Armed Forces: Serious Offences - Question

– in the House of Lords at 3:01 pm on 23rd October 2017.

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Photo of Lord Morris of Aberavon Lord Morris of Aberavon Labour 3:01 pm, 23rd October 2017

To ask Her Majesty’s Government, further to the answer by Earl Howe on 5 September (HL Deb, col 1828), what further consideration they have given to reviewing the Armed Forces Act 2006 to deal with serious offences committed by members of the armed forces.

Photo of Baroness Goldie Baroness Goldie Lord in Waiting (HM Household) (Whip), Baroness in Waiting (HM Household) (Whip)

My Lords, as explained in answer to the noble and learned Lord’s previous Question, the Armed Forces Act 2006 is kept under regular review, and the most recent Armed Forces Acts of 2011 and 2016 renewing those provisions made modest changes. In preparation for the next Armed Forces Bill in 2020, the Government have decided that the time is now right for an independent and more in-depth look at the service justice system so that we can be assured that it is as effective as it can be for the 21st century.

Photo of Lord Morris of Aberavon Lord Morris of Aberavon Labour

My Lords, I welcome the Minister’s reply. Should not the courts martial system be brought into line with the civil courts and give the right in serious cases such as murder and rape to be tried by jury with a judge appointed by the Lord Chief Justice, replacing the present hierarchical court system with its bare-majority verdicts, the size of which is secret, which is criticised by the Judge Advocate-General? Should we not fundamentally review the 2006 Act in consultation with the Lord Chief Justice and senior legal practitioners?

Photo of Baroness Goldie Baroness Goldie Lord in Waiting (HM Household) (Whip), Baroness in Waiting (HM Household) (Whip)

I thank the noble and learned Lord for raising two important points. On the question of referring all serious cases to the civilian police and courts, as he will be aware, the service justice system is capable of dealing with the most serious offences, and has done so. It has been held to be compliant with the ECHR for investigations and prosecutions both within the UK and abroad, but we are keen for the review to take a strategic look at all aspects of the service justice system, and this is one issue to be explored. He also raised the important issue of majority verdicts. We are aware that views have been expressed about this, particularly in this House. Although the system has been held to be compliant with law, the Government recognise that there are differing views about the system of majority verdicts, and this is one issue to be covered by the review.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat Shadow Attorney General

My Lords, I, too, welcome the Minister’s Answer and the prospect of a review. I want to ask her about the United Nations’ 2006 Decaux principles. On 7 June this year, the United Nations special rapporteur on the independence of judges and lawyers, in his report to the United Nations Human Rights Council, called on states to ensure that the jurisdiction of military tribunals is limited to military offences committed by active members of the military, in order to protect an individual’s ordinary rights to fair trial and due process. Does the Minister agree that Section 42 of the 2006 Act, which provides for military tribunals trying civil cases, is inconsistent with principle 8 of the Decaux principles: that military courts may try military personnel only for offences of a strictly military matter?

Photo of Baroness Goldie Baroness Goldie Lord in Waiting (HM Household) (Whip), Baroness in Waiting (HM Household) (Whip)

Can I thank the noble Lord for raising a very interesting point, which we will all take away and consider in detail before attempting to reply in detail? It is genuinely an interesting issue. One key aspect of Section 42 is the fact that it imports into service law any offence that is also an offence in civilian criminal law. That is extremely important when service personnel are serving abroad and commit civilian criminal offences that the civilian courts here do not have the power to deal with. I thank the noble Lord for raising a very important point.

Photo of Lord Tunnicliffe Lord Tunnicliffe Opposition Deputy Chief Whip (Lords), Shadow Spokesperson (Defence), Shadow Spokesperson (Treasury)

My Lords, I thank the Minister for her Answer. The concept of a very serious offence like murder not being tried by jury has made many of us uncomfortable. I am delighted that there will be a full review. I hope that there will be full consultation and that a wide variety of people will be involved, and I hope that the review will look at the particular problem of the boundary between murder and soldiers lawfully killing the Queen’s enemies. As we know, those have presented some of the most difficult cases over the years, and I hope that they will be included in the review, which I welcome.

Photo of Baroness Goldie Baroness Goldie Lord in Waiting (HM Household) (Whip), Baroness in Waiting (HM Household) (Whip)

I thank the noble Lord for his question. On the consultation process, the Government’s aim is that the service justice system mirrors, where possible, the provisions of the civilian criminal justice system. When the maintenance of operational effectiveness across the Armed Forces requires it, there may be differences from that system.

We are not conducting a public consultation but trying to ensure that the system is tweaked, if it needs tweaking, to ensure that we are in the best possible state to be in for the 21st century. But that does not preclude any interested parties from making representations to the Government on these issues, as and when they think it appropriate. The noble Lord raises a point that he might wish to consider presenting to the Government.

Photo of Lord Craig of Radley Lord Craig of Radley Crossbench

Given the intention of the Government to allow service on a part-time basis, would the military or civil police investigate an alleged crime committed by an individual while he is on his break from full-time service?

Photo of Baroness Goldie Baroness Goldie Lord in Waiting (HM Household) (Whip), Baroness in Waiting (HM Household) (Whip)

The noble and gallant Lord raises an interesting technical point. I am not sufficiently sure of my legal knowledge to respond to it with authority. Perhaps he would leave me to look at that and revert to him.

Photo of Viscount Slim Viscount Slim Crossbench

Should the Government not have a care that there is a danger in civilianising the military system, which has worked well over the years—and have a care also that the military will be judged in a civilian way, when civilians have no knowledge of military procedure or the military system in battle?

Photo of Baroness Goldie Baroness Goldie Lord in Waiting (HM Household) (Whip), Baroness in Waiting (HM Household) (Whip)

I reassure the noble Viscount that, as he is aware, a protocol is in existence between service and civilian prosecutors, which recognises that some cases are more appropriately dealt with in the service system and some are more appropriately dealt with in the civilian system, particularly those with civilian victims. The protocol recognises that that any offence can be dealt with by the service authorities. The main principle in deciding who acts is whether the offence has any civilian context, particularly a civilian victim.