Clause 17 - Powers of court on finding of insanity or unfitness to plead etc
Domestic Violence, Crime and Victims Bill [Lords]
3:30 pm

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Mr Paul Goggins (Wythenshawe and Sale East, Labour)

I beg to move amendment No. 102, in page 12, line 17, at end insert—

'(4) Section 5A of the Criminal Procedure (Insanity) Act 1964 (''the 1964 Act'') applies in relation to this section as it applies in relation to section 5 of that Act.

(5) Where the Court of Appeal make an interim hospital order by virtue of this section—

(a) the power of renewing or terminating it and of dealing with the appellant on its termination shall be exercisable by the court below and not by the Court of Appeal; and

(b) the court below shall be treated for the purposes of section 38(7) of the Mental Health Act 1983 (absconding offenders) as the court that made the order.

(6) Where the Court of Appeal make a supervision order by virtue of this section, any power of revoking or amending it shall be exercisable as if the order had been made by the court below.'.

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Mrs Marion Roe (Broxbourne, Conservative)

With this it will be convenient to discuss the following: Government amendments Nos. 103, 104, 106, 63, 107 to 122, and 105

Government new clause 38—Courts-martial etc.

Government new schedule 1—Unfitness to stand trial and insanity: courts-martial etc.

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Mr Paul Goggins (Wythenshawe and Sale East, Labour)

This rather large group of amendments is intended to reflect in court martial proceedings the changes that were made in clauses 17 and 18. It also reflects the change made by new clauses 20 and 21, so that a decision on whether a defendant is fit to plead will be made by the judge advocate alone, rather than by the lay members of the court martial.

The service legislation in this respect is out of date. An attempt to provide an updated framework was made in the Armed Forces Act 1996, but the regulatory framework that it provided for has proved too complex and has never been commenced. It is therefore a matter of some urgency to put appropriate provisions in place.

The effect of the amendments is to allow courts martial to slot into the Mental Health Act 1983 and to make hospital orders on the same terms as civilian courts. That means abandoning the Armed Forces Act 1996 provisions, which envisaged a system allowing courts martial to commit people to hospital in Scotland or Northern Ireland, as well as in England and Wales. It must be emphasised however that, under the new provisions, a person who is admitted to hospital in England and Wales can later be administratively transferred to a hospital elsewhere in the United Kingdom, if that is appropriate in their case.

The amendments also address a problem with service legislation that has only become apparent recently in House of Lords and European Court of Human Rights case law. The Armed Forces Act 1996 envisages that orders admitting people to hospital or non-residential supervision would be made with input from both the judge advocate—who is a civilian judge—and the lay members of the court martial, who are non-legally qualified military officers who serve a function like a jury. That is consistent with the normal court martial sentencing procedure, which allows the lay members to have input into sentencing because of their expert knowledge about the effect of criminal offending on military discipline. However, the case law makes it clear that those orders are to be considered not as criminal in nature, but as mental health matters. Although the court members will still decide on the facts of the case, it is inappropriate to have lay input into the orders themselves. The decision should be made by the judge alone, on the basis of advice from mental health professionals.

In addition, amendments Nos. 102 to 104 make some technical improvements to clause 17. The changes are not related to the court martial system, but simply improve what we have already done for the civilian system.

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Mr David Heath (Somerton and Frome, Liberal Democrat)

If an individual is committed to a hospital by a court martial, does that individual remain under military discipline and subject to Queen's regulations?

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Mr Paul Goggins (Wythenshawe and Sale East, Labour)

My understanding is that they do not remain under military discipline. If any further details are of interest to the hon. Gentleman, I will write to him about them.

The amendments are large in number, but I hope that they are not too controversial.

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Mrs Cheryl Gillan (Chesham and Amersham, Conservative)

I am grateful for the succinct way in which the Minister has explained this large group of amendments, but fear strikes my heart when I read that the unfitness to plead provisions were out of date and that schedule 2 of the Armed Forces Act 1996 was never commenced due to its complexity. That is reflected in the large number of Government amendments that face us now. It is a minefield to try to make sense of such a large group.

The Minister tells us that in an attempt to bring the military sphere into line with civilian legislation, he has chosen to remove from the equation the two lay members who sit with the judge advocate. The arguments used to justify removing the jury process in non-military courts cannot be read across, because we are not talking here about a cumbersome or an arduous process or unnecessarily long procedures.

It would be interesting to know how many cases the provisions could apply to in the armed services and how many instances of cases of unfitness to plead there have been in the past five years. It is to be hoped that military procedures identify servicemen and women who have a severe mental health problem at an early stage, long before things came to a court martial. The statistics on that would inform the Committee.

What consultations has the Minister had with the armed services and their personnel? It would be interesting to know whether the military fully back the changes, and what problems, if any, were raised. There are intrinsically different sets of procedures for the armed services and for the civilian courts.

It would also be interesting to know what was behind the presence of the two lay assessors in the first place, because to remove them from the equation is quite a step forward. I find it hard to imagine how removing the two military personnel from the panel and leaving an outside judge advocate to sit on their own will benefit the offender. I also wonder whether we could find out what other European countries do in their courts martial, and whether there is any thinking in the Home Office about bringing our armed services procedures into line with procedures in Europe.

Will there be any savings? I am not sure what arrangements are made for people sitting on courts martial. It appears that there are only opportunity costs. It would be interesting to know what impact assessment studies have been done on these provisions.

As I understand it, we have an extraordinary law for our armed services, which are extraordinary services. For example, there is a military offence of cowardice

that does not read across into the civilian system. I cannot understand why we are interfering in the process of courts martial, which appear to be functioning well. Further, I would like to know why we are removing, in effect, the military presence in courts martial. That is like imagining a Church court without bishops. A court martial without representatives of the armed services seems a contradiction in terms.

What is the position when our armed forces are elsewhere in the world? During the passage of the Armed Forces Discipline Bill in 1999, Lord Burnham summed up our concerns:

''What may be acceptable in the garrison towns of Colchester and Aldershot may not be practicable or in the least possible at the sharp end in East Timor or Kosovo.''—[Official Report, House of Lords, 29 November 1999; Vol. 523, c. 672.]

What would happen if the situation arose when our armed servicemen were abroad on their duties?

3:45 pm
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Mr Paul Goggins (Wythenshawe and Sale East, Labour)

The hon. Lady asked a number of questions. I will attempt to answer them all, but I think that I will fail. I will write to her on any detailed questions that I am unable to answer now.

The costs will be minimal; the numbers are small. One reason for that is that we have not been able, as the hon. Lady pointed out, to bring the 1996 Act into play, so we have not been able to do the things that we want. I emphasise the importance of what she said: prevention and early action, rather than letting things run and have negative consequences, is always to be preferred.

She asked about lay members. I am not sure when they were introduced, but their role is clear: to bring their understanding of the impact of offending to military discipline and to make sure that that is understood at the point of sentence.

The hon. Lady asked about consultation between my Department and the Ministry of Defence and consultation with the armed forces. There has been a great deal of consultation, and all the measures that we propose in this vast number of amendments are fully supported by the armed services. I hope that, with that reassurance, the hon. Lady will be inclined to support the Government's amendments.

Amendment agreed to.

Amendments made: No. 103, in clause 17, page 12, line 20, at end insert

'''interim hospital order'' has the meaning given in section 38 of that Act;'.

No. 104, in clause 17, page 12, line 24, leave out from first 'the' to end of line 27 and insert '1964 Act.'''. Paul Goggins.]

Clause 17, as amended, ordered to stand part of the Bill.

Schedule 2 agreed to.