Clause 17 - Powers of court on finding of insanity or unfitness to plead etc
Domestic Violence, Crime and Victims Bill [Lords]
3:30 pm
Mr Paul Goggins (Parliamentary Under-Secretary, Home Office; 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The service legislation in this respect is out of date.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.