---

Armed Forces Bill

Since the 18th century our law has given courts martial jurisdiction over civilian dependants and employees but, until the Army Act 1955, this applied only if our troops were on active service. Military law was extended in 1955 to cover civilians in peace time accompanying soldiers in other countries, to bring it into line with what was supposed to be the position in the United States. But in 1960 the United States Supreme Court ruled that it was unconstitutional for United States civilian employees and dependants to be subject to courts martial in peace time. One of the reasons given by the Supreme Court in 1960 was that court martial procedure does not allow for trial by jury. I have immediate sympathy for AmendmentNo. 60, proposed by the noble Lord, Lord Thomas, which concerns under-18s being exempt from the jurisdiction of a court martial. He has referred to the case in which he appeared as defence counsel. I am not sure that he gave the name of that case, R v Martin in 1997, in which a 17 year-old, the son of a British corporal serving in Germany, was tried by court martial for murder in Germany. As the noble Lord said, that case came before the Appellate Committee of this House. It is worth pointing out that the noble and learned Lord, Lord Slynn of Hadley, who is not present, expressed concern at depriving the young man of trial by jury, although he accepted that there would have been ““great difficulty”” in having the evidence of some—at any rate, the German witnesses—brought before a civilian court in England. It so happens that in 1966, in another case, the wife of a British soldier stationed in Germany was tried by court martial for the murder of her husband and sentenced to life imprisonment—later it was reduced twice to five years’ imprisonment. The defendant was just over 18 years old. The concerns expressed by the noble and learned Lord, Lord Slynn, in R v Martin were as relevant in the case of Mrs Clark as they were in that of the under 18-year-old, particularly the absence of a trial by jury and allowing a simple majority verdict, which is all that is necessary to establish guilt in a court martial. When the United States condemned on constitutional grounds the court martial trial of civilians in peace time, Justice Black in Washington said that when a Government reach out to punish a citizen abroad, "““the shield which the Bill of Rights and other parts of the constitution provide to protect his life and liberty should not be stripped away because he happens to be in another land. This is not a novel concept. To the contrary it is as old as government. It was recognised long before Paul invoked the right as a Roman citizen to be tried in strict accordance with Roman law””." It is evident that I support the amendment proposed by the noble Lord, Lord Thomas, but I would really like it to go further. Like the noble Lord, I question the clauses that immediately follow in this debate. I question the jurisdiction of courts martial over all civilians, whether under or over 18, except when accompanying troops in wartime on active service. Of course I accept that when troops and accompanying civilians are based in peacetime in another country they are prima facie subject to the jurisdiction of the local courts of the country in which they are serving or living. The foreign country may be willing, under an agreement with this country, to give up some of its sovereign rights and, as in the NATO status of forces agreement, grant some measure of jurisdiction to the military authorities of the sending state. In principle, the foreign country should equally be willing to grant jurisdiction to the sending state’s civil authorities, sitting as appropriate in the state where witnesses may be more easily and readily available. In such a situation, a civilian court could be adjusted in its composition on the lines that the noble Lord has suggested, so that if the defendant is under 18 it would have an appropriate panel, as with juvenile courts in this country. I support the noble Lord.