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Armed Forces Bill

I do like this place. I think that I have been quite clear with the noble Lord, Lord Kingsland, on what I believe is the position. I shall say one more thing. The decision on whether prosecutions take place is not a matter for the Government. Ultimately it is a decision for the Attorney-General as the senior civilian authority. If the noble Lord, Lord Kingsland, of whose forensics I am very well aware, has somehow trapped my noble friend, that will not prevent the responsibilities that I have constitutionally being exercised. I am going to move on. Why do I not accept the route that the noble Lord, Lord Campbell, has proposed? It is for the reasons given by the noble and learned Lord, Lord Mayhew, and the first reason but not the second reason given by the noble Lord, Lord Kingsland. The background is that there are many hundreds of cases each year in which the UK military and civilian police prosecuting authorities decide whether offences committed by UK servicemen in this country should be tried in military or civilian courts. In those cases, as the noble Lord, Lord Thomas, said, they decide without any apparent difficulty guidance set out in Queen's regulations. The noble Lord, Lord Thomas, asked whose decision was final. I believe that that was clearly stated by my noble friend Lord Drayson when he correctly stated on Amendment No. 59A that ultimately the civilian authorities have the final say. If there is a disagreement between the prosecuting authorities, ultimately that would mean as the House of Lords has said a decision by the Attorney-General as the senior civilian authority. So, ultimately the matter is for the Attorney-General. So, too, in overseas cases where the United Kingdom civilian courts and the courts martial have concurrent jurisdiction. That is—I disagree with the noble Lord, Lord Kingsland, as he knows—under the constitutional responsibility for the enforcement of the law recognised in the case of Bastow by the House of Lords and as part of my superintendence as a prosecuting authority. It is not in the Bill; it is part of our constitutional arrangements. Judges have a crucial role in safeguarding against any abuse of the court process. You can make an application for an abuse to stop a case on the grounds of abuse. Equally you can apply to a court which is trying a case to say that there is no evidence to support it and no case to answer. Both of those applications were made to Mrs Justice Hallett. The first problem in the amendment of the noble Lord, Lord Campbell, is that it asks the judge to do what I would respectfully say is making a prosecuting decision. He is asked to consider two questions: is there a realistic prospect of conviction; and is it in the public interest to go to a particular place? That is exactly the decision that the prosecutor has to make. Not only does that undermine the constitutional position of the Attorney-General, as the noble and learned Lord, Lord Mayhew, said, it also undermines the constitutional position of the judges. Some of the cases are set out in a letter sent by the noble Lord, Lord Drayson, to the noble Lord, Lord Campbell. I shall read only one reference by Lord Dilhorne, a very distinguished judge and former Law Officer and Lord Chancellor, who said: "““A judge must keep out of the arena. He should not have or appear to have any responsibility for the institution of a prosecution. The functions of prosecutors and of judges must not be blurred. If a judge has power to decline to hear a case because he does not think it should be brought, then it soon may be thought that the cases he allows to proceed are cases brought with his consent or approval””." What would happen if a serviceman was being prosecuted in the civilian court because a judge said it was right to do so? Is there not a risk that the jury will think, ““Well the judge thinks this is a good case””. Would not the serviceman in those circumstances think that he was at risk of not getting a fair trial? So I have that objection as well. I come to the one point where I recognise the point made by the noble Lord, Lord Campbell, and others. Looking at the future, does it make sense that in circumstances where a serviceman may be prosecuted in a civilian court and might expect if he is to be prosecuted that it will only be at court martial, he should have some notice of that and an opportunity to make some representations? I see the force of that. I would not want to take it too far for several reasons. I would not want to see great delay, formality or satellite litigation because delay of that sort only delays it from the point of view of the serviceman. Sometimes one would not know who all the potential servicemen are. It happens sometimes that there is a case that once it starts to be investigated by the civilian or military authorities, other soldiers or servicemen come into the picture. I would not want to stop and start, but I am happy to assure the House that if cases in the future are brought to me in the circumstances referred to in the noble Lord’s amendment—active service operational circumstances overseas and the possibility of a civilian proceeding—I will seek to ensure that the views of the serviceman or servicemen who are known at that stage as defendants are made known to me. They will have the opportunity of making written representations as to the venue. I do not expect it to take long. I do not expect it to result in complicated legal proceedings. But I hope that the noble Lord will see that by that assurance I have given to this House, it meets the final part of what the noble Lord has been seeking to obtain. The noble Lord tabled this probing amendment to obtain assurances for the future. I hope that he will take the view that he has succeeded substantially, though not perhaps by the route that he had in mind, and that he will be able to withdraw the amendment happily.