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Armed Forces Bill

My Lords, these are ingenious amendments or, more accurately, a new clause and amendments. If they are carried, perhaps with a little alignment or tidying up, they will serve as a very present help in times of trouble. Properly understood, they would do so without impinging on the doctrine that being obedient to an unlawful order is no excuse. Nor would they breach the principle that disobedience to a lawful order should attract punishment. They would also provide a fair criterion for visiting a serviceman’s conduct when engaged in armed combat with criminal liability in a proper case. This is a fair criterion, because it is realistic. If it were not realistic, it would not be fair. There are circumstances that impose on a serviceman who is required to engage in armed combat a degree of stress that must be unique in any field of employment. Of course, it is possible even when engaged in armed conduct to behave in such a way that by any standard and by any criterion one is guilty of murder. No one suggests that that is not so. Equally, no one suggests that those circumstances are such that they always can properly lead to a conviction for murder. To put it another way, no one has suggested that the circumstances of combat are such that the offences of murder or manslaughter are legally incapable of being committed. They plainly are so capable. The amendments seem to address the availability of liability to conviction. A point that has been made before more persuasively and vividly than I can make it is whether a soldier has done what he has done in the heat of action and in the fear of action, which is perhaps more important, or whether what he has done was in breach of the common law of manslaughter or murder. That cannot sensibly be determined by a fine examination of the matter months later in a prosecutor’s office. The nearest thing to a bang that would be heard there is when Archbold’s Criminal Practice falls off the desk. Still less can we realistically expect a soldier in action to perform this exercise for himself. Surely what the soldier steers by are his rules of engagement and the orders made pursuant to them, as has been pointed out by my noble friends Lord Kingsland and Lord Campbell of Alloway, which can and frequently are varied—and the latest version is all that the soldier can reasonably be expected to bear in mind. I suggest that justice requires that the soldier knows when he is sent into action that his conduct will be judged thereafter by a test that is fair and simple, which should be something like this: ““You are subject to the rules of engagement and rules made pursuant to them, and if you come through this action you will in any event be safe from prosecution provided that you have not deliberately set out to disobey any of them””. The soldier will understand that: it is simple, clear and fair. That is the just way to order things. It will remove the lurking fear, which soldiers have spoken of so frequently and so recently—we have all read it—of a civilian prosecution process that is unfair because it fails to take cognisance of the exigencies of armed combat.