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Armed Forces Bill

moved AmendmentNo. 32: After Clause 49, insert the following new clause- Compliance with orders and rules of engagement (1) A serviceman participating in armed combat or peacekeeping who has opened fire may not be convicted of murder, manslaughter or breach of international convention unless the intention not to comply with orders and rules of engagement is established beyond all reasonable doubt. (2) For the avoidance of doubt, this presumption in favour of the serviceman includes mistake made in good faith.”” The noble Lord said: My Lords, in moving Amendment No. 32, which is supported by the noble Lord, Lord Ramsbotham, in its retabled form, I shall speak also to Amendments Nos. 33 and 34 in the group, which are not consistent with the intent of Amendment No. 32 and would inhibit the vital exercise of discretion of commanders in the field, and are not acceptable as conferring statutory force on rules of engagement. To save time the argument that I deploy will be found in the speech of the noble Lord, Lord Drayson, in Committee on 11 October at cols. 296-97 and I have tried to cut my speech down. The intendment of Amendment No. 32 is to provide a defence under a new service law, as spoken to by the noble and gallant Lords at Second Reading, for the armed serviceman on active service who complies or intends to comply with his orders and rules of engagement. This amendment achieves that by a rebuttal of presumption in favour of the serviceman, which assuredly is no absolute defence, as was the proposal in old Amendment No. 61. The rules of engagement as such do not have statutory force. The defence applies to trials for homicide or breach of international convention, either under the civil jurisdiction in exceptional circumstances or by courts martial. This is a probing amendment for your Lordships’ consideration, as spoken to by the noble and gallant Lord, Lord Inge, on Second Reading. This defence is but part of a fair and just regime which recognises the realities of armed combat and peacekeeping and can be trusted by the servicemen. The amendment acknowledges that rules of engagement, if written, are but a framework within which verbal orders and rules of engagement, which often form an amalgam, are given in context with a specific operation, whether on combat or peacekeeping, as spoken to by the noble and gallant Lord, Lord Bramall, on Second Reading, and assented to by my noble and learned friend Lord Mayhew of Twysden, who is in his place. The noble and gallant Lord said: "““Justice cannot be dispensed in a vacuum; it must depend on the circumstances prevailing at the time at the scene of operations and rules of engagement, if established””.—[Official Report, 14/6/06; col. 242.]" The introduction of a new services law was heralded in the evidence of the Judge Advocate General, Judge Blackett, and was assented to by the noble and gallant Lord, Lord Boyce. It was the evidence given to a Select Committee of another place. It was referred to in the speech of the noble Lord, Lord Ramsbotham, on Second Reading at col. 252. It was also assented to by the noble and gallant Lords, Lord Guthrie of Craigiebank and Lord Vincent of Coleshill. I shall cite a small but crucial passage. The amendment is dependent only on the acceptance of a new service law—a military law. In another context, I think that the noble Lord, Lord Drayson, was speaking about that some moments ago. The noble Lord, Lord Ramsbotham, cited Judge Blackett, saying: "““There are cogent reasons for maintaining a unique system of military justice, separate and distinct from the civilian system. These are to . . . support operational effectiveness and morale . . . maintain discipline which is an essential element of command . . . reflect the special and unique nature of the Armed Forces, in which sailors, soldiers and airmen are required to use lethal force to support Government policy, to risk their personal safety, and to be prepared to lay down their lives for their country, and . . . extend the law of England and Wales to personnel serving overseas and outside the jurisdiction of the civilian courts””.—[Official Report, 14/6/06; col. 252.]" That is the basis on which this House is, so to speak, built. I shall cite two short passages from the speech made by the noble Lord, Lord Drayson, which support the principle of the amendment—there being as yet no provision in the Bill that gives effect to such appraisal. He said: "““In response to one of the important points made by the noble Lord, Lord Campbell, about the situation where a soldier ""makes a mistake, it is important for me to reassure the Committee that if a soldier acts in combat on his view of the situation, even if it is wrong, he will not be guilty of a crime. That is a fundamental principle, which we need to keep clearly in focus as we consider this matter””." In the other passage, he stated: "““The noble Lord, Lord Campbell, raises an important point when describing the similarity between orders and the detailed nature of rules of engagement. He has also emphasised the point to which I alluded at the beginning of my response, which is the importance of the intent to do wrong. The noble Lord is right. We have heard on the Floor of this House as we have debated this issue in the past how in combat this may be a split-second decision made in very difficult circumstances. I remember vividly the description that the noble Viscount made””.—[Official Report, 11/10/06; col. 295-96.]" Unfortunately, the noble Viscount is not in his place. Those are the sort of twin pillars. It now comes to give but one example where, had the amendment been in force and this defence available, it would have saved a conviction for murder. I shall take it shortly because it was dealt with at some length in Committee. If this defence had been available to the Scots Guardsmen, Fisher and Wright, they would not have been convicted of murder, as their evidence on oath that they intended to comply with the orders, rules of engagement and training—they were both pretty young, so training was relevant—was wholly accepted by the Army board. It is quite obvious that if they had had that defence open to them, it would have been very unlikely that they would have been disbelieved on their oath. However, their only defence was self-defence—as to fear their murder by coffee jar bomb attack. That was rejected by the trial judge. There was no other defence. As it was a finding of fact, it foreclosed on any appeal to the Court of Appeal or application to the Appellate Committee of this House or to the CCRC to refer the case for reconsideration tothe Court of Appeal. A civil system of law had hit the buffers of its own making. The stain of a conviction for murder is indelible, unless there is fresh evidence. There was none. I beg to move.