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Armed Forces Bill

moved AmendmentNo. 117: Page 75, line 12, leave out ““a prescribed number of”” and insert ““five or seven”” The noble Lord said: This part of the Bill deals with trial by the court martial and Clause 154 deals with its constitution. We are seeking drastically to alter the way in which the court martial panel is chosen and to prescribe the number of people on it. The first amendment in the group is to subsection (1)(b), whereby the court martial would consist of a judge advocate and ““five or seven”” other persons, of whom, "““a prescribed number must be officers or warrant officers””." Then, by amendment, we seek that the rest may be drawn from all ranks who are qualified for membership and not ineligible under the clause. The amendment to subsection (1)(b)(ii) is to make provision in the court martial rules that the persons specified in subsection (1)(b) shall be drawn from each and every branch of the armed services. Then, under subsection (4), we seek that the members of the court are not to be specified by or on behalf of the court administration officer but selected by a ballot from a pool constituted of people eligible to sit as members of the court martial. In the same group, we go on to suggest a new clause after Clause 156 specifying that to qualify for membership of the court martial a person should simply be a serving member of the Armed Forces and subject to service law. It excludes only people who are, for example, members of the court service, members of the Military Police or those who have been involved in an investigation. That important alteration would open up the court martial across all ranks and not confine it, as at present, simply to officers, usually a single warrant officer. We also seek to include with these amendments the question of reports. Amendment No. 129 states: "““No report of any description shall be made referring, whether favourably or unfavourably, to the decisions of any member of the court when sitting in the Court Martial””." Members of the Committee will recall that I referred earlier to that as being an answer to the Morris point, where the European court had held that the court martial system, which enabled junior officers to be reported for the purposes of files, might affect the future career of those officers according to the way in which they conducted themselves in the court martial. Finally, we deal with the question of unanimity or, alternatively, majority verdicts, but in a very different way from the present type of majority verdict, which is a simple majority. Therefore, this is a complete recasting of the composition of the panel and, in many ways, it mirrors the evidence given by the Judge Advocate General, Judge Blackett, to the Select Committee when he was asked questions about it. Members of the Committee will recall that I have already referred to the fact that he wishes the court martial system to approximate as closely as possible to the civil Crown Court procedure in all the circumstances. I shall deal with these points in a number of ways. I turn, first, to the ability to have on the court martial members of all ranks. This would be quite different from the present situation. To my mind, one objection to the court martial system is precisely that the private soldier who appears before the court martial is appearing in front of officers or a very senior warrant officer, and that is an intimidating experience on any view. It does not begin to approximate the Magna Carta requirement of a trial by one's peers. The only way in which it can be said to comply with it is that Magna Carta requires a trial by one's peers or according to the law of the land. It is on that second part that, in argument in the House of Lords, the Government relied in the case of Boyd and others. That this is not such an amazing departure can be evidenced by the Universal Code of Military Justice, which was adopted in America in about 1952-53, when it was determined that the American system of courts martial was not compliant with the United States constitution. I am sure that it has been amended from time to time—certainly, an amendment is now part of Article 25. Your Lordships will forgive me if I read it because it illustrates how another common law country with a great tradition and all the safeguards of due process, which are contained in the constitution, has interpreted this problem. Article 25(c) states: "““Any enlisted member of an armed force on active duty who is not a member of the same unit as the accused is eligible to serve on general and special courts-martial for the trial of any enlisted member of an armed force who may lawfully be brought before such courts for trial, but he shall serve as a member of a court only if, before the conclusion of the session called by the military judge … prior to the trial or, in the absence of such a session, before the court is assembled for the trial of the accused, the accused personally has requested orally on the record or in writing that enlisted members serve on it””." The first requirement in the American code is that there is a request by the defendant. It continues: "““After such a request, the accused may not be tried by a general or special courts-martial the membership of which does not include enlisted members in a number comprising at least one-third of the total membership of the court, unless eligible enlisted members cannot be obtained””." Once the request has been made, the second requirement in the American code is that one third, at least, be enlisted men. The code continues: "““When it can be avoided, no member of an armed force may be tried by a court-martial any member of which is junior to him in rank or grade””." That provision exists in this country. Although the defendant may require enlisted men if he is of the rank of sergeant or whatever, he cannot have people of lesser rank dealing with it. It continues: "““When convening a court-martial, the convening authority shall detail as member thereof such members of the armed forces as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service and judicial temperament. No member of an armed force is eligible to serve as a member of a general or special court-martial when he is the accuser or a witness of the prosecution or investigating officer””." The authority that convenes has regard to the particular people who are part of the pool from which the court martial is chosen: a request from the defendant, one third of the membership, nobody of a rank below that of the defendant, people chosen for their experience, and so on. Those are the requirements in America. I see no reason why a similar system cannot be properly introduced in this country. One of the problems of the system is that there are class divisions within it. That is contrary to the temper of the United Kingdom in this day and age. I turn from that proposition to the one that the court martial, while not having to be unanimous, must by a significant majority find guilt before guilt can be established. In our amendment, where there are no fewer than seven members of the court, five of them must agree on the finding, and where there are five members of the court, four of them must agree. Where there is a non-unanimous finding of guilt, the president has to state in open court the number who agreed and the number who dissented from that finding. That is the equivalent of the majority verdict that exists in this country, and no doubt there would be directions by the judge advocate to the panel along the lines of the directions we are familiar with in the Crown Court. I refer again to the American experience, just to illustrate that these are not outrageous suggestions. The requirements in Article 52 of their code are that no person may be convicted of an offence for which the death penalty is made mandatory, except by unanimous verdict; no person can be convicted of any other offence unless two-thirds agree to that conviction; and no person is sentenced to life imprisonment or to confinement for more than 10 years unless three-fourths of the panel agree to those verdicts. The system in the States is much more conscious of due process. When they have majority verdicts, it is not just the simple majority that exists in this country. The argument that is always put for the other side is that magistrates decide by a majority, as may the Court of Appeal. In those circumstances, magistrates and judges are trained and experienced in court proceedings. When you are dealing with a panel of a court martial you are dealing with people who are not trained or experienced. They are much more akin to the juries we are familiar with. It is fairer and more within the spirit of the European Convention on Human Rights that we adopt majority verdict along the lines I have suggested in this amendment. It may be a considerable change from the present, but, supported by the chief judge of the system, I feel I am in a position to ask your Lordships to consent to it. I beg to move.