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Armed Forces Bill

My Lords, I will now deal with Amendments Nos. 50, 51 and 58, which relate to how membership of the court martial is selected. Although some of these matters are dealt with in the service discipline Acts, we believe they are more appropriate for rules. But those rules will be subject to the affirmative resolution procedure. I can confirm that we intend that the court martial will comprise a majority of officers with provision in rules for there to be one or two warrant officers, depending on the size of the court. Amendments Nos. 51 and 58 take completely opposite viewpoints on whether there should be mixed-service panels. We strongly believe—this is the view of all three services—that a court martial should generally be made up from individuals of the defendant’s own service, and that should be the presumption. There will be exceptions to that—for example, when there are co-defendants from different services. Rules will provide the criteria upon which the court administration officer should select a mixed panel. It is important for the service context to be given due weight in relation to any offence, whether or not it occurs during operations. Also, most personnel usually serve in their own single service environments and would expect to face a tribunal comprised of members of their own service. We believe that members of the Armed Forces broadly have confidence in the court martial system, and changes that dilute the service character of the court martial can undermine the confidence of service personnel in it. Subject to that, selection should be random. Obviously, none of the members can come from the same chain of command as the defendant, nor are they likely to have any involvement in the case, and that is stated in the Bill. It would not make sense to select from that group where no person is or should be eligible. The Bill provides for a joint court administration officer, who will ensure consistency in the selection procedures. Amendment No. 55 would, in effect, prevent the appointment of civilian lay members at the court martial of a civilian. That is clearly inappropriate. We shall consider the composition of the court martial on the trial of a civilian and can deal with that in rules. The recent judgment in the Martin case is relevant here. We will certainly want to consider whether a majority or even the whole lay membership of the court should be civilian in those rare cases where a civilian is to be tried for an offence in the service system. Those rules are already subject to affirmative resolution procedure, which will ensure that your Lordships will have an opportunity to scrutinise our proposals in due course. I would therefore urge the noble Lord, Lord Thomas of Gresford, not to press his amendment. Amendment No. 57 makes various proposals in relation to verdicts. I can agree on one: that the judge advocate should have no vote on finding; but that is already provided for in Clause 160(2). I have recently written to the noble Lord on the remaining issues, so I will briefly summarise our position. The imposition of a system of unanimous verdicts has an attraction to those familiar with the English jury system. However, a court martial is not the same as a jury trial. The vast majority of cases that the court martial will hear are equivalent to those that are dealt with in the magistrates’ courts in England and Wales, where a simple majority suffices—namely, a vote of two to one. This will be mirrored in the court martial for the majority of its cases. There is nothing inherently unfair in a system where simple majority verdicts are allowed. As well as in our own magistrates’ courts, they are used in jury trials in Scotland, in the Court of Appeal and in many other jurisdictions across the world, including in the House of Lords and the European Court of Human Rights. Simple majority systems are different, but not inferior. We accept that the members of the court martial should seek unanimity on the verdict if possible. Judge advocates already give a direction to the lay members to seek to do that. By attempting to impose the allowed split of a majority verdict, the amendment would introduce the risk of a hung court and a retrial. It would mean that an accused who, in the court martial system may be acquitted on a three to two decision, for example, would instead have to be retried. That would be most unattractive to the Armed Forces. I cannot support an amendment that would require the division on a majority verdict to be disclosed to the court. That does not occur in the magistrates’ court, as the decision of the lay members of the Bench is the decision of the court. That is the effect that we seek to replicate for the court martial. The only occasions when splits are announced to a court are when judges are giving their verdicts—for example, in the House of Lords. Lay members of a court martial are not judges and I see no good reason to depart from the model of the magistrates’ court in that respect. Finally, on Amendment No. 59, I welcome the opportunity to address the issue raised by the noble Earl, Lord Attlee, and spoken to by the noble and gallant Lord, Lord Boyce, in relation to court centres. As I said at Second Reading, the military criminal justice system must operate where there are significant concentrations of service personnel. It is therefore quite right for the noble Earl to raise the issue of Scotland, where in future there will be more personnel from all three services, from Faslane to Lossiemouth. As I said in June in reply to the noble and gallant Lord, I believe that there is a strong service case for Scotland, and for the south-west. I do not believe that the court martial in the UK should be confined to the three new court centres. I am sure that in complex cases where their excellent facilities will be essential, all three services will use them. That is common sense. It is also common sense that where there is no such specialist requirement, the key driver must be the operational effectiveness of the services and not of court buildings. I am sure those who provide services to the military criminal justice system will recognise that. I hope that the noble Earl will understand why, having supported his reasoning, I am unable to support his amendment. This is not a matter on which we should legislate, but I hope that I have given comfort to him as to our direction in this matter. I hope that the noble Lord will be encouraged by my response and will not press his amendment. On Question, amendment agreed to. [Amendments Nos. 50 and 51 not moved.]