Amendment 3

Overseas Operations (Service Personnel and Veterans) Bill - Committee (1st Day) – in the House of Lords at 4:00 pm on 9 March 2021.

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Lord Falconer of Thoroton:

Moved by Lord Falconer of Thoroton

3: Clause 2, leave out Clause 2 and insert the following new Clause—“Ability to conduct a fair trial The principle referred to in section 1(1) is that a relevant prosecutor making a decision to which that section applies may determine that proceedings should be brought against the person for the offence, or, as the case may be, that the proceedings against the person for the offence should be continued, only if the prosecutor has reasonable grounds for believing that the fair trial of the person has not been materially prejudiced by the time elapsed since the alleged conduct took place.”Member’s explanatory statementThis new Clause replaces the presumption against prosecution with a requirement on a prosecutor deciding whether to bring or continue a prosecution to consider whether the passage of time has materially prejudiced the prospective defendant’s chance of a fair trial.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice), Shadow Attorney General

My Lords, in this group I shall address Amendments 3, 5, 6, 17 and 28. This group seeks, in a variety of ways, to deal with a problem that the Minister identified in her helpful concluding remarks on the last group—namely, stopping the endless shoddy reinvestigations, because that is the real problem.

Since the year 2000 there have been 27 prosecutions in relation to Iraq and Afghanistan. The Ministry of Defence gave evidence to the Joint Committee on Human Rights, which led to its ninth report, dealing with this Bill. The Bill team co-ordinator—I think that was his exact title—Mr Damian Parmenter, did not identify as the problem that the wrong decisions had been made in relation to prosecutions. He identified that the problem was with the reinvestigations, as did Mr Mercer in the other place and Judge Blackett. We need to address the issue directly, not indirectly. The question that I had asked and was waiting most keenly to be answered by the Minister was how the Bill dealt with this presumption—and answer came there none from the Minister, I would submit. If the issue is not the decision about prosecution but the endless process of investigation, this Bill does not deal with it.

These amendments actively seek to deal with this problem. Amendments 3, 5 and 28, in the name of my noble friend Lord Tunnicliffe, in effect seek to do three things. First, they remove the presumption against prosecution after five years. They say instead that after five years the prosecutor must have regard to whether there can be a fair trial, given the time elapsed. Any reasonable prosecutor would consider that anyway, but it is right to make that explicit.

What is more, my noble friend’s group of amendments keeps in the considerations that the Bill already has—namely, the effect on the prospective defendant of a war situation, and the fact that the passage of time will have affected memories—and adds a third consideration, one that everyone would agree with, of what has been the quality and duration of the relevant investigation. In other words, if the quality and duration had been poor, that would militate against prosecution. So instead of there being a presumption against, the prosecutor is focused on the question of whether there can be a fair trial after five years, having regard to the very same considerations that the Government would wish them to have regard to, but also to the quality and duration of the relevant investigations.

Amendment 28, which comes after Clause 12, also provides that once an investigation is over and concludes that there should not be a prosecution, a reinvestigation can take place only if

“compelling new evidence has become available” and

“an allocated judge advocate determines that the totality of the evidence against the accused is sufficiently strong”.

It has, therefore, to be compelling evidence to justify a new investigation.

I think all noble Lords have the greatest respect for the noble Baroness, Lady Goldie. We are incredibly keen to get a solution to the problem that the noble Lord, Lord Lancaster, and the noble Lord, Lord West of Spithead, referred to. The proposals made by my noble friend Lord Tunnicliffe, and indeed those from the noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Smith, basically say that after six months you need permission from an appropriate authority to go on and, when you come to the end of the investigation and decide not to prosecute, you need permission from an appropriate authority to reopen the investigation. These amendments are dealing with the problem, which is not the decisions made in the 27 cases but the stop-start cloud hanging over military personnel for years and years. I beg to move.

Photo of Lord Thomas of Cwmgiedd Lord Thomas of Cwmgiedd Chair, Consolidation, &c., Bills (Joint Committee), Chair, Consolidation, &c., Bills (Joint Committee) 4:15, 9 March 2021

My Lords, I speak to Amendment 6. Its purpose is simple—that the decision that the prosecutor makes takes into account the quality, thoroughness, independence and accountability of the investigation. It may be said—as appears from the Minister’s letter—that these matters are being looked at by Sir Richard Henriques in the review that he is conducting. No doubt the detail of all this can be gone into at that time—for example, how independence is to be safeguarded and accountability achieved. No doubt we will need to look at the position in other states. All that is for the future.

However, this Bill is being brought forward now. One matter that must be addressed now is that prosecutors, in deciding whether to continue, have to take into account the quality of the investigation in the respects I have set out in the amendment. I have put this forward based on my own experience of three cases that came before me when I was a judge. In the military context—and the civilian context is exactly the same—they pointed to the importance of thorough, well-resourced investigations.

The first case related to the deaths of 24 people in what is now Malaysia during the communist insurgency in 1948, which came back to the courts in 2011. That very unhappy series of events came back because the initial investigation was not thorough, a subsequent investigation was stopped before it was completed and, by the time the matter came before the courts, there was clear evidence that the original explanation of what had happened—namely, that these persons killed had been shot trying to escape—had been given by soldiers on instructions and that 24 people were killed in cold blood.

The second illustration relates to invents in Iraq and what happened in numerous cases, the most significant of which is the death of Baha Mousa. That is a paradigm example of how a poor investigation can be so terrible that it sometimes takes a very long time to see what went wrong.

The third and perhaps more surprising example is the conviction of Sergeant Blackman for shooting a member of the Taliban. When it originally came before the court martial, there had not been a sufficiently proper investigation of the circumstances, the stresses he underwent and his perception of the support he got from his command. That came out only afterwards and was one of the matters that, as appears from the judgment of the Court of Appeal, led to his conviction being reduced to manslaughter.

The thoroughness and independence of the investigation are critical in any decision to prosecute. A similar reflection can be obtained from ordinary cases; where things have gone wrong or there is a problem, it is the investigation. It is important that an investigation is fair—that is why it is listed—and thorough. And it should be fair in both senses: to the accused and to those who say a crime has been committed.

Independence is of equal importance. Any detailed consideration of the Malay case to which I referred and of the judgment of the Court of Appeal in the Blackman case shows how independence and accountability are also important. Therefore, what must be taken into account as a matter of principle—not of detail, that is for later—are these matters relating to the investigation. It may be said, “Well, things have got a lot better”. However, we all know that even the most well-organised body can make mistakes in the conduct of an investigation, and accountability and independence need to be of a very high level in certain types of case.

I am putting forward this amendment to show that this nation has regard to the covenant and the support it is necessary to give to our Armed Forces, but also to show that we must be seen to do justice, because the doing of justice is equally important. The quality, thoroughness, independence and accountability of the original investigation, if there has been one, or of the more recent one, should be at the forefront of the prosecutor’s decision.

Photo of Baroness Smith of Newnham Baroness Smith of Newnham Liberal Democrat Spokesperson (Defence), Liberal Democrat Lords Spokesperson (Defence)

My Lords, as I said in my comments on the first group of amendments, the vagaries of parliamentary procedure mean that in some ways the groups of amendments are being debated in a less than helpful order. I hope that this group of amendments and the suite of proposals will reassure the noble Lords, Lord West of Spithead and Lord Lancaster, and others who had any concerns that perhaps supporters of the first group might be seeking to eviscerate the Bill in its entirety.

This suite of amendments is intended to be constructive. I will speak predominantly to Amendment 17, in the name of my noble friend Lord Thomas of Gresford and myself, and Amendment 28. They are both about investigations. If the purpose of the Bill is to stop unnecessary investigations and investigations being brought many years later, these two amendments in particular seek in clear and specific ways to give substance to the Government’s stated aims.

Amendment 17 gives a very clear outline of what could be done in terms of investigations: how they should be taken forward and, after they are completed, moved to prosecution. We have not heard huge numbers of veterans saying they have been prosecuted many times, but we have heard concerns about people being investigated and never getting closure. Amendment 17 gives a very clear outline of how investigations could be dealt with.

Amendment 28, in the names of the noble Lord, Lord Tunnicliffe, and the noble and gallant Lord, Lord Boyce, puts limitations on reinvestigation. That surely goes to the heart of what the Government say that they wish to do. If the Government really wish to have the best legislation to serve their own stated aims and fulfil the needs and expectations of current service personnel and veterans, could they please consider these amendments?

In your Lordships’ House, the Minister often feels the need to say that, however laudable the goals of the amendments are, they do not quite fit the approach that the Government want to take. If the Minister does not feel able to support the detail of the amendments, might she consider coming back with some government proposals on how investigations and reinvestigations could be dealt with in a way that would enable the Bill to do what it says on the tin?

Photo of Lord Lancaster of Kimbolton Lord Lancaster of Kimbolton Conservative

My Lords, it is a pleasure to contribute to this group. I am particularly grateful to the noble and learned Lord, Lord Falconer, for the clarity with which he introduced these amendments.

I turn first to Amendment 3, which effectively seeks to remove Clause 2. That clause, the “presumption against prosecution”, is very powerful. I of course accept that this may not have the legal force it implies to some laymen, not least because of the other measures in the Bill, but it does indicate a very clear change of direction. If one of the aims of this Bill is to offer reassurance to our service personnel and veterans, this is a very powerful clause.

Amendment 3 seeks to delete this clause and effectively replace it with a guarantee of a fair trial. As the noble and learned Lord, Lord Falconer, said, this would happen as a matter of course. I have never met a service man or woman whose concern has been that they will not receive a fair trial in the United Kingdom. So, on the face of it, it does not seem to be a particularly good trade. Removing a presumption against prosecution from Clause 2 and replacing it with a fair trial does not send a particularly powerful message—but I do understand why it is being proposed.

The amendments on reinvestigation are a bit of a mixed bag. The measures in Part 1 of the Bill do not have a direct impact on repeated investigations—credible allegations will continue to be investigated—but I am concerned that the amendments relating to investigations do not account for the lessons that we have learned from Iraq and Afghanistan, as raised by the noble and learned Lord, Lord Thomas, and the noble Baroness, Lady Smith.

As I mentioned at Second Reading, having been Minister for the Armed Forces for a number of years, I witnessed and recognised that the quality of investigations, as highlighted in this debate, improved significantly, particularly in the latter stages of IHAT and, even more importantly, during Operation Northmoor on the investigations in Afghanistan. The thoroughness of those investigations and the improvement in their quality proved vital, in the collection of evidence and documentation, in helping to prevent further reinvestigations, because the evidence was already there. It is important to take the necessary steps to try to ensure that any future incidents are reported and appropriately investigated at the time, reducing the risk for our personnel of historic investigations and particularly reinvestigations, as I said.

I have some sympathy with Amendment 28 and its call for the earlier involvement of a judge advocate, based in part, I believe, on the evidence given to the committee by Judge Blackett, a man I have worked with and have enormous respect for. This and others, such as Amendment 18 on minor offences, which we will discuss later, are genuine attempts to relieve pressure and increase the effectiveness of the service justice system. I hope that my noble friend will look at them seriously; if not, as the noble Baroness, Lady Smith, said, perhaps the Government will consider coming back on how some of these ideas could be incorporated into the Bill.

I sense that, over time, prosecutors should be able to advise police earlier in the process as to whether these new statutory requirements would be met in a particular case and whether investigations are likely to be worth continuing, with the obvious intention of ending investigations earlier where it is clear that there is no case to pursue. While I recognise that the review by Sir Richard Henriques will not revisit past investigations or prosecution decisions but focus on the future, allowing the consideration of options for strengthening internal processes and skills while ensuring that our Armed Forces continue to uphold the highest standards of conduct when serving on complex and demanding operations around the world, I hope that it will help to build on the lessons learned to ensure that allegations are taken forward in a timely manner, providing reassurance to victims, witnesses and suspects alike. The risk of justice delayed, justice denied applies to the subjects of complaints in addition to those who make them.

Photo of Lord Browne of Ladyton Lord Browne of Ladyton Labour 4:30, 9 March 2021

My Lords, it is a pleasure to follow the noble Lord, Lord Lancaster of Kimbolton. He brings a valuable perspective to our deliberations. I welcome his contribution and agree with some of it, as will become apparent.

My position on this Bill is essentially that so clearly set out by my noble and learned friend Lord Falconer of Thoroton in his speech on the previous group. I agree with him that this group contains a range of amendments that are aimed at the true source of the problem that the Government have in their sights. I agree with the points that he made, so there will be little point in repeating them. However, to repeat what I said at Second Reading,

“the Bill does not resolve the problem of repeated and prolonged investigations because the Government have chosen to frame the issue as a legal problem, when the truth is that it is a problem about the timeliness and quality of investigations.”—[Official Report, 20/1/21; col. 1207.]

I begin the meat of my contribution with reference to the letter that we received last week from the Minister—for whom I share the regard expressed by others in this debate; I thank her for the letter—seven paragraphs of which sought to persuade us that this Bill would not be improved by specifically addressing investigations and implied that doing so might be counterproductive and unhelpful. The letter even employed the word “danger”; I infer from that that she thought it might be dangerous too. Expecting that the content of her letter will serve as a template for her response to this set of amendments, I want to test its argument.

As we have heard, few criminal prosecutions arising from the wars in Iraq and Afghanistan or from recent overseas operations have in fact been brought against service personnel. None, as far as I am aware, is in the pipeline or anticipated. I encourage the noble Baroness to point to any criminal case that should not have been pursued, if she can identify one, as I suspect she can. Given that context, it is heroic on the Government’s part—to say the least—to attempt to justify the need for legislation against the legal process of prosecution when no history of unjustified prosecutions exists.

This is the more so because, when Ministers are asked what justifies this legislation, their consistent response is to point to a cycle of unjustified investigations into unjustified allegations against soldiers. This Bill will not stop that. In her letter of 26 February, the noble Baroness wisely does not claim that it will. Rather, while expressly accepting the need for continued improvement in investigations—I accept that significant improvements have been made—she sets out an argument for how the Bill might eventually improve them, to encourage those of us who are more inclined to argue for investigation legislation and prosecution legislation. This seems a rather odd argument, so I quote it. She says that

“while the Bill does not contain measures that would have a direct impact on the conduct of investigations … we have included measures in the Bill that may have an indirect impact.”

Surely it is better to legislate for steps that will directly impact the problem than to hope that, indirectly or incidentally, measures in the Bill, while not solving the problem, might in the course of time dilute it.

While I have great respect for the noble Baroness, as I have said, I regret that the paragraphs headed “criminal measures and investigations” in her letter do not provide a justification for this legislation, devoid as it is of any overt attempt to address the real problem. It is no answer to this criticism that, for further improvements to the investigative and prosecutorial process, we should wait for the outcome of the review by Sir Richard Henriques to

“complement this Bill in further reducing the uncertainty for Service personnel about investigations.”

In any case, is there not already a service report from last February, elements of which could have been included here and are not?

Further, it is difficult to be persuaded given what the Minister Johnny Mercer said in a Guardian podcast in 2019. This is not just any Minister—he is responsible for the passage of this Bill. Comprehensively, he set out the problems in that podcast, saying that

“one of the biggest problems … was the military’s inability to investigate itself … and the standard of those investigations … If those investigations were done properly … we probably wouldn’t be here today.”

When the noble Baroness responds, could she address the content of that podcast? At Second Reading I sought to tempt her to do so, but she did not. Can she explain why an explanation of the cause of the problem that was good enough for Johnny Mercer in 2019 should be ignored by your Lordships’ House today, and can she justify those seven paragraphs of her letter?

Also, the failings and imposition of shoddy further investigations on earlier investigations were not brought about in many circumstances by those set out in the letter from the noble Baroness; they were brought about by the arguments put forward in litigation that had its roots in the wars in Iraq and Afghanistan, where it was successfully argued that insufficient inquiries had been made into credible allegations of abuse at the relevant time. Had there been competent criminal inquiries within a reasonable period of time of the allegations, it surely would have been much more likely that the victims would have received justice and those who had been unfairly accused would have been fully exonerated within a reasonable period of the allegations.

This is a view held by many current and former members of the Armed Forces and one of the many reasons, as I understand it, why Judge Advocate-General Jeff Blackett has expressed serious concerns about the Bill. The Director of Service Prosecutions, essentially agreeing with the 2019 version of Johnny Mercer’s analysis, recognised that it is the lack of prompt investigations at the time that lies at the heart of the issue.

If the Government are not going to engage with the real problem when it is obvious and identified by a diverse group of people with expertise and experience in this area, it is the duty of your Lordships’ House to amend the Bill to do just that. That is what these amendments seek to do: they are designed to ensure prompt, independent investigations into criminal allegations. Their absence from the Bill is fatal to its purpose. The acceptance of these amendments is in the interests of victims and of our military. The experience that too many of them have gone through compels us to put in place a system where complaints are investigated properly and dealt with within a reasonable amount of time. That ought to be our priority.

Photo of Lord Boyce Lord Boyce Crossbench

My Lords, it is a pleasure to follow the noble Lord, Lord Browne, on this because I agree with the thrust of his comments. The Bill sets out to make statutory provision about legal proceedings for our Armed Forces when they are or have been engaged in overseas operations, which, of course, is a very laudable aim. However, the Bill’s significant emphasis on the presumption against prosecution as a way of relieving some of the stress of legal proceedings is misplaced. It is the investigation and then the reinvestigation process that so wears people down. A prosecution may even be a form of relief when it comes.

Photo of Viscount Younger of Leckie Viscount Younger of Leckie Lord in Waiting (HM Household) (Whip)

I am sorry to interrupt the noble and gallant Lord, but we cannot hear him very well. We shall come back to him later in the debate.

Photo of Lord Russell of Liverpool Lord Russell of Liverpool Deputy Chairman of Committees

Lord Boyce, we will come back to you later. I now call the noble and learned Lord, Lord Hope of Craighead.

Photo of Lord Hope of Craighead Lord Hope of Craighead Judge

My Lords, I spent four years at an earlier stage in my career as a prosecutor in Scotland. I was one of the Lord Advocate’s relatively small team of Crown counsel, known as his advocate deputes. For much of that time, the Lord Advocate was the noble and learned Lord, Lord Mackay of Clashfern. It is a real pleasure to see him taking part in our proceedings this afternoon. It was part of my job to take decisions under his authority as to whether or not a prosecution should be brought, and to conduct the prosecution if it was decided that it should proceed. I therefore have some insight into how these decisions are taken.

Of course, there are differences between my job then and what we are contemplating now. I was working in Scotland, under its own system of criminal law, about 40 years ago. While nothing much was actually written down then, there were some well-understood principles to guide us. Much of this was based on the fact that we were acting in the public interest. We had to balance the interests of justice against the accused’s right to a fair trial. Within those broad concepts, there was room for a variety of other factors that we would take into account, guided by common sense and what we had learned by experience.

That having been said, I acknowledge that in today’s world there is the need for a more formalised system of rules. That helps to achieve consistency in decision-making, and it helps to reassure the public that these important decisions are soundly based. In the context of this Bill, I acknowledge that “the public” must include service personnel serving or who have served in operations overseas. After all, reassurance to them is what this Bill is all about.

That brings me to Amendment 3, and afterwards to Amendments 5, 6 and 28. The wording of Amendment 3 does not come as any surprise to me. It relates to the ability to conduct a fair trial, and makes a proposition that hardly needs to be said. As the noble Lord, Lord Lancaster of Kimbolton, said, this principle applies as a matter of course. I cannot imagine that the proposition would have escaped my attention had I been responsible for taking these decisions, but of course the real point of Amendment 3 is to challenge the presumption and replace it with something else which has equivalent force, removing the hard edge of presumption.

On the whole, I am uneasy about a presumption that applies after a particular time limit. Cases vary and the facts differ from case to case; what might be absolutely right in one case could be very unfortunate in another. There is a real difference, however, between the presumption in Clause 3, which uses the word “exceptional”, and the word “materially”, which is the key word in the amendment. It is a much softer alternative. I am uneasy as to whether it really is an adequate replacement for the presumption if the aim is to get rid of the presumption and replace it with something of equal force.

Amendments 5 and 6 do add more, especially by reference to the duration of the investigations and the standards to be applied. An important aspect of these two amendments is the undoubted need to address a problem that has caused great concern, as others have said. The points that they raise are, perhaps, not directly related to the need for a fair trial and, therefore, would not have immediately sprung to my mind as a prosecutor, but they have at their heart the interests of fairness to the person whose conduct is under scrutiny. I therefore support the proposition that these should be written into the prosecutors’ rulebook. The quality of the investigations, as the noble and learned Lord, Lord Thomas of Cwmgiedd, said in his very forceful speech, do need to be carefully assessed and taken into account.

That brings me to Amendment 28, which I also support. The tradition in which I was brought up was firmly against the resurrection of a prosecution after an acquittal, or where an assurance had been given to the accused that no proceedings would be brought. We have to accept, however, that there are cases where compelling new evidence, such as that revealed by DNA testing, requires that further steps be taken. This amendment deserves very careful consideration and strikes the right balance. The new evidence needs to be compelling—as indeed it should—and it needs to be assessed in the light of the totality of the evidence by a very skilled judge. It serves the broader aim of improving the quality of the investigations and the time taken to conduct them. The prospect that it may well do so persuades me that that amendment should be supported.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour 4:45, 9 March 2021

My Lords, I will not seek to replicate the eloquence and experience of noble and noble and learned Lords, including noble friends who have spoken before me. Instead, I will take on the challenge of addressing the noble Lord, Lord Lancaster, directly, because he is the person with whom I most disagree. From his comments in the previous group, I think he is particularly concerned about lawyers in this context. Perhaps he shares some of the concerns of his colleagues in the other place about warfare and a lack of warmth and respect for our Armed Forces.

I would like to reply to him in the following way in case it helps us develop some common ground in scrutinising this legislation. For pretty much the whole of my career as a human rights lawyer and campaigner, I have been accused—I would say falsely—of being soft on crime, soft on those suspected of crime and soft on those accused of crime. I would say that I am not soft: I just believe that people should be protected from false accusations and charges by due process, and that a miscarriage of justice—a wrongful conviction —delivers more, not fewer, victims. That has been my view, whether the person accused is in civilian life or in uniform, so I have not given up—nor have other lawyers in this debate or in the country at large—on the jealous protection of due process just because the people who are accused may be members of our military.

The concerns expressed by everyone on this group of amendments, and many on the earlier group, are about this part of the Bill addressing prosecutions—which have not been a problem—instead of investigations. That is why the noble Baroness, Lady Smith, wished that we could have got to the meat—the heart—of the debate sooner, but that is not in the natural order of things. Legislators, as opposed to Governments, are not in a position to do what is really required, which is to redesign and devote investment to a robust investigative system that is suitably independent, swift and resourced. Instead, we have these amendments, which probe what fair and robust investigations would look like to safeguard —I stress, safeguard—military personnel from the concerns that they have expressed over many years from the shadow that hangs over them. That is why the amendments are well put, if only in the first instance as probing.

The noble Lord, Lord Lancaster, said that he did not really see the value of Amendment 3, in the name of my noble friend Lord Tunnicliffe and the noble Lord, Lord Thomas of Gresford—who spoke so ably earlier on—because it would replace Clause 2, which is about prosecutions being “exceptional”, with a new, perhaps more convoluted form of words, which he might think is trees and not wood, about the dangers of being “materially prejudiced” by the passage of time. “Exceptional” is not desperately helpful as a new test when prosecutions have been so truly exceptional up to now. Prosecutions have not been a problem. No one is suggesting that lots of vexatious prosecutions have been a problem but merely that people have been worried about them because of shoddy, lengthy and delayed investigations. The status quo is for prosecutions to be quite exceptional. We are not seeing very much by way of guidance to prosecutors in the current Clause 2, which says that such prosecutions, as part of a triple lock, should be exceptional.

Further, we still have a Human Rights Act, and this legislation has to be predicated on the fact that that will continue—certainly, CHIS legislation was tightly predicated on that proposition. There has been case law during the tenure of the Human Rights Act showing that, if it is necessary to do so to comply with human rights, “exceptional” can be read as something that is much more routine. If, as some of us believe, this legislation, unamended, would give rise to violations of victims’ human rights, “exceptional” in the current Clause 2 would have to be construed by courts as something that is quite possibly less than exceptional and therefore not the position that the noble Lord, Lord Lancaster, would like. Amendment 3 as proposed by my noble friend Lord Tunnicliffe and the noble Lord, Lord Thomas of Gresford, is much more precise about what is sought to be avoided in the interests of the accused, which is a test that they not be materially prejudiced by the time elapsed. We are supposedly here to reassure armed personnel, who we know are very concerned about time elapsing, and their chances of a fair trial being prejudiced by that, because of the shoddy, delayed and repeat investigations that we have seen.

If I were serving in the military, I would take much greater comfort from protections in relation to these investigations in general, but, if we are going to look at provisions of this kind—which I do not support, because I do not support the presumption against prosecution—this concept of being materially prejudiced by the passage of time, through no fault of my own, should give far greater comfort to me as an accused than would the word “exceptional”, which could become devoid of content.

Photo of Lord Anderson of Ipswich Lord Anderson of Ipswich Crossbench

My Lords, when the Minister introduced this Bill at Second Reading, she said that she detected broad sympathy with its objectives. If she meant the objective of protecting our veterans against repeated and delayed reinvestigations for which there is no new or compelling reason, I am quite sure she was right. The noble Lord, Lord Dannatt, mentioned Major Bob Campbell, as has the noble Lord, Lord Faulks, today. Major Campbell was investigated multiple times over 17 years in relation to the death of an Iraqi teenager—eight times according to the noble Lord, Lord Dannatt, and 11 times according to the noble Lord, Lord Faulks—before being finally exonerated last year by an inquiry led by the noble and learned Baroness, Lady Hallett.

That multiplicity of investigations is something that surely no noble Lord would wish to defend, although the fact that the ICC prosecutor looked carefully at the case and decided not to proceed only because there had been a thorough investigation by the state should be a warning against any complacency that we can weaken our standards of investigation while still keeping the ICC at bay.

Amendment 28 seeks to attack the problem of multiple investigations directly by injecting an element of independent quality control into the investigations process. It would require further investigations to be conditional on compelling new evidence emerging and on an allocated judge advocate considering the totality of the evidence to be sufficiently strong. Like the Henriques review, which I welcome, Amendment 28 has the advantage of straightforwardly addressing the issue of repeated inconclusive investigations. I would, however, voice two reservations, with ICC-proofing in mind. First, is a judge advocate a sufficiently independent figure to apply the filter? Secondly, a high bar is set by the requirement of “compelling new evidence”, a bar which one would not normally expect to be surmounted without the conclusion of precisely the further investigation for which this test would be a precondition. Perhaps I might suggest “there is a compelling reason” as more realistic wording for proposed new subsection (2)(a).

Amendment 17 seeks to address slow investigations. Proposed new subsections (3) and (5) would put some time limits into the process. That, again, strikes me as a solution which, whether appropriate or not in all its detail, is at least directed to a real problem. Let us take the case of Baha Mousa, who died in British custody in 2003 after being hooded, deprived of food and water, and beaten, sustaining at least 93 injuries. The first round of prosecutions, to which the noble Lord, Lord Lancaster of Kimbolton, referred earlier, was characterised by a closing of ranks and achieved only a single conviction, in 2007, on a guilty plea by a corporal to a charge of inhumane conduct. There followed a three-year public inquiry, led by Sir William Gage, which in its three-volume report of September 2011 made detailed findings about the circumstances of Baha Mousa’s death and identified 19 soldiers directly involved in his abuse. The Iraq Historical Allegations Team was tasked in May 2012 to review that report with a view to assessing whether more could be done to bring those responsible to justice.

A year later, in May 2013, a Divisional Court led by my noble and learned friend Lord Thomas commented in the Ali Zaki Mousa (No. 2) judgment:

“There plainly is a pressing need for a decision to be made very soon as to whether any prosecutions are to be brought”, adding that

“the delay in making decisions in respect of prosecutions concerning those responsible for the Iraqis who died in custody is a source of increasing concern”.

Yet more than two years after that, in June 2015, it fell to Mr Justice Leggatt to record in the Al-Saadoon case that a team of 13 people were still working on the Baha Mousa case and that the investigation was now expected to take until December 2016 to complete. I believe that, in the end, no further prosecution was brought.

This does not seem to me to be a case in which the test for prosecution should have been made harder to satisfy five years after the incident in 2008; the damning findings of the public inquiry would make that a difficult position to maintain. However, it surely is a case in which much greater speed was desirable, particularly after the public inquiry had reported in such detail. I look forward to hearing what the Minister has to say about the speed of the investigative process and whether there might be value in some injection of discipline as to timing, whether as contemplated by Amendment 17 or otherwise.

Amendments 5 and 6 strike me as more in the nature of damage limitation. One of the unsatisfactory things about the presumption against prosecution after five years is that it risks incentivising those who would spin out or frustrate a valid investigation. These amendments seek to reduce that danger by requiring prosecutors to give weight to the quality and duration of relevant investigations; so far as they go, I support them.

On their own, however, they do not remove the broader misgivings that many noble Lords have expressed about the presumption against prosecution. Those misgivings, which I broadly share, would be substantially reduced by Amendment 3, which would replace the presumption against prosecution with a more anodyne requirement to consider whether the passage of time has materially prejudiced the chance of a fair trial. Its force lies not so much in what it puts in as in what it takes out.

The question as yet unresolved in my mind is how far it is appropriate for this House to go in relation to these difficult and interlocking issues: whether it would be right for us to take the heart out of Part 1, as Amendment 3, albeit elegantly, would do, or whether we should aim less ambitiously, but still significantly, to incentivise better investigations, as the other amendments in this group seek to do, and to ensure in accordance with Amendment 14—which we shall come on to discuss—that, for the protection of our own service personnel, Part 1 will not apply to crimes within the jurisdiction of the International Criminal Court.

Photo of Lord Parkinson of Whitley Bay Lord Parkinson of Whitley Bay Lord in Waiting (HM Household) (Whip)

The noble Lord should now continue and we will see how well we can hear him.

Photo of Lord Boyce Lord Boyce Crossbench

My Lords, this Bill sets out to make better provision on legal proceedings for our Armed Forces when they are, or have been, engaged in overseas operations. This is a very laudable aim, but the Bill’s significant emphasis on presumption against prosecution as a way of relieving some of the stress of legal proceedings is misplaced. It is the investigation and reinvestigation process that so wears people down, and prosecution, when it comes, may even be a form of relief. The noble and learned Lord, Lord Mackay, alluded to this matter of waiting in the last group of amendments.

Anyway, we should bear in mind that, even when the presumption is in place, there is no total lifting of the threat of prosecution after five years. As the Minister has told us, this can still happen if the Attorney-General sees fit. Furthermore, there could be the spectre of an even longer investigative process if the case falls into the hands of the ICC. I know that the matter of the ICC has been well covered this afternoon, and that the Minister has sought to reassure us on this point, but I am afraid that I am not convinced. Nor it seems is the ICC, which apparently remains unconvinced by any assurances that the Government may have tried to make in defence of the Bill.

This is by the way, because, as I have mentioned, it is the investigation process that needs primarily to be addressed: to be sharpened up to ensure that it is not a fishing expedition, that there is value in pursuing the matter under consideration, that it is constrained in length, and that reinvestigations are launched only after the most careful judicial oversight. The noble and learned Lord, Lord Falconer, has captured all this rather well, as indeed have other noble Lords. It is for these reasons and others that I support Amendments 5 and 28, to which I have put my name, and, indeed, other amendments in this group. I concur with much of what other noble Lords have eloquently said on the matter of investigations; I will spare your Lordships a repeat of all that has gone before in this group.

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

My Lords, the problem of investigations—as well as of late and inadequate investigations—should be addressed and the process sharpened up. The noble and gallant Lord, Lord Boyce, told us this a moment ago and I thoroughly agree with him. The problems have been very clearly outlined by the noble and learned Lord, Lord Falconer of Thoroton. I echo the noble and learned Lord, Lord Thomas of Cwmgiedd, who emphasised that justice must be done based on thorough and prompt investigation. The noble Lord, Lord Lancaster of Kimbolton, is sure that investigations have improved in recent years; I hope that that is true.

I stress first of all the inherent difficulties of investigations into alleged conduct arising out of overseas operations. The noble Lord, Lord Browne of Ladyton, believes that they should be timely and of quality—of course they should. In the United Kingdom, most crimes are investigated by one or more of the 45 or so police forces within their area of operations. Local police forces can readily pull in extra investigatory resources, including scientific investigations, if they need them.

By contrast, investigations by the military police may occur anywhere in the world. Co-operation by the civilian population or even the civilian police cannot be guaranteed. There are usually significant linguistic and cultural problems in the collection of statements from witnesses. It may be that a complainant—a foreign national—has his own axe to grind. The noble Lord, Lord Anderson, reminded me, with the Baha Mousa case, of another problem, where the judge said in his closing remarks that there had been a closing of ranks; that is a problem with the natural desire of soldiers to support each other.

There can be security problems. When in 2005 it was decided that an inspection of a dusty Iraq village was desirable, a whole company or more of 200 soldiers was deployed to provide protection for the dozen or so sheepish lawyers who attended. I was not one of them: the MoD was not prepared to insure the silks in the case. There is no immediate access to the support that a civilian police force in this country might expect. It follows that delays are inherent and inevitable, but they are not desirable. Yet we can read the whole of this Bill and find nothing which deals with the essential preliminary to any prosecution: a thorough, prompt investigation.

This group of amendments suggests various pathways to ensuring that the length and efficiency of an investigation is controlled. Amendment 17, in my name and that of my noble friend Lady Smith, sets out a practical route for putting the investigation under the control of the Director of Service Prosecutions. An investigator must, within six months of the complaint, provide a preliminary report to the DSP of the progress of his investigation. As may well happen informally in any event, the DSP may give guidance on the lines of inquiry which would be appropriate.

In my amendment, if, on an assessment of all the papers, the DSP sees no future in the investigation, he would have the power to terminate it then and there. If he orders the investigation to continue, there would be regular reporting to him of the progress of the inquiry, again with the possibility of him calling a halt. I have discussed this with the former Judge Advocate-General, Judge Blackett. He is of the view that control of the investigation is highly desirable but that the power to stop an investigation should rest with a designated judge, not with the DSP. A moment ago, the noble Lord, Lord Anderson, suggested that this might not be satisfactory and that a more independent person should be involved in supervising an investigation. I am not really worried about what way one approaches it, but there should be control of an investigation to ensure that it is proceeding at a proper pace and in a proper direction. I think there was a modicum of support for that amendment even from the noble Lord, Lord Lancaster of Kimbolton. Since the DSP has the undoubted power to decide not to prosecute on the conclusion of an investigation, I do not see any problem with the DSP controlling the steps leading up to the final report.

I have also added my name to Amendment 3 on the basis that, at the very least, in deciding whether to prosecute, the DSP should have in the forefront of his mind whether a fair trial has been materially prejudiced by delay or by the quality of the investigation. I have in the past made submissions in court that a fair trial is impossible through delay, pre-trial publicity or matters of that sort, but never with success. The noble and learned Lord, Lord Hope, criticised Amendment 3 as too soft. I do not think so, if it is given a statutory formulation. It would be given weight as an important consideration for the DSP at the time of his decision whether to commence proceedings at all. I submitted earlier this afternoon that a presumption against prosecution is not the way forward. Whether a fair trial is possible should be an important consideration before the prosecution commences.

Photo of Baroness Goldie Baroness Goldie Lord in Waiting (HM Household) (Whip), The Minister of State, Ministry of Defence

My Lords, once again we have all been struck by the quality of the debate, which has penetrated issues that are legitimately at the heart of the Bill. Noble Lords who have raised issues related to the Bill are rightly seeking clarification and reassurance about what different components of the Bill mean, and particularly where the whole issue of investigations lies in relation to it.

I will begin with Amendment 3, moved by the noble and learned Lord, Lord Falconer of Thoroton. The Government’s intention with the measures that we have introduced in Part 1 of the Bill is to provide demonstrable reassurance to our service personnel and veterans. It is not only a worthy aspiration but a necessary one. It is a demonstrable reassurance in relation to the threat of legal proceedings arising from alleged events occurring many years earlier on operations overseas. This has meant balancing the need to introduce protective measures for service personnel and veterans and remaining compliant with our domestic and international obligations.

On the one hand, the measures set a high threshold for a prosecutor to determine that a case should be prosecuted, as well as ensuring that the adverse impact of overseas operations will be given particular weight in favour of the serviceperson or veteran; on the other hand, as I have previously said, the measures do not and cannot act as an amnesty or statute of limitations, do not fetter the prosecutor’s discretion in making a decision to prosecute, and are compliant with international law. I believe that we have achieved this balance, this equilibrium, in the combination of Clause 2, the presumption, and Clause 3, the matters to be given particular weight. We are providing the additional protection that our service personnel and veterans so greatly deserve, while ensuring that in exceptional circumstances individuals can still be prosecuted for alleged offences.

Amendment 3, tabled by the noble Lord, Lord Tunnicliffe, and moved by the noble and learned Lord, Lord Falconer of Thoroton, would, in effect, replace the presumption against prosecution with a requirement that the prosecutor, when deciding whether or not to prosecute a case, should consider only whether the passage of time has materially prejudiced the prospective defendant’s chance of a fair trial. However you cut and dice that amendment, this is a much-diminished reassurance to our Armed Forces personnel from what is currently in the Bill. My noble friend Lord Lancaster of Kimbolton and the noble and learned Lord, Lord Hope of Craighead, offered helpful observations in that respect.

The amendment not only removes the high threshold of the presumption but seeks to replace it with an assessment of whether or not the passage of time would prejudice the chance of a fair trial. Almost certainly, such a criterion is likely already to be considered by the prosecutor when applying the existing evidential and public interest tests. The Bill also already addresses the potentially negative effects of the passage of time, by requiring a prosecutor to give particular weight to the public interest in finality, in Clause 3(2)(b).

We are not suggesting—I am grateful to the noble Baroness, Lady Chakrabarti, for acknowledging this—that service personnel or veterans have been subject to unfair trials. However, we are seeking to highlight not only the difficulties but the adverse impacts on our personnel of pursuing allegations of historical criminal offences with protracted and repeated investigations. Justice delayed is often justice denied, for defendants and victims.

As I said, I believe that Clauses 2 and 3 provide the appropriate balance between victims’ rights and access to justice on the one hand, and a fair and deserved level of protection for our service personnel and veterans on the other. Removing the presumption, as the amendment proposes, would remove this balance, with the diminished reassurance to our Armed Forces personnel. I therefore urge the noble and learned Lord to withdraw his amendment.

Amendment 5, tabled by the noble Lord, Lord Tunnicliffe, and the noble and gallant Lord, Lord Boyce, seeks to add an additional factor to Clause 3. Specifically, it aims to ensure that the quality and duration of relevant investigations are given weight by a prosecutor where this tends against prosecution. I can see that this addition is well intended, but it is not necessary, and I will endeavour to explain why.

At the point at which the prosecutor will be considering the factors in Clause 3, any investigations will most likely have been completed. The service police already apply the evidence sufficiency test to determine whether a case should be referred to the prosecutor, so it is unlikely that a poorly run investigation would bring forward good enough evidence for the evidence sufficiency test to be met, and for the service police to determine that a case should be referred to the prosecutor. Even if the service police determine that the evidence sufficiency test has been met, the prosecutor will then apply the two-stage process: first, whether there is sufficient admissible evidence to establish a realistic prospect of conviction and, secondly, whether prosecution is in the public and service interest.

At this point, if there have been shortcomings in an investigation—for example, because of the complexity of the operational environment—evidence may be inadmissible due to the conditions in which it was gathered, or simply not available at all, and this may result in the prosecutor assessing that there is not a realistic prospect of conviction. While it is therefore reasonable to assume that a poorly run investigation is unlikely to meet the threshold for a prosecutor to determine that a case should be prosecuted, the same could equally be the case as a result of a comprehensive investigation, but where the evidence is simply not available or is deemed not to be sufficient.

As I appreciate the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Thomas of Gresford, will understand, this reflects the reality that an investigation on an overseas operation will inevitably be impacted by the operational context and the environment, and there are many reasons why the evidence, or the quality of the evidence required, may not be available and that delays may occur. This I why I submit that it is not simply a case of “good” or “bad” investigations. I think it is difficult to understand how a prosecutor could assess the quality of the investigation or whether the amount of time that it has taken for it to be completed is appropriate and then apply these assessments in practice.

I also ask noble Lords to recognise that all elements of the Armed Forces, including the service police, have come a long way since the early days of the Iraq conflict. Lessons have been learned. Processes, policies, training and education have all been updated to reflect the experiences of those early days and matters which have arisen since. We are continuing to work to secure assurance that our investigative capabilities are as good as they can be, and the commissioning of the review by Sir Richard Henriques is a clear commitment in this respect.

It is the Government’s view that Clause 3(2)(b) already addresses the issue of investigations in an appropriate way, in the context of the public interest in finality, and that a separate assessment of the adequacy of the investigation is neither appropriate nor required. In these circumstances, I would urge the noble and learned Lord, Lord Falconer of Thoroton, to withdraw the amendment.

Amendment 6, in the name of the noble and learned Lord, Lord Thomas of Cwmgiedd, also seeks to add an additional factor to Clause 3. More specifically, it aims to ensure that the standards and independence of relevant investigations are given particular weight by a relevant prosecutor where this tends against prosecution.

The noble and learned Lord, Lord Thomas of Cwmgiedd, said that our improvements in investigations are all in the future. With the greatest respect, I suggest that this is not the complete picture. As I have already said, all elements of the Armed Forces, including the service police, are continually improving the way in which they operate, so let me try to reassure the noble and learned Lord. At this point, I will also try to reassure the noble Lord, Lord Browne of Ladyton. He felt that my argument that the Bill could improve investigations was unconvincing, so I shall try again.

Let me be clear: I believe that investigations need to be thorough and robust, and there were flaws in the past. But there are two distinct issues here. The first is the investigations and what they find out, and the second is what a prosecutor does with the results of the investigation. I would suggest that these are different issues. I say to the noble Lord, Lord Browne of Ladyton, that it is the view of the Government that investigations have been and can still be improved, and, separately, that the unique position of the Armed Forces on overseas operations should be reflected in a clearer framework for the prosecution of historical allegations.

I will proceed with some of the improvements to investigations, because the noble Lord, Lord Thomas of Gresford, specifically posed questions on this. I have indicated some of the work that the service police have been doing, and that ongoing work has continued to increase the capability of the service police and to ensure that they are better placed to respond to future operations. The professionalism agenda on which the police have embarked includes but is not limited to: a greater alignment with civilian police training national standards, including the introduction of a national policing apprenticeship for all new service police entrants, and College of Policing accreditation via the professionalising in policing course; attachments to Home Office police forces to ensure skills currency; representation on the National Police Chiefs’ Council across the spectrum of strategic activity and sub-level working groups; refinement of service police doctrine to incorporate lessons learned from Iraq and Afghanistan; and, importantly, investment in technology, such as the introduction of body-worn cameras and protective mobility to enhance deployability. By way of example, in 2003 service police reports were still saved on floppy disks—who of us can even remember these?—in the desert, which is an indication of how much technology has changed in the intervening period.

In addition to these professional improvements, a duty to ensure the independence of the service police from the Armed Forces in relation to investigations was enshrined in law in 2011 with a new section in the Armed Forces Act 2006. This, and other changes implemented in the Armed Forces Act 2011, introduced significant changes to the relationship between the chain of command and the service police in respect of investigative decision-making, as well as strengthening the investigative independence of the service police.

Under Part 5 of the Armed Forces Act 2006, if commanding officers become aware of serious allegations or allegations of offences committed in specific prescribed circumstances, they are under a duty to make the service police aware. There are also obligations on the service police to consult the Director of Service Prosecutions where a decision is taken not to refer in certain types of investigations. Where the investigation reveals sufficient evidence of a serious offence, the service police are obliged to refer the case to the prosecutors. The provost marshals of the service police have a legal duty to ensure that all investigations are carried out free from improper interference. Finally, Her Majesty’s inspectors of constabulary inspect and report to the Secretary of State on the independence and effectiveness of investigations carried out by the service police.

I have dealt with this at some length, and I apologise if it has made for tedious listening, but I felt it was important to try to reassure the contributors to the debate, because many good points were made. I think that these points were made because of a genuine apprehension of weaknesses in the system. I have tried to illustrate that the system has probably improved out of all recognition, and that is before we even consider what Sir Richard Henriques may come up with in his review. But the commissioning of the review is a clear commitment to continue to seek improvement in these matters. I say to the noble and learned Lord, Lord Thomas of Cwmgiedd, that many improvements have been made.

As with Amendment 5, it is difficult to understand how a prosecutor could assess either the standard of the investigation or whether the service police have acted independently of the chain of command and then apply these assessments in practice. I have not been persuaded that a separate assessment of the standard and independence of the investigation is either appropriate or required. I would therefore respectfully ask the noble and learned Lord not to press his amendment.

Amendment 17 seeks to introduce timelines for the progress of investigations. This amendment was instigated by the noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Smith of Newnham. Again, I appreciate that the noble Lord and the noble Baroness are trying to be helpful, but this amendment, when dissected, raises issues which have to be examined. With the introduction of arbitrary and hard timelines for the progress of investigations, it seems to me that that does not take into account the wholly unique environment of an overseas operation and the challenges that this presents for investigations.

I stated previously that the Bill is not aimed at directly addressing service police investigations. These are subject to the review by Sir Richard Henriques. I am unclear why the noble Lord and the noble Baroness would wish to introduce such limitations on the investigative process. These are limitations which do not apply to service police investigations in the UK, nor to those conducted by civilian police forces. The challenges of conducting a robust and thorough investigation in a non-permissive and potentially kinetic environment are significant. As I said, they cannot be compared with the largely benign policing landscape of the UK, and nor should they have additional restrictions placed on them which are not faced by police investigations in the UK.

Current and future operations will probably see UK forces deploy at a smaller scale, with deployments potentially more remote and limited in duration. This will add even greater complexity to the operating environment for the service police, where access to real-life support and force protection is not a given, and access to any potential crime scene is likely to be fleeting. The complexity of investigations, frustrated by remote locations, harsh geography and a non-permissive environment, are just some of the challenges, not the least of which are access to witnesses and the fact that our own injured personnel may need medical treatment before making statements.

So this poses the question: would we really be comfortable closing down the investigative timeline in a way that may fail to exculpate our own forces, or provide much-needed closure to the families of deceased personnel? If that were to happen, would we really want to risk the ICC determining that we were unwilling or unable to properly investigate alleged offences on overseas operations, and then stepping in to do so?

I think I have dealt with the main issues. I submit that these measures would simply undermine the balance and well-established relationship between the service police and the prosecutor—a relationship, I might add, which also exists between the civil police and the Crown Prosecution Service, without the need for a member of the judiciary to be involved.

I have laid out an array of significant difficulties which this amendment raises and which I believe are not easily resolved. In these circumstances, I ask the noble Lord and the noble Baroness not to press their amendment.

This part of the Bill has dealt with some meaty issues, and the Government Whip is presenting me with a notice that says “Time is coming up”. However, in the circumstances, I will do something that does not come to me naturally and will ignore the Government Whip, because I really want to deal with the important issues raised in Amendment 28.

Amendment 28 is again tabled by the noble and learned Lord, Lord Falconer of Thoroton, and the noble and gallant Lord, Lord Boyce. Once again, I can see why the noble Lords have sought to try to support this part of the Bill and to be helpful. The amendment would give a new power to judge advocates to restrict police investigations. It would require a judge advocate to determine whether new—and existing—evidence brought forward is sufficient to allow the reinvestigation of service personnel for alleged offences of which they have previously been acquitted, or in circumstances where an earlier investigation had been ceased.

The supporters of the amendment feel that it could deal with repeated investigations. The noble Lord, Lord Anderson of Ipswich, described graphically the character of protracted investigations. However, again, I question whether this new clause is necessary. I also have concerns that this new clause would result in some unfortunate and unintended consequences.

Where a person has been acquitted of an offence relating to conduct on overseas operations, it is assumed that this envisages a situation where a person has been acquitted at a court martial. But it could also apply to a matter which was heard at a summary hearing in front of a commanding officer, following on from an investigation which did not involve the police. It also applies where a previous determination has been made that an investigation into an offence should cease.

The difficulty is that an investigation is a hard thing to define in law. It starts when inquiries begin and its purpose is to determine whether what little information you start with is credible and to gather more information and evidence in support of that. The process of finding out whether evidence is compelling is the investigation.

That is why I have difficulties with how, following a decision to cease an investigation, it can be determined that no further investigation—whether new or a continuation of the earlier investigation—can be commenced unless some form of compelling new evidence becomes available. The only way the police can determine whether this new evidence is compelling is to carry out an investigation—which, according to the terms of the amendment, they would not be allowed to do. We are getting into a circular issue here.

The new clause also proposes that no further investigation into the alleged conduct may be carried out unless an allocated judge advocate determines that the totality of the evidence against an accused—which presumably has had to come from some sort of investigation which the police are not allowed to conduct—is sufficiently strong that there is a real possibility that it would support a conviction.

This amendment, however well intended, introduces unforeseen consequences and certainly introduces restrictions and potential limitations on investigations. The intervention of a judge in the process of the investigation could interfere with the discourse between prosecutor and investigator. That is an important relationship, because it ensures that prosecutors are in a position to make prosecutorial decisions based on information which can be gleaned only from thorough investigations. It would be undesirable to fetter this discourse by introducing a third party—even someone as venerable as a judge advocate—into the existing process.

I have listened to eloquent and erudite arguments in support of this amendment, and I undertake to look again at the comments made in case I have misunderstood the arguments or have misapplied my own interpretation of what the amendment means. I shall look closely at the contributions which have been offered. In the meantime, I ask the noble and learned Lord to withdraw the amendment.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice), Shadow Attorney General 5:30, 9 March 2021

I am obliged for the detailed and very careful reply that the noble Baroness, Lady Goldie, gave, and I am particularly grateful to her for overriding instructions—that is the wrong word—given to her by the Government Whips. I am also appreciative of the very rich debate we have just had. I will draw attention to three particular interventions. First, my noble friend Lord Browne of Ladyton expressed the view that everybody subsequently expressed, including the Minister, that it is the lengthy investigations that we are trying to deal with here. Secondly, the noble and gallant Lord, Lord Boyce, made the point that the real evil here is investigation and reinvestigation; and, thirdly, my noble friend Lady Chakrabarti said, “Look, this presumption that the Government are relying on about exceptionality will not provide much protection when you see the low numbers of prosecutions that have been given.”

I earnestly ask the noble Baroness, Lady Goldie, to consider carefully the points that have been made in the course of this debate by everybody. I am increasingly concerned about the presumption. It does not do the trick, because it does not provide the reassurance that is required. It raises very problematic questions of international law, it does not deal with very many cases, and it risks bringing in the ICC. So it will not give the reassurance that the noble Baroness, Lady Goldie, and the noble Lord, Lord Lancaster, are looking for. There were signs that the noble Lord, Lord Lancaster, in supporting Amendment 28, might be beginning to support some of the proposals that we are making.

So I earnestly ask the noble Baroness to think again about this, because we are united in what we are trying to achieve, and the presumption in Clause 2 does not do it. Of course I beg leave to withdraw my amendment, but we will certainly return to these issues on Report, because this is the heart of the Bill.

Amendment 3 withdrawn.

Clause 2 agreed.

Photo of Baroness Fookes Baroness Fookes Deputy Chairman of Committees, Deputy Speaker (Lords)

We come to the group beginning with Amendment 4. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.

Clause 3: Matters to be given particular weight