove ““or disrespectful””. The basis of my argument is that threatening a superior officer and being disrespectful to a superior officer are two entirely disparate situations. The huge distinction between making a threat and being disrespectful is recognised by subsection (4), which provides for a maximum of 10 years’ imprisonment for the former offence but only two years for the latter one. My objection to the word ““disrespectful”” is that it is so wide that it could cover anything that an officer believes to be disrespectful to him—dumb insolence, walking away, muttering under the breath and so on. It lacks clarity and could lead to differing decisions depending upon the make-up of the court martial court. Indeed, the Joint Committee on Human Rights was concerned to seek from the noble Lord, Lord Drayson, a definition of ““disrespectful””. Another problem is that there is no statutory defence. It is very interesting to compare this provision with Article 89 of the American Universal Code of Military Justice, which creates a similar offence, but separately from that of being threatening. The code defines the offence in this way: "““Any person subject to this chapter who behaves with disrespect towards his superior commissioned officer shall be punished as a court-martial may direct””." But, unlike this proposed legislation, it contains a definition of ““disrespect””: "““Disrespectful behavior is that which detracts from the respect due the authority and person of a superior commissioned officer. It may consist of acts or language, however expressed, and it is immaterial whether they refer to the superior as an officer or as a private individual. Disrespect by words may be conveyed by abusive epithets or other contemptuous or denunciatory language. Truth is no defense. Disrespect by acts includes neglecting the customary salute or showing a marked disdain, indifference, insolence, impertinence, undue familiarity or other rudeness in the presence of the superior officer””." Your Lordships may appreciate my comment that ““disrespectful”” is an extremely broad idea. There is in the American code, however, a special defence: "““A superior commissioned officer whose conduct in relation to the accused under the circumstances departs substantially from the required standards appropriate to that officer’s rank or position under similar circumstances loses the protection of this article. That accused may not be convicted of being disrespectful to the officer who has so lost the entitlement to respect protected by Article 89””." Your Lordships may feel that that is a very sensible, special statutory defence. Furthermore, unlike the two-year period of imprisonment that is the maximum for the offences suggested in the Bill, the maximum punishment in America is a bad-conduct discharge, forfeiture of all pay and allowances and confinement for one year. Disrespect is a concept that ought not to be linked as a criminal offence with threatening behaviour, which of course is very serious. I cannot think of any instance of being disrespectful which would not be covered by the familiar offence repeated in Clause 19 of conduct, "““prejudicial to good order and discipline””" which, incidentally, carries exactly the same penalty. But case law on conduct prejudicial to good order and discipline allows a defendant to argue that he spoke the truth or that his offending words or gestures were not prejudicial to good order and discipline. I am indebted to Mr Gilbert Blades, a very experienced solicitor-advocate in this field, for his recollection of a case in which a sergeant called the regimental sergeant-major’s argument at a sergeants’ mess a load of ““unparliamentary language””. I will not give your Lordships the precise terms. The sergeant was charged with conduct prejudicial to good order and discipline, and the tribunal found that the regimental sergeant-major’s argument had indeed been a load of unparliamentary language. The purpose of the amendment is to separate the offence of being ““disrespectful””; at the very least it should be clearly defined, and a special defence similar to that set out in the United States statute should be incorporated in it. But since that would take some drafting, I will leave it for a later stage of the Bill. I beg to move.