Army: Advice of Attorney-General

– in the House of Lords at 11:36 am on 16th February 2006.

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Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative 11:36 am, 16th February 2006

rose to call attention to the advice and guidance given to the Director of Army Legal Services and the Army Prosecuting Authority by the Attorney-General under his supervisory function; and to move for Papers.

My Lords, this Motion affords, noble Lords may think, a much-needed opportunity for critical examination of the process under which resort to trial under the civil jurisdiction is granted by the Attorney-General. I raise this subject without in any way or in any sense calling into question personal integrity in the implementation of that process.

I acknowledge with gratitude the informal advice of noble and gallant Lords and other noble Lords with relevant expertise, which I do not possess. They have provided advice on the legitimate expectation as to mode of trial by court martial for an offence committed on active service when peace-keeping in aid of a civil power—a matter, addressed by this Motion, of considerable concern to the Armed Forces.

As to the concern of our Armed Forces, of course I defer to whatever may be said by the noble and gallant Lord, Lord Bramall, the noble Lord, Lord Garden, who has spoken in the interests of servicemen and women, and the noble Lord, Lord Thomas of Gresford, who has had the conduct of relevant cases which no one else in this Chamber has had.

To alleviate the concern of the Armed Forces and to safeguard the legitimate expectation as to mode of trial, it is proposed that application should be made by the Attorney-General for grant of resort to the civil jurisdiction to the High Court for adjudication according to law, and that the extant process of grant ex cathedra as an exercise of absolute discretion, not subject to review in the courts, be foreclosed upon.

Within this process, it is complicit that no notice, no reasons and no opportunity for representation are given. This is exemplified by a letter sent by the director of Army Legal Services to the noble and learned Lord the Attorney-General on 31 March 2004, seeking resort to the civil jurisdiction, which was granted:

"It is important that I should mention that Trooper Williams has not been informed that this matter has been referred to the Attorney-General, and the Army would be extremity grateful, if any further action is contemplated, to be first notified so that appropriate steps are taken to notify Williams".

He was awakened in his barrack room, to be told that he was to be tried for murder and that his name would be in the papers the next day. The charge against Trooper Williams was dismissed by the commanding officers on MoD advice, but the director of Army Legal Services disagreed with the advice. If it had been referred to a higher authority, as was the wish of the director of Army Legal Services, it would not have been dismissed—hence the resort to civil jurisdiction in the end.

Is not trial under the civil jurisdiction only appropriate and in the public interest where there are exceptional circumstances, such as someone frustrating due investigation, perverting the course of justice, assaulting civilians or prisoners and so forth? This should surely be a matter for overt decision according to law—not something within the closet of discretion, which cannot be examined and is, on the face of it, contrary to law. One must distinguish between what is in the public interest in this context and what is in the political interests of the Government. This decision is now made by the Attorney-General, but surely it should be made by the courts. Such is the situation which this Motion seeks to address.

At regular meetings attended by the noble and learned Lord the Attorney-General, the director of Army Legal Services and the Army Prosecuting Authority, trial under the civil jurisdiction—not under court martial—is advised and, in fact, directed by the Attorney-General. It is not known at whose instigation this is, but documents appear to confirm it is at the instigation of the director of Army Legal Services—not the Attorney-General acting ex officio. But, of course, one does not know. This symbiotic, close working relationship—as I have said, within the closet of discretion—is without the law. It is unfair. It bears no kinship with justice to servicemen and women, or the regiment, and deprives one of any means of objection.

The High Court would take note of the legal expectation as to trial—which is manifest in the Armed Forces Bill, but I am not dealing with that—and that someone who sits in judgment should have some relevant experience of the lethal circumstances in which this occurred. Applications would only be granted by the High Court if, in its view, they were in the public interest and not the political interests of the Government. They would only be granted if, on the face of the evidence, it was apparent that, on due legal direction, there was a reasonable prospect of securing conviction. That is a question of the quality of the evidence, which I will come to before I conclude.

If the High Court granted the application, it would give directions as to trial, directions for the avoidance of delay and, as a result, the concerns of the Armed Forces would be wholly addressed. The Armed Forces would naturally be wholly content that the decision as to transfer in this way, or either of these ways, was within the jurisdiction of the High Court.

The quality of evidence is of some importance. The Court of Appeal quite recently—I do not go in for quoting from cases, but if anyone wants to know, it is R (on the application of Al-Skeini and others) v the Secretary of State for Defence—adverted to the lack of resources for the RMP and the want of training as to proper investigation to get the quality of the evidence, relating this, admittedly, to Iraq. The Court of Appeal also said that investigation should be:

"wholly independent of the chain of command", and that the first report from the RMP should be made to the Army Prosecuting Authority. A series of trials after undue, wholly unjustifiable, delay have collapsed on flawed evidence which could not properly support conviction. While such a situation remains, and is not addressed, retention is hardly encouraged.

On 15 December 2005, my noble friend Lord Kingsland asked whether these powers as to mode of trial had been exercised by any previous Attorney-General, and whether there was any legal or constitutional basis for such exercise. My noble friend rightly asserted that, in default of an answer, there was no such power. These questions were not answered, and remain unanswered today. No other aspect of the supervisory role of the Attorney-General is being called into question. This sole one, however, is. I beg to move for Papers.

Photo of Lord Moonie Lord Moonie Labour 11:50 am, 16th February 2006

My Lords, I am grateful to the noble Lord, Lord Campbell of Alloway, for instigating this debate and for his thought-provoking introduction to a very important subject. I am grateful for the chance to contribute to the debate and shall try to place it in context.

The changing nature of war is now accepted as fact. I am sure that any noble Lord with an interest in military affairs will have read Sir Rupert Smith's recent book The Utility of Force: The Art of War in the Modern World, in which he describes "war among the people". I shall quote from that book:

"Because of the nature of war among the people, the use of force is usually initiated at a relatively low level. It is the citizen and soldier who are affected, not just leaders and commanders. All parties therefore need to know where they stand . . . Our servicemen need to know too: it is they who are held accountable in law when matters are considered after the event. International humanitarian law (IHL), most especially the Geneva conventions and the laws of war, is supposed to be a standard text for all soldiers and officers in the military forces of those states who are signatories . . . The soldier is being held accountable to the law for his actions in these campaigns, and it behoves those who send him to ensure he has an adequate understanding of the law and his position in relation to it".

It also surely behoves us to ensure that our servicemen and women are treated with justice when they are called to account, and that that justice is conducted in an appropriate manner.

The behaviour of soldiers nowadays is scrutinised as never before. The presence of the media alongside us as we conduct our campaigns has to be taken into account, as of course must the need to conform to international standards of behaviour. That requirement places a heavy burden of responsibility on officers and NCOs in the chain of command to ensure that our functions are exercised responsibly. Sadly, it appears to have failed on several occasions.

In another place, I was responsible for getting some of the legislation that applies to what we are talking about today on to the statute book, in particular the Armed Forces Discipline Act 2000, which I took through Committee and spent many a weary hour discussing with Members on all sides of the House. In addition, the Human Rights Act 1998, the Armed Forces Act 2001 and the current Bill have to be taken into account.

As a lay person, the requirements appear to me quite clear: first, a clear understanding of the law, and robust and sensible rules of engagement; secondly, the proper training of personnel, focused on how to behave among civilians. Our experience in Northern Ireland and the Balkans is excellent, but sadly it is not enough. That experience must be passed on to all who are involved in operations in a civilian context. Thirdly, we need a sound, reliable system for the rigorous investigation of alleged offences and the prosecution of offenders. Fourthly, we need to recognise that military action is only one part of a highly complex solution to a problem. The failure of the occupying powers in Iraq, particularly the USA, to recognise this has placed a very serious—some would say intolerable—burden on our forces as they attempt to keep order in that country.

In investigation, the chain of command clearly has primary responsibility, as has the military police. I should ask in passing, is there not a much greater role for the Ministry of Defence police force or the secondment of experienced police officers from civilian police forces as back-up to the investigating authorities when looking at serious offences?

I shall now turn to the role of the Attorney-General. Over the past eight years, we have done much to protect the rights of our service people and to ensure that they are given a fair trial. That was the point of the Armed Forces Discipline Act 2000. After challenge in the European Court, it was recognised that our system of justice under courts martial and summary procedures was inadequate to ensure that people were treated fairly. We attempted to redress that balance. The Act was inadequate, as primary legislation often is, and has since had to be supplemented by secondary legislation to take further account of judgments that have been made. But it is probably now a robust way to ensure that our people are properly represented and are given justice when they are brought before a court martial or dealt with summarily. It is also essential that we comply with the standards of justice expected of us as supporters of the International Criminal Court and the legislation pertaining to it. It would surely be reprehensible of us to have taken a major part in setting up that court and then to say that its provisions should not apply to our own people. In order to ensure that our people are treated under the British system, we must ensure that that system complies with the procedures of the ICC. We must keep that constantly in mind to ensure that we can administer the system on our own.

I do not believe that courts martial are an appropriate venue for offences under civil/criminal law. The standard of proof required and the right to trial by jury provide, in my lay opinion, greater safeguards for the accused than there might be in a court martial, even given the changes that we have made. I can give only anecdotal evidence to support that, but more than one senior military officer has said to me that the purpose of summary procedures, and often courts martial, is to punish the guilty, not to administer justice impartially.

Photo of Earl Attlee Earl Attlee Conservative

My Lords, the noble Lord is right when he talks about summary jurisdiction: there is an expression "march in the guilty 'baskette'"—or something similar—but a commanding officer would never opt for summary jurisdiction unless he believed that the solider was guilty, hence the expression.

Photo of Lord Moonie Lord Moonie Labour

My Lords, I agree with the noble Earl, but that is why in turn we have had to bring in additional safeguards to ensure that justice is administered, not the opinion of the commanding officer.

Where an offence has been committed under service law, it is entirely appropriate that the military system of justice should prevail. Under the criminal code, particularly for serious offences, that is not enough. The prosecuting authority should be independent of the chain of command to satisfy the requirement that justice be done and that the guilty pay for their crimes, and to ensure that those charged are treated fairly and in compliance with international law. The Attorney-General is the appropriate final arbiter in determining whether charges should be brought and under which system the accused should be tried. As a senior law officer of the government, he is responsible and accountable for the administration of that part of the system of justice in our country. There should be no other final arbiter of which cases are brought to trial and in which type of court.

On the other hand, the noble Lord, Lord Campbell, advanced a strong and passionate case for a further safeguard to be introduced. My concern would be that that would diminish the authority of the Attorney-General and perhaps weaken our level of compliance with international law. However, the noble Lord's point is worthy of serious consideration and I have no doubt that we shall return to the matter during our discussions on the Armed Forces Bill later this Session.

Photo of Lord Garden Lord Garden Spokesperson in the Lords, Defence 11:58 am, 16th February 2006

My Lords, I thank the noble Lord, Lord Campbell of Alloway, for the opportunity that this debate again gives us to consider the legal pressures under which our military have to operate. The requirement to carry out military operations within the bounds of national and international law is not new. We have covered aspects of this topic in a number of exchanges over the past year in your Lordships' House, most particularly in the debate on the chain of command on 14 July 2005. In that debate, the importance of the issue was reinforced by every noble and gallant Lord who spoke of his concerns. Yet nothing that I heard in that debate, or have seen subsequently, has changed the view that I took then: if we are to use our Armed Forces as a force for good, we must ensure that they operate at all times within the law. That means that we need a process to investigate allegations that the law has been broken and, if sufficient evidence of wrongdoing is found, due process must follow.

We are debating this issue during a bad week for public perception of the British Army. I do not intend to comment on the particular case, but it underlines the importance of a reliable legal process to investigate such allegations.

On the narrow question that is the subject of this debate, I have read the uncorrected evidence given to the Armed Forces Bill committee in the other place on 26 January 2006 by the Judge Advocate General and the three service prosecuting authorities. Major General David Howell, the current Army Prosecuting Authority, was asked directly by the committee about his relationship with the Attorney-General. He said—and I quote from the uncorrected evidence:

"We take the view that he has the right to be consulted on major cases. We certainly do not give to him or even draw his attention to every case. We have had 1,100 cases over the past few years, and that would be manifestly absurd. We do consult him on major cases. One matter I must make absolutely clear, and I am sure this goes for my two colleagues as well, we have to accept that the final decision on whether to Court Martial someone ultimately is our decision; it is not the Attorney's or anybody else's".

He went on to say:

"There has been no suggestion from anyone that either me or the leading counsel involved should take decisions for political or any other reason".

When pressed as to whether the Attorney-General,

"could refer back to you and say, in his role as superintendent, you did not refer this one to me, but you should have done", the General said:

"He could criticise me if he felt that I had not consulted him properly as I should have done but I do not believe that has happened so far".

The transcript from the subsequent session of that committee on 9 February 2006 makes it clear that General Sir Michael Jackson, the Chief of the General Staff, strongly endorses the comments made by Major General Howell. These Benches welcome those assurances and do not question them for a moment. The procedures seem entirely appropriate and appear to have been operated correctly.

I lack the legal expertise of many noble Lords who will speak in the debate, but I know that the military are very conscious of the rules and of the result if they break them. Later this year we shall debate the Armed Forces Bill, which the committee discussed, which will bring together the three service discipline Acts. That Bill is a salutary reminder of the legal framework by which the military are constrained. We expect a great deal from our Armed Forces, not just a sense of duty which extends to risking their lives in the service of the country, but we place extra legal restrictions on their actions which civilians do not have. That puts on us, as legislators, an extra onus and on the Government, as employers, an extra burden towards every individual in the Armed Forces. We expect them to respect the rule of law, but we had better be sure that we do all in our power to ensure that they have just treatment, and it is seen to be just, when they face allegations against themselves.

That means that we must not stint on the resources that we allocate to investigating complaints. The Military Police, like all parts of the services, suffer from overstretch. It is a specialist activity, which is being much used. I heard the suggestions from the noble Lord, Lord Moonie, about places that one might look, although such resources are fairly few and far between. We must have enough investigation resources to provide a speedy response in order to decide whether there is a case to answer. Justice means understanding the operational circumstances in which alleged offences have taken place. When we look at the Armed Forces Bill, the question of ensuring that the military chain of command is safeguarded will almost certainly arise, and we shall support amendments which ensure that that principle is maintained. There have been administrative problems which have led to delays, and we have discussed the Trooper Williams case, again raised by the noble Lord, Lord Campbell. There has been a lack of duty of care. But these mistakes happen, and we should not throw away procedures because of errors of implementation. We need to learn from those mistakes. We need to know that the Ministry of Defence is learning from those mistakes and that, even in these financially straitened times, the necessary resources will be made available to correct problems in the delivery of justice.

There is one other aspect which I would wish to raise, given that we have the noble and learned Lord the Attorney-General to answer this debate on a military topic. I am sure he would agree it is important that individual service men and women are always clear on what their rules of engagement are. Indeed, the noble Lord, Lord Moonie, talked about the need for robust and clear rules of engagement. Unlike civilians, the laws that affect servicemen can change depending on the nature of the task. On a humanitarian relief operation, say after an earthquake, they are not expected to use lethal force. On an operation in support of a civil power, they will be working broadly to the same rules as the civil security forces. But in a more old-fashioned fighting conflict, they are authorised to use lethal force within the laws of war. These distinctions are important and are translated into direct instructions to each service man and woman. We heard from the noble Earl, Lord Attlee, in the debate on 12 May 2004, that he received no training on the rules of engagement when he deployed on Op TELIC.

Photo of Earl Attlee Earl Attlee Conservative

My Lords, it was negligible training.

Photo of Lord Garden Lord Garden Spokesperson in the Lords, Defence

My Lords, I stand corrected—negligible training. I raise this because we are about to deploy on a complex operation in Afghanistan.

There are currently two entirely different military operations taking place in Afghanistan. One is a fighting war under US command as part of offensive operations with Operation Enduring Freedom. The second is the NATO operation providing support to the Afghan Government in their role of stabilisation and reconstruction. United Kingdom forces are currently involved in both operations, although I believe that only the Harrier force is currently undertaking tasks that are responsible to both commands on different missions.

However, the Statement, relayed by the noble Lord, Lord Drayson, on 26 January 2006 to your Lordships' House, explains that there will be a transition process for the new commitment of UK forces to Afghanistan. He said:

"In terms of command and control, to begin with, the multinational brigade will come under the coalition. This is a necessary transitional measure".

He went on to say:

"I therefore anticipate that later this year, at the earliest opportunity, ISAF will take control of the forces in the south, during our command of ISAF".—[Hansard, 26/01/06; col. 1321.]

ISAF is part of NATO.

We are therefore sending our troops initially to work under direct US coalition control, working to an offensive operation task, before they become a supporting NATO force for the Afghan Government. I think that the noble and learned Lord the Attorney-General will want to ensure that the rules of engagement are clear to every soldier, sailor or airman who might find himself having to defend his actions subsequently in this very complex command situation.

I believe that we have a military of which we can justifiably be very proud. Like every group, there will be those who break the law. We have a system to bring them to justice, and the fact that we do speaks well for the probity, integrity and reliability of our services. We must make sure that we in return give them the duty of care which is their due. There will also be times, perhaps more often than in normal peacetime circumstances, when military personnel will be falsely accused. It is important that we have a proven and reliable system, which can then clear those who face such false allegations. In sum, we are content from these Benches that the system is right, but we worry that it suffers from resource problems.

Photo of Lord Bramall Lord Bramall Crossbench 12:08 pm, 16th February 2006

My Lords, I too am deeply grateful to the noble Lord, Lord Campbell of Alloway, for raising this important question, as, indeed, I am for all the times that he very helpfully takes up the cudgels on behalf of the Armed Forces of the Crown.

On this particular issue, there has been, as the noble Lord, Lord Campbell of Alloway, said, considerable concern in the Armed Forces that the military justice system in the combat zone in a war-like environment, be it peace enforcement, counter-insurgency or whatever, has not worked as well as it should have. The noble and learned Lord the Attorney-General's supervisory role over the military prosecuting authority is clearly relevant in the consideration of all this.

No responsible military man would ever dispute that if service men or women commit a crime they must be punished. The Attorney-General made that very point in your Lordships' House when he last spoke on the subject. But the law cannot be dispensed in a vacuum. The noble Lord, Lord Moonie, pointed out that the climate of conflict has changed considerably recently. The key question that must be asked and resolved is, in a combat zone, in the middle of a battle, what exactly constitutes a criminal offence? It is certainly not, by itself, the act of killing or wounding, which may be exactly what the fighting man is there to do. It has to depend on the circumstances prevailing at the time, including the tempo of operations; the perception of the threat; the rules of engagement—which have importantly been referred to several times already—if applicable; and the good faith of those involved. The vital follow-up question is: who then decides whether, in the light of those circumstances, there is a prima facie case to answer and at what level is that decision made?

I am not referring to the rare, I hope, but most unfortunate cases of abuse or assault and battery about which we have recently been reminded. They are entirely different because they are behind the firing line and out of the battle.

I ask those questions because, in cases involving the military justice system that appear to have gone wrong because either prosecutions have tardily collapsed or there have been inordinate delays in bringing anyone to justice—both of which, however rare, are potential miscarriages of justice—it appears that crucial decisions have been taken far removed from the scene of the action and largely out of touch with the operational circumstances prevailing. In all the cases that I have in mind, some of which have already been mentioned, for one reason or another the noble and learned Lord the Attorney-General had got himself involved.

I wish to be constructive and not dwell on past mistakes, because I firmly believe that the noble and learned Lord believes in the stand-alone military command justice system. I therefore hope that he will use his supervisory role less, as the noble Lord, Lord Campbell of Alloway, implied, to conjure up reasons to take the investigation and prosecution away from the military prosecuting authority and much more to ensure that the military system is working fairly, efficiently and effectively and has his full support.

To meet the criteria—no doubt noble Lords will return to this when the new Armed Forces Bill comes before your Lordships' House shortly—in all matters involving a serious criminal charge, there should be an early and properly professional investigation by military police. If it is not professional enough, it should be made as professional as it possibly can. It should be fully conversant with the military circumstances prevailing. The investigation should be sent to the military prosecuting authority through, or with copies to, the chain of command—in the case of the Army, at one-star or two-star level—who can ensure that the military prosecuting authority is conversant with the military circumstances prevailing at the time of the incident.

It would then be up to the military prosecuting authority to make an independent judgment as to whether a prima facie case to prosecute exists. That should then be handled—again, this will come up when we discuss the Armed Forces Bill—by a court martial composed of operationally experienced officers or, in some cases, warrant officers. That will have to be looked at again carefully when the Bill comes before your Lordships' House, as a standing court is being proposed. Anything that does not come under the heading of a serious criminal offence should be dealt with initially by the commanding officer, both because of the necessity for speed in justice and because of the need to maintain the authority of the chain of command who, with proper front-line legal advice, could either deal with the case summarily, where that is in his powers, and dismiss the charge, or refer it for a court martial through the military prosecuting authority. The whole process should be completed in a reasonable period, which should be far shorter than the regrettable two to three years that have recently occurred. That is terribly important.

If we can achieve those things and keep the chain of command in contact with the military justice system, we will have a system that not only safeguards the good name of the Armed Forces for decent behaviour but keeps the confidence of those committed to combat situations, who often have to do their duty under the most difficult circumstances.

Photo of Lord Lyell of Markyate Lord Lyell of Markyate Conservative 12:15 pm, 16th February 2006

My Lords, I, too, add my thanks to the noble Lord, Lord Campbell of Alloway, for introducing this debate today and enabling us to continue to consider the role of the Attorney-General and of the prosecuting authorities in the presentation of this kind of case—the investigation, the supervision, the careful superintendence of the approach of the prosecuting authorities, carrying that right through to trial.

I want to draw on lessons which I believe can be learnt from the recent case of the Crown against Corporal Evans and others, which was decided by Judge Advocate General Blackett in a careful judgment to which I want to refer, because I believe that serious lessons can be learnt about the proper implementation of the Code for Crown Prosecutors. I would be grateful if, at the end of this debate, the Attorney-General would take this matter away to study carefully whether that code was indeed properly implemented and let the House know either today, if he is in a position to do so, or later, perhaps through a letter, what his findings are.

When I raised this matter in a Starred Question the other day, the noble and learned Lord the Attorney-General reminded the House, perfectly accurately, that the Judge Advocate General had said that he made no criticism of the prosecution or the Army Prosecuting Authority,

"even though I have directed verdicts of Not Guilty at this stage. Where on the face of the papers presented by the investigators a serious crime appears to have been committed it is perfectly proper to take the matter to trial, and in this case the prosecution team have presented their case properly and objectively".

Of course, I was not there and I hasten to say that it is no part of my speech today to criticise those final words:

"in this case the prosecution team have presented their case properly and objectively".

I think that they did that. Where a bigger question arises, which cannot really be answered by the Judge Advocate General, is when he states:

"Where on the face of the papers presented by the investigators a serious crime appears to have been committed it is perfectly proper to take the matter to trial".

Those words are not sufficient. They may be correct, but they are not sufficient in the context of the Code for Crown Prosecutors.

The Code for Crown Prosecutors is a vital step in the administration of justice. It is very important that no one should be brought to trial unless there is sufficient reliable, credible evidence to give rise to a realistic prospect of conviction. That is because prosecutors are in a very strong position to seek to judge the rights and wrongs of the case and may bring forth the case on spec—one goes back to early days when police officers sometimes said, "I think that this matter should be brought before the courts". The code makes it perfectly clear that a case should be brought before the court only if there is a realistic prospect of conviction on the reliable, credible evidence seemingly available at the time. Of course, that does not mean they must judge the evidence completely, but they must do their best to test it. That is made perfectly clear by paragraphs 5.4f and 5.5 of the Code for Crown Prosecutors. Paragraph 5.5 states:

"Crown Prosecutors should not ignore evidence because they are not sure that it can be used or is reliable. But they should look closely at it when deciding that there is a realistic prospect of conviction".

Paragraph 5.4f asks:

"Are there concerns about the accuracy or credibility of a witness in the case?".

Looking at the findings made by the Judge Advocate General in this case, I believe there really ought to have been concerns about the accuracy and credibility of the evidence. First, there were three female witnesses. Very quickly it came out at the trial that those female witnesses had deliberately made up their evidence in order to obtain compensation, and that serious cases of conspiracy to pervert the course of justice might have to be considered. Turning then to the three Iraqis who were stopped and allegedly seriously beaten up by the Army, in the view of the Judge Advocate General it appeared that when tested, it was plain that their evidence had been so grossly exaggerated that it was, to quote him,

"too inherently weak or vague for any sensible person to rely on it".

It may be the case that all that could only have come out at trial, but such is the strength of the words of the Judge Advocate General and so short was the period during which the alleged beating was supposed to have taken place—the witnesses said that it had gone on for an hour but, as the Judge Advocate General said, if anything like that had happened, they would have been beaten to a pulp—that one really wonders whether the investigating authorities and the prosecuting authorities supervising them did look carefully enough at the strength of the evidence.

When one is prosecuting and applying the code, it is absolutely essential to lean neither forwards nor backwards. The fact that it may be in the public interest to prosecute—and it would be in the public interest to prosecute in a case like this if the evidence were sufficient; there is no doubt about that—cannot override the need for sufficient credible and reliable evidence. That matter, as I have said, has to be looked at dispassionately. It is one of the safeguards for the administration of justice and one of the safeguards for the citizen. Therefore I ask the Attorney-General to go back to this case and look at it very carefully to see whether he does think that the prosecuting authorities fulfilled their role at every stage. It is a continuing duty which runs through from the point at which the Army Legal Services look into what investigations have been carried out by the Royal Military Police—the judge criticised those investigations as "inadequate"—to the members of the independent Bar. They have a duty, in consultation with the Army Legal Services, to continue to review these matters to see whether a case has properly been brought to court. I am not in a position to reach a conclusion in this case, but the noble and learned Lord is and it would be very interesting to hear what he has to say.

I want to add one further point which causes me some concern in this area. I noticed in the latest annual report from the Director of Public Prosecutions that there now seem to be two tests for the Code for Crown Prosecutors: the full test and what is called the "reasonable suspicion" test. The Attorney-General may be able to say a word about that in his response to the debate. My reading of the test of reasonable suspicion is that it is not clear how it operates, it is not clear whether it is intended to change the law in any way—although it seems to indicate that it is not—and it is not clear that someone really could be charged and held on reasonable suspicion for any longer than the four days that are permitted under the law. Some clarification of this point would be welcome.

One of the reasons that it would be welcome in the context of this debate is that the way in which prosecutors prosecute depends very much on the signal sent out from the top. The Attorney-General is the top and perhaps he could look at the signal which it seems is being sent out in this area.

Photo of Lord Truscott Lord Truscott Labour 12:25 pm, 16th February 2006

My Lords, I am grateful to the noble Lord, Lord Campbell of Alloway, for introducing this important debate. He has had a long and distinguished legal career, he served with the British Expeditionary Force in the Second World War and he was incarcerated in Colditz. Your Lordships will always be interested to hear whatever he has to say on any subject, and today is no exception. As the noble Lord demonstrated, he has given us much food for thought, and I am sure that my noble and learned friend the Attorney-General will respond to his proposals.

Unlike the noble Lord, Lord Campbell of Alloway, I have not studied the law. I have, however, studied history. When I think of the 300 Spartans under King Leonidas as they stood against over 40,000 Persians at Thermopylae in ancient Greece, it is probably a safe bet to assume that the forebodings of court martial were not uppermost in their thoughts. Even the well disciplined Roman army had scant regard for the human rights of their enemies, something that Queen Boadicea, or Boudicca if you prefer, paid back in spades when she sacked two Roman cities here in the 1st century.

War began to change its nature in the Middle Ages when the fathers of the Christian Church, from St Augustine onwards, began to teach a doctrine of just war, which required soldiers to spare women and children, to accept the surrender of enemies who had dropped their weapons, and to accept the inviolability of inhabited places where resistance was not offered.

By the early 20th century, both military discipline and the treatment of civilians and non-combatants had changed irrevocably. The First World War saw relatively few crimes which could be described as "war crimes", despite the appalling bloodshed of that conflict. But in 1919, following the Amritsar riots in the Punjab, 379 unarmed Indians were massacred on the orders of a British officer, General Dyer. The subsequent government commission of inquiry severely censured Dyer and he was required to resign his commission.

In the Second World War, noble Lords may recall that US General George Smith Patton was severely reprimanded for assaulting one of his own soldiers, and of course by then the treatment of prisoners of war was governed by the Geneva Convention. The UK ratified the European Convention on Human Rights without reservation in 1951. The primary purpose of Article 6 is to ensure a fair trial for the individual.

In more recent history, we have had our own experiences in Northern Ireland, including the Private Clegg case and, before that, the Bloody Sunday shootings. As my noble friend Lord Moonie indicated, and he has a great deal of experience in this area, it has now long been the case that British soldiers and servicemen have been accountable for their behaviour towards civilians and non-combatants, especially where lethal force has been used. None of this is new. Service personnel were investigated for alleged crimes in the Falklands and Bosnia campaigns. Your Lordships know only too well that our Armed Forces face extremely testing conditions in Iraq and Afghanistan—the latter was mentioned by the noble Lord, Lord Garden—where the threat of roadside bombs and suicide bombers is ever present. British servicemen and women carry out their duties with tremendous courage and professionalism.

If mistakes are made in the name of self-defence or in the heat of battle, the law and the courts should show understanding. Members of the Armed Forces face daily threats and stresses that most of us in this country thankfully will never have to confront. But where there is wilful mistreatment or the reckless taking of innocent lives, British soldiers must be held to account. I believe that the contribution of the noble Lord, Lord Garden, would support that view, as would that of the noble and gallant Lord, Lord Bramall. The British public, world opinion and the vast majority of Her Majesty's Armed Forces would expect no less. As General Sir Mike Jackson, head of the British Army, said:

"There are those who opine that there should be no prosecution in any circumstances whatever because the (soldiers) are doing their duty. I cannot agree. The rule of law is the bedrock of this country. The absence of the rule of law led to the situation for which intervention was made in the first place".

He went on to accuse those who criticised the prosecutions of making,

"outrageous slurs on the integrity and character", of Army investigators, and added:

"It is a calumny to imply that people are dancing to a political tune".

The noble Lord, Lord Garden, quoted Major-General Howell's similar remarks.

We should be careful not to cast aspersions on the integrity of those who have made the judgment to prosecute even though we may disagree with those decisions. We can, however, unite to express concern about the inordinate delay in bringing prosecutions in some of those cases in the first place, a point made by the noble and gallant Lord, Lord Bramall. I hope my noble and learned friend the Attorney-General will reply to this point in his summing up.

On the current relationship between the Law Officers and the service prosecuting authorities, my understanding is that the Attorney-General answers to Parliament for the prosecution decisions and overall policies of the prosecuting authorities. The Army Prosecuting Authority is subject to the general superintendence of the Attorney-General, a point already mentioned today. He is not responsible for its staffing, resourcing and general establishment, which remains the responsibility of the Secretary of State for Defence. The Attorney-General and his predecessors have exercised this general superintending function to offer advice and general guidance to senior staff of the three service prosecuting authorities.

Since 2003, the Army Prosecuting Authority has consulted the Attorney-General on a total of 12 serious Iraqi cases involving allegations against UK servicemen. The APA decided to proceed with four of these 12 cases: one case has been dismissed, with no criticism made of the APA—I believe this was the case referred to by the noble and learned Lord, Lord Lyell of Markyate—one case led to conviction and two cases are proceeding.

As my noble friend Lord Drayson said in your Lordships' House in July of last year during the debate on the chain of command, the number of investigations is very small bearing in mind the number of personnel who have served in Iraq. Of the 176 cases mentioned during that debate, 151 were closed without any further action being taken. In 100 of those incidents, British troops had been fired upon. This needs to be seen in the context of the 70,000 military personnel who have served in Iraq.

In conclusion, I hope that the process of justice within the Armed Forces will be much improved by the Armed Forces Bill, which seeks to consolidate the service discipline Acts into a single system of service law and to bring service law more closely in line with civil law—and here I probably differ with the noble and gallant Lord, Lord Bramall. It will introduce a joint prosecuting authority in place of the three separate existing prosecuting authorities. In particular, I welcome the intention to create a tri-services redress of complaints panel with an independent element. I believe that such a panel would be widely welcomed in Her Majesty's Armed Forces, which remain the best armed forces in the world.

Photo of Lord Mayhew of Twysden Lord Mayhew of Twysden Conservative 12:33 pm, 16th February 2006

My Lords, I, too, thank my noble friend Lord Campbell for giving us the opportunity to discuss an element of the Attorney-General's responsibilities upon which, until recently, no light seems to have shone. I refer, of course, to his superintendence of the activities of the Army Prosecuting Authority and what must in reality be his decisive influence upon the question of whether a soldier should be tried by court martial or in the civilian courts in respect of a serious offence such as murder.

It is plainly a topical matter because thousands of British troops are deployed already in Iraq, in very dangerous and testing circumstances, and many more are about to go to Afghanistan. It is important, too, because they need—and certainly deserve—clarity, not only as to the law within which they have to operate but also as to the fairness of any proceedings which they may find themselves facing. That requirement of fairness of proceedings certainly extends, I believe, to the character of the tribunal which will try them.

The Armed Forces of the Crown—uniquely, as far as I am aware—have been given by Parliament, over many years, their own system of criminal justice, which includes sanctions potentially providing for extremely severe penalties in a proper case. It is not any anomalous quirk of history that has provided for this arrangement. It exists because Parliament has recognised the unique severity of the dangers that soldiers—and it can be true nowadays of all servicemen and servicewomen—may be called upon to face, a point eloquently and authoritatively made already today by the noble and gallant Lord, Lord Bramall. They have to take instantaneous decisions, as has often been recognised in this House, on the strength or weakness of which they may themselves die.

That is why a system of martial courts, staffed by martially experienced people, has been provided which, professionally directed as to the law, can bring to these trials a personal understanding of the realities of conflict that cannot be expected from a civilian court. I think, for my part, that soldiers have found this reassuring, and certainly the noble and gallant Lord, Lord Bramall, and others with a wealth of military experience have confirmed that on previous occasions.

I have absolutely no problem at all with the arrangement whereby the Attorney-General superintends the Army Prosecuting Authority, who also serves as the Director of Army Legal Services. After all, for more than 100 years, the Director of Public Prosecutions has by statute been superintended by the Attorney-General. So far as I am aware, the word "superintend" has never been construed—and very properly so, because it means what it says. This has given rise to a thoroughly commonsense relationship between the Law Officer whose duty it is to answer to Parliament for prosecuting policy, as the noble Lord, Lord Truscott, said, and the professional head of the Crown Prosecution Service, who is the decision taker.

However, those two—the Attorney-General and the DPP—have never had to decide which of two quite different criminal jurisdictions should be selected in a particular case, and yet in the now notorious case of Trooper Williams this was the critical choice that the Attorney-General made. This is clear from the documents that my noble friend Lord Campbell has brought forth. It is a decision that has caused much concern. That seems to me to be the crucial decision where you have a jurisdiction to choose or where you express a decisive preference for one jurisdiction or another.

The Williams case displayed the significance of that choice very vividly. In that case the Attorney-General plainly advised a further trial—this time in the civilian courts—of charges which had already been dismissed by two commanding officers. We have heard all this before and I have no intention or need to reopen the Williams case today. It is enough to say that the ultimate decision to drop the case—virtually at the door of the court—was received with a great deal of satisfaction by a great many people who had been worried by it. It took six months for Williams to be told that the matter was being reconsidered after dismissal of the charges, and another three months before he was told that he was going to face trial again, but it was very noticeable that at no stage during that deliberative process—which I am sure was anxious and conscientious, and which certainly cannot be described as hurried—was Williams allowed to participate at all. Most of the time he was not even told it was happening.

Given the potential consequences for Williams of the decision to retry him, does the Attorney-General regard that procedure as unfair? Does it not stand in stark contrast to his own jurisdiction as Attorney-General regarding a sentence that he considers unduly lenient? He can seek the leave of the Court of Appeal to refer it for review. When I introduced that excellent reform—if I may modestly so describe it—in 1988, I do not think that I would ever have considered denying the defendant any right at all to be heard, and I would not have got the proposal through Parliament had I done so. In fact, the defendant has to be told by the registrar of the Court of Appeal of his right, on leave from the court, to present any argument to the court, in person or by counsel, even on the hearing of the Attorney-General's application, not to mention on any resulting hearing of the reference itself.

That is why my noble friend is so right to make the case today for a change. He does so, and so do I, without making the slightest imputation upon the integrity or the propriety of any decision taken by the Attorney-General on personal grounds. I well recall that the Attorney-General has as his daily fare one anxious decision after another as well as having to face the attentions of extremely versatile critics.

For my part, I would limit the scope for change to cases where the proceedings in question are to be taken against a soldier in respect of his conduct when in a conflict situation. If it is proposed that his case should be tried not by court martial but by a civilian court, I suggest, with my noble friend, that there should be a hearing before a High Court judge at the instance of the Attorney, with the defendant entitled to participate, or at least to seek the leave of the court to participate. The scope of the hearing should be wider than in an application for judicial review, and the burden ought to be on the Attorney to show why, notwithstanding the context of a conflict situation, it would nevertheless be in the interests of justice, including justice to the soldier, for the case to go to a civilian court on the basis of the evidence available. The application would be that of the Attorney; the decision would be that of the court. Whichever way it went, I think that much reasonable anxiety would be allayed in the hearts and minds of those—and their families—who, in the service of the Crown, are sometimes called upon to put their lives in mortal danger.

Photo of Lord Corbett of Castle Vale Lord Corbett of Castle Vale Labour 12:41 pm, 16th February 2006

My Lords, I join those who have thanked the noble Lord, Lord Campbell of Alloway, for making this debate possible. I come to it from a wholly civilian background, bar some undistinguished service in the previous century as a national serviceman in the Royal Air Force. This is, as has been said, a legally complex issue, but it is underpinned by some key issues, many of which came out in newspapers at the time of the trial of Trooper Williams and Corporal Blair.

We are rightly proud of all those who serve in our Armed Forces, often in exceedingly dangerous circumstances, and we rightly expect the highest standards of behaviour and professionalism from them. Only those who have found themselves in hostile and menacing situations can appreciate the iron discipline needed to respond appropriately within the rules of engagement in those circumstances. I certainly can get nowhere near to this because I have not had the relevant training on which to rely.

It is against that background that we react to allegations of abuse, murder and manslaughter by service personnel in the line of duty. We feel outraged and let down, and I do not doubt that their comrades do as well. It is why the video footage from Basra last weekend of civilians allegedly being abused by British troops caused such revulsion, as well as the renewed claims of abuse and mistreatment of prisoners in Abu Ghraib prison in Baghdad. It is right to put on record that none of us here and few outside would suggest that service personnel are in any way above the law. When allegations of improper behaviour are made, they must be rigorously investigated, independent of the chain of command, and where evidence is judged sufficient, charges laid and prosecutions carried out.

It is also right to recognise that while some 80,000 service personnel so far have served in Iraq, just 12 serious cases have been referred to the Army Prosecuting Authority. My noble friend Lord Truscott told the House of the outcomes of those cases. A note I received this morning from the Clerk of the Journals, which I think all noble Lords have had, contains details of another seven cases arising from the Iraqi conflict which are under consideration but cannot be mentioned here because of the sub judice rule.

In his introduction to the debate, if I heard him properly, the noble Lord, Lord Campbell of Alloway, referred to the political interests of the Government in these matters. The implication—I am not sure whether he meant it or not—is that there are occasions when the Attorney-General might be said to be acting in a political manner. If that is the case, I simply do not believe that that argument can be sustained. Noble Lords do not need me to remind them of the hours spent in this place defending the role of the Lord Chancellor—a political appointment, by the government of the day, who sits in the Cabinet. Yet as head of the judiciary he is expected to, and does, operate in a wholly independent way in that role.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

My Lords, I saw the noble and learned Lord the Attorney-General smiling. If the noble Lord, Lord Corbett, would be good enough to look in Hansard at the debate that took place on 14 July 2005, he will see that it was made perfectly plain, long before I introduced this, that there is no criticism of the personal attitude of this Attorney-General or any other Attorney-General.

Photo of Lord Corbett of Castle Vale Lord Corbett of Castle Vale Labour

My Lords, I heard the noble Lord say that when he introduced the debate, and I am glad that he has clarified it. That leaves me puzzled about what he meant about the political interests of the Government in these matters.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative

My Lords, on a question of this sort, it is very important that no one should think that this is in any sense related to matters extraneous to justice. This was dealt with on 14 July. I made it perfectly plain that it was not suggested that, at the element on which it was granted—which the Attorney-General did—the Attorney-General knew what was in the letter, which was a reason relied upon by the Director of Army Legal Services. I would be very much obliged if the noble Lord would accept that I am not attacking the Attorney-General and never have. I am attacking the process.

Photo of Lord Corbett of Castle Vale Lord Corbett of Castle Vale Labour

My Lords, I am totally happy to do as the noble Lord asks.

In the Attorney-General's role as superintendent of the military prosecuting authorities, it is quite right that he should retain the power to express the view and offer the advice that some serious cases, rare as they may be—or not—which in his or her judgment are important on the grounds of public interest, should be heard in the civil rather than the military courts. I am sure there will be agreement around your Lordships' House on this point: I do not believe that politicians have any place in the civilian or the military justice system. That is why I made the point about the proper independent role of the Attorney-General. That needs to be nailed down and made clear so that everyone can understand. The minute politicians seek to interfere in any part of the judicial process, it is the death of the system's independence.

I wish to make two other observations. Some of the more excitable newspapers referred to so-called political correctness with regard to the prosecutions of Trooper Williams and Corporal Blair. It took General Sir Mike Jackson, the Chief of the General Staff—he should know, shouldn't he?—to say that that was quite untrue. It then took the Army Prosecuting Authority, in the shape of Major-General Howell, in his evidence to the Select Committee on the Armed Forces Bill on 26 January this year, to say:

"There has been no suggestion from anyone that either me or the leading counsel involved should take decisions for political or any other reason. I am quite certain that none of those experienced Queen's Counsel would tolerate those suggestions. I would certainly not tolerate any suggestion that my decision should be interfered with by anybody".

He added, although I do not think he needed to:

"I hope that sets out our position as clearly as I can".

I believe he did that absolutely. Those two pieces of evidence should lay to rest any of these irresponsible claims of political correctness influencing what happened in this case.

I make this last point as a former journalist, but I make it none the less. The media have put forward the argument that some unfounded cases are being taken forward to prosecution—in this short debate, we shall all have in mind certain cases. That is an insult for the prosecuting authorities, whether military or civilian, and it does no credit to newspapers that peddle it. I think that it can threaten—and I really mean this—to undermine the military performance of those who are serving in dangerous situations. It can damage recruitment and it can affect morale, and none of us wants that in the Armed Forces.

Photo of Lord Astor of Hever Lord Astor of Hever Deputy Chief Whip, Whips, Shadow Minister, Defence, Shadow Minister, Foreign Affairs, Shadow Minister, International Development 12:51 pm, 16th February 2006

My Lords, the House and the Armed Forces owe a debt of gratitude to my noble friend Lord Campbell of Alloway for the expertise and zeal with which he focused his spotlight on the theme of military justice and the chain of command. Regrettably, there is some ambiguity about the nature, extent and basis of the guidance given by the noble and learned Lord the Attorney-General under his supervisory authority to the Army Legal Services and the Army Prosecuting Authority. Like my noble friend Lord Mayhew, I make no criticism of the noble and learned Lord's integrity.

There should not be ambiguities; there should be precision. At the heart of those ambiguities in the Trooper Williams case lay the rules of engagement. We know that his CO, on legal advice, took the view that his action was within those rules. When the case was brought before the court, those rules were withheld from the judge, as she pointed out, although she was shown a brief summary of them.

The current evolving deployment of UK troops on a difficult, dangerous and still ambiguously defined mission to a volatile region of Afghanistan must raise in the minds of those directly and indirectly concerned serious worries not so much about what the rules of engagement say, but about their legal standing. If a soldier acts within the rules of engagement, he or she should not face charges. That, it seems to me, is also the view of Brigadier Andrews, director of personnel services for the Army, supported by Commodore Fraser, director of legal services for the Royal Navy. Giving evidence to the committee on the Armed Forces Bill, Brigadier Andrews said—I quote from the uncorrected transcript:

"we have our rules of engagement and, of course, it is the surety for the soldier acting within his British rules of engagement that he is acting within the law".

The Armed Forces Bill should establish beyond doubt or question that the rules of engagement, as laid down, are the law of the land and that they give the protection to our people that has been assumed and which Brigadier Andrews has claimed to Parliament.

The Bill should also define in statutory terms the supervisory role of the Attorney-General. That power would appear to rest on an answer given by the noble Lord, Lord Robertson of Port Ellen, when he was Defence Secretary to a Parliamentary Question on 19 January 1998.

Although the prosecution of Trooper Williams finally failed, the case is of continuing significance for its impact among members of the Armed Forces. They see themselves all too easily in similar peril, not from the enemy but from people on their own side, on whom they believed they should be able to rely. Giving evidence to the Armed Forces Bill committee, Mr Julian Miller, director-general of service personnel policy at the MoD, said, again according to the uncorrected transcript:

"There has been one case which . . . has led to a soldier being tried outside the military system and the circumstances that led to that we think are circumstances we would wish to avoid in the future and the Bill has been constructed in a way which will, we believe, ensure that that does not happen again".

Given the status of the witness, this statement must be taken as an expression of considered policy, but I do not see where this safeguard is in the Bill. While I do not expect an answer from the noble and learned Lord, I would be grateful if someone from his office or the MoD could write to me pointing out where in the Bill that will happen and providing an assurance that transfer from military to civilian jurisdiction will never happen again in operational cases.

The noble and learned Lord has assured me in correspondence that he understands the difficult operational circumstances that our Armed Forces face, and I am reassured to that extent and at that level of authority. But anxieties remain relating to other links in the justice system. Too many soldiers of all ranks have told me they are really concerned that the people who run the Army Legal Services and the Army Prosecuting Authority, those who make the decisions affecting individual cases, seem to have little personal experience or understanding of those operational circumstances. I can understand the arguments on both sides. On one side there is the evident case that the Army Legal Services and the Army Prosecuting Authority, in particular, need to enlist better lawyers, and on the other, that those who work in the service and the authority should be drawn from those with practical experience of military operations of the kind that may result in events which require inquiry and reasoned and properly informed decisions whether or not to prosecute.

The former Adjutant General's comment about "offering for prosecution" Trooper Williams to placate pressure groups and human rights lawyers still rankles with ordinary servicemen and women. Unfortunately, that has led to a climate of concern about the growth of a litigation culture, making them risk-averse. If we are going to sustain Armed Forces focused on what it takes to fight and to win, we cannot allow the development of a cast of mind that is risk-averse. It is the absolute antithesis of military morale. Young soldiers are trained to be aggressive and to fight wars. When split-second decisions have to be taken by a young soldier, or even a more experienced one, in testing circumstances, perhaps under fire or in a state of extreme fatigue, the potential for error is enormous. Soldiers must be held responsible for their actions. But so must they be allowed to make mistakes. The interpretation of the law must be much more flexible than for a civil situation.

In the past, the noble and learned Lord has justifiably expressed his concerns about the quality of military investigations. Quite apart from the inherent difficulties in undertaking forensic inquiries to a Home Office standard, under fire or in the aftermath of fire fights, the service police are significantly under-resourced to carry out complex investigations in theatre. For military justice to be effective, the service police must have the resources, funding, manpower and operational doctrine needed to provide the service prosecuting authorities with prompt and reliable investigations. The Armed Forces Bill will, inevitably, result in an increased workload for the service police. Therefore, they need more resources, not fewer.

Air Chief Marshal Sir Anthony Bagnall, as Vice-Chief of the Defence Staff, commissioned, as long ago as 2003, a review of the service police on operations. The report found that only 4.3 per cent of the service police were qualified and trained to carry out investigations into the most serious of offences and available for deployment.

Furthermore, the report indicated that the future structure of the Army may result in fewer resources for an already overstretched military police force. What has been done to give effect to the recommendations in that report; notably, improved training, better provision of equipment and improved legal advice in theatre?

How is the performance of the Army Prosecuting Authority monitored and measured? Is that part of the supervisory responsibilities of the noble and learned Lord? Or is it just something that may occur intermittently somewhere within the backwaters of the MoD?

Some detailed annual statistics are available, extracted by means of Parliamentary Questions by my honourable friend Robert Key, about the number of courts martial verdicts that have to be varied on review. Is that an acceptable level? Who decides?

Partly because of the sub judice rule, it is difficult to track progress, or the lack of it, in particular cases. We on these Benches are deeply concerned about the long delays in military investigations in numerous cases. According to the uncorrected transcript, Brigadier Andrews said,

"timely justice is what military justice should always deliver and that is, of course, what soldiers on the ground want".

What is the noble and learned Lord's role in preventing delays? Will he provide some tangible evidence to the House that he is making real efforts to put his personal impetus behind the brigadier's words and that final decisions on military cases are reached in a timely and efficient manner?

Photo of Earl Attlee Earl Attlee Conservative 1:02 pm, 16th February 2006

My Lords, I am grateful to my noble friend Lord Campbell of Alloway for introducing this debate. I am neither a lawyer, a former Minister nor a former CDS. I am much closer to the shop floor, a humble major, and I am subject to military discipline as we speak.

Fortunately, I have never come even close to having to engage an enemy, but like every other member of the Armed Forces, I have to be prepared to do so at no notice. I am a serving TA officer. I am liable to be called up for operations and I have taken part in two so far. However, noble Lords should understand where I come from. If I had to engage the enemy and apply lethal force, I have absolutely no confidence whatever that I would be promptly and fairly dealt with—not one shred.

However, it is important for noble Lords to understand that I have full confidence in the chain of command—my commanding officer, my brigade commander, the divisional commander, Commander-in-Chief, Land, and the Chief of the General Staff. But they cannot help me or exonerate me of any wrong-doing, even if I had acted precisely in accordance with their intent and with the rules of engagement. On current evidence, I will not know whether I had acted properly and legally for at least two or three years, if ever, even though I might have had only as many seconds in which to make my decision during the operation. There does not seem to be a system to exonerate those who have only done their duty, and legally—at least not any longer for murder and manslaughter. This applies equally to the Armed Forces and the police, who have their own problems. I will resist the temptation to comment on the working of the APA and the CPS, but I agree with almost everything that my noble friends have said.

I expect that some noble Lords wonder why soldiers continue to serve and, in particular, whether I would agree to go on another operation. There are numerous hazards on operations: injury; sickness, including post-traumatic stress disorder; and death. Delayed justice is just another hazard. Everyone, including me, just hopes that it will not be him.

Would I go on operation? My biggest problem as a TA officer is my civilian occupation, which happens to be in your Lordships' House, but it could be elsewhere; it is not the statistically low risk of being hit by delayed justice. Moreover, I will be 50 years old in October, so it is about time for me to consider retiring, but I will certainly not consider resigning because of this problem.

What advice would I give to a young man considering joining the British Army, either the regular Army or the Territorial Army? Until we sort out this shipwreck of a disciplinary system, supervised by the noble and learned Lord the Attorney-General, I would advise joining the Royal Navy or the Royal Air Force, which offer just as good a career. There is just as good an opportunity to make valuable public service and virtually no chance of experiencing the difficulties which were faced by Trooper Williams. I pay tribute to him for conducting himself so well.

Noble Lords will have seen the shocking newspaper reports last weekend. They will have detected a fairly robust line in my speech and interventions. Even in high-intensity war, once the enemy is a prisoner and no longer a threat, he is entitled to entirely different treatment. Whether it is a war-fighting or a peace-keeping operation, prisoners must be treated humanely, not only for legal reasons, but also to facilitate reaching the desired end state by winning the hearts-and-minds campaign.

I shall not weary your Lordships with the detail. However, in every year of my military service, the need to protect prisoners and other vulnerable people during operations has been drummed into me. It is extremely hard to understand why we are suddenly experiencing problems in this respect. It is no use Ministers and noble Lords saying that such cases have been unusual in Iraq. During Operation Banner in Northern Ireland, which ran for several decades, soldiers were under severe provocation, but problems were rare, especially as far as gratuitous assault was concerned.

Sadly, things did go wrong on Operation Telic in spring 2003. If they had led to a court martial by the end of 2003, or perhaps early in 2004, or at least charges being laid, would matters have gone so badly wrong in 2004? If one exercises military discipline promptly and fairly, with appropriate checks and balances, and a short "flash-to-bang" time, one can get away with lighter punishments, but still have the same deterrent effect. In addition, more serious problems can be completely avoided.

My own view and experience is that our system of military discipline is falling apart. I do not find myself in agreement with the noble Lord, Lord Moonie, despite his experience, but I look forward to debating the Armed Forces Bill with him. His experience will be invaluable.

I will give your Lordships an example of where the system is falling down at a low level. It is falling down with the ingress of the ECHR and by means of the Armed Forces Discipline Act. In 2002, I was driving along the A303 on Salisbury Plain in my Land Rover Discovery at 65 to 70 miles an hour. I was overtaken by an Army heavy recovery vehicle, towing another heavy vehicle. This was reckless. My duty was to report this to the Royal Military Police and I did so. My evidence alone would have been quite sufficient to convict since I was experienced with this type of vehicle—I was not just a second lieutenant straight out of Sandhurst. However, the Royal Military Police never took a witness statement from me; therefore, no disciplinary action could be taken. If it had been, the penalty under summary jurisdiction need not have been severe—perhaps a £150 to £200 fine—but it would have deterred the driver from committing that sort of offence. Theoretically, it could be a charge of dangerous driving, an imprisonable offence, but my point is that there is no need to do that; there could be a short "flash-to-bang" time and a modest fine, and it should all be over in less than a week, using summary dealing. But suppose that the driver lost control of the vehicle—the 37 tons of these two vehicles—and ploughed into a school bus, causing numerous casualties; then I suspect the Royal Military Police would ring me up very quickly to ask for a statement. It would be an open-and-shut case of causing death by dangerous driving, and no doubt a prison sentence would follow.

When I raised the issue at a previous debate, the then Minister, the noble Lord, Lord Bach, never wrote back with an explanation; presumably there was none. My point is that if you have the moral courage to take decisions promptly and fairly, you can avoid much greater problems arising later and do so with less severe punishments.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative 1:10 pm, 16th February 2006

My Lords, I had not intended to intervene but, having listened to this debate, it seems to me—and I hope that the noble and learned Lord the Attorney-General will consider it—that there is scope for some way in which the defence attitude to the particular tribunal could be taken into account in the decision about which system, either the military or the civilian, will be employed. It also seems important to determine the time or the stage that the procedure has reached when a decision must be taken to ensure that someone subject to military discipline will not in effect be subject to two processes, one after the other.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities 1:11 pm, 16th February 2006

My Lords, I express my gratitude to the noble Lord, Lord Campbell of Alloway, and pay tribute to his distinguished military and legal career, which makes him uniquely qualified to raise these matters. I also declare an interest as someone who has appeared in many courts martial and court martial appeals.

The relationship between the Attorney-General and the service prosecuting authorities is significantly different from his relationship with the Crown Prosecution Service. My noble friend Lord Garden has already referred to the evidence of Major-General Howell, the Army Director of Prosecutions, in giving evidence to the Armed Forces Bill committee. He said that in his view the Attorney-General had a right to be consulted on major cases, but he added that,

"we have to accept that the final decision on whether to Court Martial someone ultimately is our decision; it is not the Attorney's or anybody else's . . . we are not like the CPS in that sense. The point is that the decision is ours".

That was a firm declaration of independence.

The noble and learned Lord the Attorney-General in the last annual review that he published put it this way, saying:

"The Law Officers have a general oversight of the Service Prosecuting Authorities and assist with advice, such as, in some cases, determining whether a matter should go before a military or civil tribunal. They receive an annual report on the activities of each Service Prosecuting Authority".

So it is a "general oversight". That is very different from the relationship to the Crown Prosecution Service. In his introduction to that annual review, the noble and learned Lord the Attorney-General said that he appoints and superintends the Director of Public Prosecutions. Although the noble and learned Lord, Lord Mayhew of Twysden, said that no one had ever sought to define "superintendence", the Attorney-General explained the concept, saying:

"This means that the Attorney General (i) has ultimately the ability to give directions to the DPP in relation to the overall conduct of the CPS and its prosecution policy and (ii) is answerable in Parliament for decisions or actions that he or the DPP takes on prosecution matters and for the policy that is applied by the CPS in the handling of particular cases".

He goes on to say that successive,

"holders of both offices have accepted that this means that in relation to individual prosecuting decisions, in the event of disagreement between the Attorney General and the DPP, the Attorney General's view would prevail".

The Attorney-General is therefore ultimately responsible for CPS decisions, but not for prosecution decisions taken by the service prosecuting authorities. No doubt he is asked for advice, but there does not appear to be any formal mechanism. Indeed, it was the evidence of the heads of each of the service prosecuting authorities that the Attorney-General might well learn of cases not from them but from newspapers or letters from Members of Parliament. The noble Lord, Lord Corbett, pointed out that they were also anxious to emphasise to the committee that no suggestion was ever made to them either by the noble and learned Lord the Attorney-General or by the leading counsel, whom they consulted, that they should take decisions for political reasons.

I agree with the noble Lord, Lord Corbett, that it is right and proper that decisions to prosecute should not be influenced in any way by party-political considerations. However, they should most certainly be influenced by considerations of what is or is not the broad public interest, and I do not consider that the heads of the service prosecuting authorities are the appropriate people to determine what the broad public interest is. Nor is it right that the Attorney-General, who does not bear responsibility with decisions to prosecute in a particular case by way of court martial, should be roasted in Parliament later. I do not know what influence the noble and learned Lord the Attorney-General has with the Army Prosecuting Authority; I am sure that it is very considerable. However, in one court martial, now completed, the leading counsel for the prosecution was formally approached by the defence with the advice that he should seek the advice of the Law Officers as to whether to continue the prosecution on public interest grounds. I really do not know what happened; but if the Army Prosecuting Authority maintained its independence and did not consult the noble and learned Lord the Attorney-General, I am sure that the consequences were very unwelcome to that service, and to the Attorney-General, who had to defend and stand the criticism in this House.

There is a broad public interest involved. In a recent case in the United States, a Chief Warrant Officer Welshofer was convicted at a general court martial of negligent homicide and dereliction of duty for his part in the death of an Iraqi general during an interrogation that he and others were carrying out. His counsel, a Mr Frank Spinner, made this important point, which has been echoed by your Lordships today. He said that when men and women are sent out to a hostile country to fight and to put their lives on the line, the government must give them clear rules and back them up. He said:

"They must be given enough room to make mistakes without treating them like criminals".

Unlike many jobs or professions, the trade of the soldier is violent, and if he makes a mistake he is likely to cause injury or death. It is difficult to draw the line, as the noble and gallant Lord, Lord Bramall, said in his speech, about what should be punished and what should not.

Mention has been made of the rules of engagement. One of the problems in the immediate aftermath of Operation Telic, the invasion of Iraq, was that the rules of engagement did not change with the cessation of hostilities. Soldiers trained aggressively to attack and if necessary kill the enemy—they were given rules of engagement to that effect—found suddenly that they were required to act as an armed police force. However—this is the important point—they were given no fresh instructions, fresh training or fresh rules of engagement for many months. It most certainly was not a Northern Ireland situation of assisting the civilian police, with all the constraints that involved. Iraq was and is hostile and dangerous country, and our soldiers deserve to be spared the task of creating their own rules of engagement for the unexpected situation that arose there, whereby, instead of being greeted like heroes on the cessation of the fighting phase they were met with a bullet and a bomb.

The absence of clear rules makes it impossible for the soldier to determine which orders he received were lawful, which he must obey, and which orders are unlawful, which he should disobey to avoid criminal liability—because "I was only obeying orders" is not a defence. He must know where he stands. Both my noble friend Lord Garden and the noble Lord, Lord Moonie, have made that point. It is critical that military commanders, and indeed the political leaders behind them, lay down and communicate to the troops clear standards of behaviour towards the civilian population, prisoners of war and, in particular, detainees.

Fortunately, the vast majority of our troops are disciplined and professional, but from time to time their activities give legitimate cause for concern and prosecutions are considered. The problem as I see it is that the heads of the service prosecuting authorities may be too close to the action. They may come down heavily on the squaddie without examining what is wrong in the chain of command. In the Evans case—the example to which the noble and learned Lord, Lord Lyell, referred—the prosecution did not in my belief obtain, let alone consider, the rules of engagement in operation at the time as prepared by the High Command until asked by the defence to produce them weeks into the trial. I am sure from the prosecution opening that the prosecutors believed some sort of Northern Ireland rules of engagement had superseded the rules for invasion and fighting of the war, when that had not happened.

A second problem is that service prosecutors will prosecute a serviceman for criminal offences from time to time in the interests of military discipline, in circumstances where the Crown Prosecution Service would not. That was the stance accepted and relied on by the Crown in the case of Boyd, Hastie and Spear before the Judicial Committee of this House in 2001, a point made by the noble Lord, Lord Moonie.

While I fully support the creation of a director of service prosecutions under Section 355 of the Armed Forces Bill, I am unhappy that the Bill does not strengthen the superintendence of the Attorney-General. It is left to some vague convention that he be consulted in serious cases. I would go further. There are serious political issues with respect to the activities of British forces abroad, and there is a wide public interest. In my view the Attorney-General should have explicit ultimate responsibility for prosecution decisions, as he does with the CPS, and should be answerable directly for those decisions in Parliament. I should be interested to know if the noble and learned Lord would welcome that responsibility. Ultimately it is important that the public have confidence in the system, and that those who serve in the forces have confidence that, if they are in trouble, decisions to prosecute for serious crime will be made independently and fairly.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Constitutional Affairs, Shadow Lord Chancellor, Parliament 1:22 pm, 16th February 2006

My Lords, I associate myself with all of your Lordships who have thanked my noble friend Lord Campbell of Alloway for raising this issue in the House today. As I think the noble Lord, Lord Thomas of Gresford, said, my noble friend is in a unique position to do so. He has not only practised as a Queen's Counsel in the courts for many years, but also experienced some of the most severe fighting ever seen on the continent of Europe, in May 1940 during the devastating German advance.

I also thank the noble and learned Lord the Attorney-General for a meeting he attended, together with General Howell and a number of his own civil servants, to discuss the matters before this House today, and other matters. I doubt whether the Attorney-General will agree with everything I say at the Dispatch Box; but, agree or disagree, I would like him to know that we appreciated the fact that he gave us so much time.

As your Lordships will recall from the debate on 15 December, the noble and learned Lord the Attorney-General believes he has the constitutional power, at any stage during its investigatory or prosecutorial phase, to transfer a case from the military system of jurisdiction to the civil system. He knows that we disagree with that belief, for a number of reasons that were set out in detail during that debate. Briefly, those reasons are that we believe his supervisory power over the military prosecutorial authorities does not include a power to take executive decisions with regard to the cases in front of those authorities; we can find no precedent for any previous Attorney-General asserting this power; and, throughout, the noble and learned Lord has given no legal or constitutional justification for what he has done.

Irrespective of whether we or the noble and learned Lord the Attorney-General are right about this, no one can doubt that the power asserted by him is exceedingly wide and wholly unreviewable in the courts. As so many of your Lordships have said, that is proving extremely damaging to the state of morale in the Armed Forces. A soldier, aviator or seaman has the right to expect that, if his judgment in the course of operations is going to be called into question, that judgment will be considered by those who understand what it is like to be in a similar situation. That, surely, is the crucial issue that lies behind these matters. Soldiers facing the kind of difficulties outlined so graphically by my noble friend Lord Astor have to make decisions in extremely short timeframes, to use modern jargon, sometimes split-seconds. That is an experience very few civilians have.

Because the Attorney-General's discretion is so wide and ill-defined, the crucial ingredient we now need to insert into decisions about whether a particular case should take place under civil or military jurisdiction is a powerful injection of certainty. That is precisely what the proposal by my noble friend Lord Campbell of Alloway will give. Servicemen will know that, before a case can be transferred from military jurisdiction to civil, they will have a right to be heard in the High Court before one of Her Majesty's judges, and that it will only be after that decision that a transfer can be made.

My noble friend's proposal will not only bring certainty; it will bring two other important ingredients to which many of your Lordships have referred today. The first of these is transparency. Justice will be seen to be done. The second is that it will give the opportunity to both the Attorney-General and the serviceman in question to explain, and make submissions about, what is in the public interest.

In my view, that factor is of even greater assistance to the noble and learned Lord than it would be to the serviceman, because the noble and learned Lord will inevitably face criticism, as many of your Lordships have said, about being influenced by political factors. We all accept that he has never been influenced by such factors in taking decisions during the time that he has been in office; but he will undoubtedly be accused of being so. Such a public hearing in front of a High Court judge will give him the opportunity to demonstrate that he is influenced purely by the wider public interest, as explained by the noble Lord, Lord Thomas of Gresford.

Many other issues have been discussed in the debate. In my submission those concerning the rules of engagement—the importance of the principle that as long as a serviceman sticks to the rules of engagement he will not be subject to prosecution—and the wider questions about the adequacy of resources devoted to investigations by the military authorities have a particular importance in overall consideration of these issues. Your Lordships' House is extremely fortunate in that, very soon, the Armed Forces Bill will be before us. Perhaps we will have an opportunity, at that time, to consider not only the proposal of the noble Lord, Lord Campbell of Alloway, in the form of an amendment to the Bill, but other possible solutions to the difficulties of certainty and morale which have been so eloquently expressed by so many of your Lordships today.

Photo of Lord Goldsmith Lord Goldsmith Attorney General, Law Officers' Department, Attorney General (Law Officers) 1:31 pm, 16th February 2006

My Lords, I, too, welcome the fact that the noble Lord, Lord Campbell of Alloway, has initiated this debate. It has been a very constructive debate. It is necessary for me to deal still with one or two matters in relation to the past but I want to say something also about the future because I detect a strong sense of agreement on where we need to go. I shall come back to that.

I am grateful to the noble Lord, Lord Kingsland, for mentioning the meeting to which I invited Peers who were interested in this debate, which took place just over a week ago. I found that very constructive and I am grateful to those noble Lords and noble and gallant Lords who attended.

I want to make one or two important points on which I hope there is common ground. First, this House and this Government have huge admiration for our Armed Forces. I share very much in the pride that the people of this country have for our troops who have served with such distinction, bravery and ability not just in Iraq but in other places in the world. No Minister of this Government would want to do anything which undermined the effectiveness of our Armed Services.

Secondly, I hope that my next point is common ground in this House—we all agree that members of our Armed Forces, like everyone else, must be subject to the rule of law, and that there cannot be exceptions to that. Where there are credible accusations of criminal behaviour, it is clearly right that they should be investigated and where there is sufficient evidence to prosecute, they should be prosecuted.

Thirdly, I am glad that in the course of this debate generally it has been accepted that decisions to prosecute servicemen or servicewomen have not been politically motivated or driven by political correctness. I have said before, General Sir Mike Jackson has said before, as the noble Lord, Lord Garden, pointed out in evidence to the Select Committee on the Armed Forces Bill, Major General Howell and the Chiefs of Staff all said the same thing—those accusations are untrue. I shall come back to the significance of those statements. I very much welcome the endorsement of the position. If the noble Lord, Lord Campbell of Alloway, will forgive my saying so, I noted that, notwithstanding his generous statements about me, which he has made before, he said that people need to know that decisions are made in the public interest and are not motivated by the political interests of the Government. That is absolutely right; the political interests of the Government do not come into this at all. The letter to which he referred—he has referred to it before; as he knows, I had not seen it at the time—was not about placating human rights interest groups but about making a point of importance, which is that credibility in our justice system depends on decisions being taken by independent persons. My noble friend Lord Moonie rightly took that one stage further by saying that if we want—as I certainly do—to ensure that no British serviceman or servicewoman ever appears before the International Criminal Court—though I strongly support the existence of that court—we need to demonstrate that we have a system which is capable of investigating and, where appropriate, dealing with allegations of criminality. That is important. I believe that we have such a system, which is why I do not believe we will see our servicemen or servicewomen in that court.

On the specific points that have been raised, I wish to say a few words about two cases, the Trooper Williams case, which was referred to by a number of noble Lords, and the Corporal Evans case, which was referred to by the noble and learned Lord, Lord Lyell of Markyate, and touched on by the noble Lord, Lord Thomas of Gresford. I want to put those cases in context because sometimes one might get the impression from the media that a vast number of cases are presently being prosecuted or that a vast number of cases are being brought into the civilian jurisdiction.

As Major General Howell said in his evidence to the Select Committee, there have been only 12 cases involving 43 accused brought to the Army Prosecuting Authority in which there were allegations of offences of murder, manslaughter or serious abuse of detainees. Those cases comprise a very small number of the nearly 80,000 troops who have served in Iraq, and with conspicuous ability, courage and respect for the rule of law. The Army Prosecuting Authority decided to proceed to trial in only four of those 12 cases. In a number of those other cases, where it was decided not to proceed to trial, decisions had been made in a matter of seconds in difficult situations. In those cases, mistakes were made resulting in someone who was not the enemy being killed or injured. Notwithstanding that, the prosecuting authority rightly did not proceed with those cases. In one of the cases that was proceeded with the accused were convicted—the so-called Camp Bread Basket case. The second was the Evans case, to which I shall come back. The third and fourth trials are due to take place in the future and therefore it is not appropriate for me to say anything about those. I need to refer to only two other cases involving service personnel which have not been dealt with under the military system. One is the Trooper Williams case and the other is a case in which charges have not yet been brought but is currently—as I believe is public knowledge—under consideration by the Crown Prosecution Service. Those are the only two cases which have been brought—or potentially brought—within the civilian system.

What is the position with the Trooper Williams case? Some noble Lords have talked about this case as involving a choice by me between military and civilian jurisdiction. That is not the fact. The situation on that case was that charges had been dismissed by a commanding officer without the decision of an independent prosecutor.

Under the terms of the Army Act, he could not then be put on trial by the military system, but it is clear from Section 133 of the Army Act that that did not mean that the civilian jurisdiction was removed. That point was debated before Mrs Justice Hallett when she heard the application in that case and she upheld the position that civilian jurisdiction was not removed. There was no question of a choice between the two; the only available route, if there was to be a prosecution at that stage, was using the civilian court. The matter was referred to me by the director of Army Legal Services at the request of the Adjutant-General, who did so following discussions with the Chief of General Staff and the Commander-in-Chief at land. They believed that the case should be referred to me and that a wrong decision had been made. I do not want to go into the details of the case because it is absolutely right, given what has happened, that this young man and the corporal who was the other man involved, whose view of the incident was enormously influential in the case being brought, should be able to put all this behind them.

I think I can leave it by saying, so that there is no doubt about it, that the learned judge, Mrs Justice Hallett heard substantive application which dealt with two issues. The first was that the case should not go ahead precisely because, it was argued, it was unfair, it was wrong, it was an abuse for the case to go ahead in circumstances where there had already been a decision by the commanding officer not to proceed and because of the delay. She considered those arguments but concluded that that was not a reason not to go ahead with the case. Secondly, she was asked to look at the evidence, which she did in detail. She heard evidence from senior officers who had served in Iraq about the operational circumstances and she concluded that there was sufficient evidence to put before a jury to convict of murder. So the case was looked at in considerable detail. When I come in to deal with the proposal of the noble Lord, Lord Campbell of Alloway, that those matters should go before a High Court judge at some stage, it is right to recall that this did go before a High Court judge. She considered all the arguments and concluded that it was right and proper to proceed but that it was for the prosecutors to decide whether they would do so. I will not go into more detail of the circumstances in which the Director of Public Prosecutions took the decision not to proceed with the case.

The question, posed by the noble Lord, Lord Kingsland, arises: what is the power of the Attorney-General? First, as has been noted—and my noble friend Lord Moonie explained the background to this—I have superintendence responsibility not just to the Army Prosecuting Authority but also to the other two authorities; I see the prosecuting authority for the Royal Air Force and for the Navy. So I am not absolutely sure that the advice that the noble Earl, Lord Attlee, had in mind to offer to others to go to another service will achieve his objective—it is the same system. Let us leave that where it is.

The question arises: what to do in circumstances of concurrent jurisdiction? Concurrent jurisdiction arises in three circumstances. First, there are many hundreds of cases each year in the United Kingdom where there is concurrent jurisdiction. Service men and women commit or allegedly commit offences, sometimes only against military law, but sometimes against the civil law as well, and the question has to be decided in those cases: where do they proceed? Hundreds of times each year, the United Kingdom military and civil police and the prosecuting authorities decide whether those offences should be tried in the military or the civil courts. In each of those cases they apply, without apparent difficulty, guidance set out in the Queen's regulations and they discuss that matter between them. The proposal of the noble Lord, Lord Campbell, might suggest that in each of those cases an application might need to be made before a High Court judge. That cannot conceivably be right.

Secondly, there are cases where our troops are stationed in a country such as Germany where, again, matters take place that are an offence against German law or whatever the local jurisdiction is. There is an arrangement there between the military authority and the civil authority as to what should happen in those circumstances. The principle is that the civilian authority has primacy, but waiver of jurisdiction agreements generally allow the military authorities to operate.

Thirdly, in respect of very few offences—only serious offences such as murder, manslaughter and breaches of the Geneva Conventions—the United Kingdom courts have jurisdiction if they are committed by a British subject wherever they take place. That is the narrow category of case of which Trooper Williams was an example.

Who decides in those circumstances which should be the jurisdiction? When I started in office nearly five years ago, the prosecuting authorities told me that it was their practice to bring those matters to the Attorney-General for a decision and that they had been brought for a decision to predecessors of mine. Secondly, as I noted in the debate in the House of Lords to which the noble Lord, Lord Kingsland, referred, regarding the important case of Boyd, Hastie, Spear and others, the House of Lords, particularly the noble and learned Lord, Lord Rodger of Earlsferry, said that in cases of overlapping jurisdiction it was for the civilian authorities to decide. I am the ultimate civilian authority in relation to criminal law in England and Wales.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Constitutional Affairs, Shadow Lord Chancellor, Parliament

My Lords, I apologise to the noble and learned Lord and am grateful to him for giving way. We do not dispute the noble and learned Lord's interpretation of the case of R v Boyd. That case referred to a situation where proceedings were initiated. The case of Trooper Williams is quite different. In the course of a proceeding that was already initiated, the noble and learned Lord gave advice in his supervisory role, or decided—I think "decided" was the word that he had used in an earlier statement of what happened—that that case should be transferred from the military to the civilian jurisdiction. That is an entirely different situation.

Photo of Lord Goldsmith Lord Goldsmith Attorney General, Law Officers' Department, Attorney General (Law Officers)

My Lords, it was not transferred from the military jurisdiction because the effect of the Army Act was that as the commanding Army officer had dismissed the charge, the case could not proceed through the military system. That was the whole point. There it is and I want to move on.

I must say a word about the Evans case, which was raised by the noble and learned Lord, Lord Lyell of Markyate. Given the time and the points that I still want to make, I need to write to the noble and learned Lord about that case. I want to emphasise the following points. First, it was not a case that was strictly brought under the code for Crown prosecutors, because it was a military prosecution in a court martial, and was not brought in a civilian court. Secondly, I am assured by the Army Prosecuting Authority that it carefully considered the strength of the case and received advice from independent leading counsel that supported its view. Thirdly, it often happens when cases come to court—goodness me, that is one of the reasons we have a justice system—that evidence which looked acceptable at one stage turns out not to be acceptable. It is much better that the courts decide that, than leaving it to prosecutors, however eminent, to make that decision. Fourthly, the Judge Advocate General said that there was sufficient evidence that there had been an assault, that a man had died in the course of it, and that that had happened as a result of something done by someone within Corporal Evans's group. The issue upon which he thought that the case could not go any further was whether there was acceptable evidence of joint enterprise. That was a narrow but critical point in the case.

Photo of Lord Lyell of Markyate Lord Lyell of Markyate Conservative

My Lords, I appreciate that the noble and learned Lord has very little time, but one of the points in the code for Crown prosecutors is that not only are you obliged to look at what is on paper, but you are expected to evaluate it. I hope that the noble and learned Lord will take that into account.

Photo of Lord Goldsmith Lord Goldsmith Attorney General, Law Officers' Department, Attorney General (Law Officers)

My Lords, I absolutely agree. I am assured that they did evaluate it. The words used by the Judge Advocate General are "refer to papers", but that is not the way, as it were, it is put to me.

I have considerable reservations about the specific proposal put by the noble Lord, Lord Campbell. First, it is in my view the responsibility of the Attorney-General, as the ultimate civil responsibility, to make a decision where a decision falls to be made; it is not a matter for the court. Secondly, decisions on whether prosecutions should be brought and, if so, in which forum are made on the basis of the evidence and the public interest; they are matters primarily for the prosecuting authority to determine. I do not know of any case where a decision would be made to prosecute on the public interest ground and the court would feel that it was in a position to take a different view. It might from time to time say, "Do you really think it right to proceed with this case, Mr So-and-so?" but it would be for the prosecution to make that decision.

Thirdly, as I have indicated, there are routinely hundreds of cases each year where concurrent jurisdiction decisions are being made. It cannot properly or sensibly be suggested that High Court judges should be involved. Fourthly, though, it is open to the accused to challenge the prosecution, as indeed Trooper Williams did in this case, both on the ground that it was not right to proceed and on the ground that the evidence was not there. We know what Mrs Justice Hallett decided. Finally, I understand the important question raised about the military understanding of those who make the decision. If I may respectfully say so, one does not add anything to that by taking the decision of a High Court judge.

I will conclude, if noble Lords will just allow me a moment, by saying this. Noble Lords have raised important issues with which I agree about the quality of investigation and about delay. I take those issues very seriously and have raised them with all the service prosecuting authorities and discussed them with the Judge Advocate General. I believe that important provisions in the Armed Forces Bill will help in that respect—we will have an opportunity to debate those at a later stage. Important issues have also been raised about the quality of the prosecution system as a whole.

I hope that the way forward now is to put behind us accusations of political correctness and political interference, which I fear are, as my noble friend Lord Corbett said, only helping when publicised to fuel concerns within the Armed Forces and among those who might join the Armed Forces—we could well do without that. Let us put those accusations behind us and all now work together to achieve those things on which we agree—a quality and independent system of justice with robust, professional investigators, with robust, professional decisions being made about whether prosecutions should be taken and with prosecutions being done within a reasonable time. That is what I want to work towards.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative 1:53 pm, 16th February 2006

My Lords, very sincerely I thank all noble Lords who have contributed to this debate, which has been good-humoured and very constructive. Certain parts of the construction would not appeal to the noble and learned Lord, Lord Goldsmith, but one or two building blocks are left standing and there is one, of course, to which my noble friend Lord Kingsland referred, that will not go away. That is the core of the substance of the proposal, which was spoken to by my noble and learned friend Lord Mackay of Clashfern within, I think, a minute and a half's speech. He took the main point, or the essence, which will not go away. As my noble friend Lord Kingsland rightly said, that will have to be considered by the House on another occasion, and everything that has been said in this Motion today will be of the greatest possible assistance, certainly to me.

On the related matter, of course I am concerned with the narrow category of cases to which the noble and learned Lord referred. Like my noble friend Lord Kingsland, I am surprised that the noble and learned Lord, Lord Goldsmith, would not be grateful to have the questions of whether it is a matter of public interest or whether any form of political interest is involved decided by a judge because that would totally remove any unhappy or unacceptable thoughts or assertions. I cannot see why there should be any objection to that, and I can see every reason why it should be decided by a judge in the very few cases in which it arises. In those cases, which are important, it is only fair and just that the man or woman and the regiment should have a fair opportunity of objection.

I thank my noble and learned friends Lord Mayhew of Twysden and Lord Lyell of Markyate for their experience, having served as Attorney-General, and for what they said, which, when read, will I think convince people that, frankly, things are not all right. The noble and learned Lord, Lord Goldsmith, thinks that they are all right. He thinks that in fact there would be some form of derogation of great importance from his authority, but that would not be the case. What is proposed is only in relation to the transfer of very important cases, which is being done, has been done and, with respect, should not be done in future. I thank all noble Lords and beg leave to withdraw the Motion for Papers.

Motion for Papers, by leave, withdrawn.