Amendment 1

Overseas Operations (Service Personnel and Veterans) Bill - Report – in the House of Lords at 1:33 pm on 13 April 2021.

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Lord Tunnicliffe:

Moved by Lord Tunnicliffe

1: Clause 2, leave out Clause 2 and insert the following new Clause—“Ability to conduct a fair trialThe 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 Tunnicliffe Lord Tunnicliffe Opposition Deputy Chief Whip (Lords), Shadow Spokesperson (Defence), Shadow Spokesperson (Treasury), Shadow Minister (Transport)

My Lords, as we open the debate for the Report stage of the overseas operations Bill, I want to remind colleagues that, like many across this House, we remain determined to protect our troops from vexatious claims and shoddy investigations. We want it to be done in a way which directly tackles the problems head on, and which is in line with our international obligations. As I move Amendment 1 and speak to Amendment 6, it is with these aims clearly in mind.

I am sure that the Government will try to portray Amendment 1 as a wrecking amendment, but nothing is further from the truth. It aims to protect troops directly by removing the presumption and ensuring that prosecutors have regard to whether there can be a fair trial given the time allowed.

As drafted, the Bill is silent on the cycle of reinvestigations, and we cannot wait for the outcome of yet another MoD review before we deal with it directly. That is why we also fully support Amendment 6, which states, importantly, that there must be compelling evidence to justify a new investigation. It would place an effective framework around investigations, still allowing them to pursue new leads or witnesses when appropriate. This approach is complemented by Amendment 1, but we accept that Amendment 6 might be seen as the priority.

Ministers have identified problems with vexatious claims and shoddy investigations but are pursuing an indirect approach, and many colleagues do not understand why. We have the Bill in front of us now, so let us amend it now to solve the problems for good. I beg to move.

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

My Lords, I thought it would be interesting to look back at the Conservative Party’s manifesto for the 2019 election. It said that

“we will introduce new legislation to tackle the vexatious legal claims that undermine our Armed Forces and further incorporate the Armed Forces Covenant into law.”

You will note that nothing is said there about a presumption against prosecution or anything about the criminal law, so the proposals in this Bill have been dreamed up without consultation. Certainly, there was no consultation with the former Judge Advocate-General, Jeff Blackett, who is internationally respected for his expertise in this field. As far as I can ascertain, there was no consultation either with the Director of Service Prosecutions or any of his highly respected predecessors. How, incidentally, in the light of the manifesto commitment can the Government resist the amendment that we shall later discuss in the name of the noble Lord, Lord Dannatt, on the Armed Forces covenant?

The hole in this Bill is that it does not directly address the scandal of delayed investigations and reinvestigations of service personnel. Amendment 6 would fill that gap with a code of investigation procedures. Investigations are fraught with difficulty in overseas operations. They operate in an insecure environment; potential witnesses may be reluctant to speak; there are language and cultural difficulties; and forensic services of the quality to be found in the UK may be unavailable for pathological examinations, DNA sampling, fingerprints and so on. I recall a case from Iraq in which the body of an alleged victim had been buried on the same day, in accordance with Muslim custom, in a cemetery in Najaf which covers 1,500 acres. No Iraqi witness could pinpoint the exact place and, accordingly, there could be no pathological investigation of the cause of death—indeed, in that case, it was an issue as to whether anybody had been killed at all.

It is obvious, therefore, that investigations may be protracted. It is equally obvious that the possibility of prosecution cannot be held over a service man or woman indefinitely. There has to come a point where a decision is made: should this case proceed, or should it stop? Amendment 6 proposes a workable and practicable code in which the service police or other investigator is supervised and monitored by the Service Prosecuting Authority under the direction of the independent Director of Service Prosecutions. Within six months of the report of allegations to the service police, an investigator has to be satisfied that there is sufficient evidence of criminal conduct to refer the investigation to the SPA. Once he is so satisfied, he must make that report within 21 days, submitting his case papers to date for consideration.

Under the proposed subsection (4), the SPA has power to

“order the investigation to cease if it considers it unlikely that charges will be brought.”

Alternatively, the SPA will advise and direct the investigator on the issues he needs to clarify and the direction in which his inquiry should proceed. If the investigation proceeds, the code in Amendment 6 requires that it be reviewed by the SPA every three months, when a fresh decision will be made on whether to cease or proceed with the investigation. On its conclusion, the investigator must send his final report, with accompanying case papers, to the SPA.

The case cannot be reopened at the whim of the investigators. The consent of the Director of Service Prosecutions would have to be sought and granted only on the grounds that there is new and compelling evidence or information that might materially affect the previous decision to close the investigation and might lead to a charge being made. A decision to reopen would, of course, be challengeable by judicial review. As a final back-up, the Judge Advocate-General is given power to give practice directions for these procedures.

So there we have it: a code tailored for the particular circumstances and difficult environment of overseas operations. I shall be moving Amendment 6 in due course. But I also add my support to Amendment 1. The position of the DSP has evolved. Amendment 1 emphasises an important part of his role—considering the public and the service interest in deciding to prosecute and, namely, whether a fair trial might be prejudiced by delay.

The answer to the problem of delay is not to introduce the concept, novel to serious offences in the criminal law of this country, of presumption against prosecution after an arbitrary period of five years has elapsed. Let us take a likely scenario: an ex-soldier confesses to shooting a wounded prisoner, but no evidence emerges for 10 years because the “wall of silence” of his comrades —a phrase used by the trial judge in the case of Baha Musa—has protected him.

Blanket walls of silence appear in other contexts. I once prosecuted a prisoner and extracted a confession from a fellow prisoner of the abduction and murder of a little girl four years before. The first prisoner said nothing of the man’s confession for five years. But then he became an evangelical Christian and finally reported it to the prison governor. The Government say that for such a heinous crime as shooting a wounded prisoner, the presumption would probably be waived, but by whom? Who would decide whether the threshold of heinousness had been passed? If the presumption would be waived routinely so that every murder in theatre should be prosecuted, then murder as a crime should appear in the schedule to this Bill. But if that is resisted—if there are to be degrees of murder so that the presumption would be waived in one instance but not another—what are the criteria?

I turned to the Bill to see what factors are referred to. First, it is immaterial

“whether or not there is sufficient evidence to justify prosecution” according to Clause 1(2). Secondly, the status of the person killed is not a factor for consideration. As to whether the victim is a combatant or a civilian, captured or wounded, man, woman or child, no factors relating to the murdered person are mentioned in Clauses 1 to 3.

What the prosecutor must consider, however, is the adverse effect of operations on the perpetrator, the conditions he was exposed to and the strains and stresses of combat. But here is the most surprising thing: it is not the effect on the individual under suspicion that is considered—how he personally was affected by the exigencies of service, how he suffered from “shellshock”, to use the First World War phrase. It is not like the case of Sergeant Blackman, who remembered, after he had been convicted but in time for his appeal, that he had personally been suffering from stress, and his responsibility was thereby diminished. No; Clause 2(3) provides that

“the prosecutor must have regard to the exceptional demands and stresses to which members of Her Majesty’s forces are likely to be subject while deployed on overseas operations, regardless of their length of service, rank or personal resilience.”

The test is objective. The presumption against prosecution applies even if the personal resilience of the soldier who commits murder or a war crime is such that he is unaffected by the stresses of combat. It is a charter for the callous, psychopathic killer hiding in a military uniform.

Photo of Lord Boyce Lord Boyce Crossbench 1:45, 13 April 2021

My Lords, I shall speak to Amendment 6. The Bill sets out to make better provision about legal proceedings for our Armed Forces when they are or have been engaged on overseas operations. The Bill’s significant emphasis on presumption against prosecution as a way of relieving some of the stress of legal proceedings implies that that solves the problem. However, it is the investigation and reinvestigation process that is so debilitating and wears people down. Prosecution may even come as a form of relief. It is important to bear in mind that even when the presumption is in place, there is no total lifting of the threat of prosecution after five years. This can still happen if the Attorney-General sees fit.

However, that is all by the way. As I have mentioned, the investigation process needs to be addressed to ensure that it remains relevant, that a watchful, supervisory eye is kept on the process so that it does not drift, that there are timelines with which investigators have to comply and that reinvestigations are launched only after the most careful judicial oversight. Amendment 6 sets out to cover all these points, as was so well articulated by the noble Lord, Lord Thomas of Gresford. For that reason, it has my support.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

My Lords, I shall say something about Amendments 1 and 6. Before I do, I draw attention to a ministerial Statement that has been put in the Library about overseas operations in which the MoD indicates its support for service personnel in these situations. The Statement—I hope your Lordships have access to a copy of it—says that the Overseas Operations Bill was introduced

“to provide greater legal protections to Armed Forces personnel and veterans serving on military operations overseas. The Bill would provide a better … legal framework for dealing with allegations and claims arising from future overseas operations and recognising the unique burden and pressures placed on our service personnel.

As part of the debate on this Bill, there has rightly been a focus on the support which MoD provides to those personnel who may find themselves subject to investigations and prosecutions. We are grateful to right honourable and honourable Members of both Houses for the interest they have taken in this issue and their commitment to ensuring that service personnel and veterans who are impacted by historical allegations are properly supported.

As a matter of MoD policy, service personnel are entitled to legal guidance at public expense when they face criminal allegations that relate to actions taken during their service and where they were performing their duties. This principle is at the heart of the MOD’s approach to supporting our people and is enshrined in the relevant Defence Instruction Notices. It is a responsibility that the MOD takes extremely seriously, and we keep our policies under review to ensure that they are appropriate and tailored.

Since the early days of Iraq and Afghanistan, the Armed Forces have learned lessons on better resourcing and professionalising support to those involved in inquiries or investigations arising from operations, and the mechanisms for providing this support have been transformed in recent years. The way this is delivered and by whom will depend on the specific circumstances of the case, the point which has been reached in the proceedings and, most importantly, the needs of the individual concerned.

Any individual who is investigated by the Service Police is entitled to legal representation as well as the support of an Assisting Officer who can offer advice on the process and procedure and signpost welfare resources. The individual’s Commanding Officer and Chain of Command have overall responsibility for the person’s welfare and for ensuring access to the requisite support.

Individuals who are interviewed as suspects under caution will be entitled to free and independent legal advice for this stage of the investigation. Subsequently, legal funding for service personnel and veterans facing criminal allegations can either be provided through the Armed Forces Legal Aid Scheme (AFLAS) or through the Chain of Command.

Where the Chain of Command accepts funding responsibility this is means-test exempt and therefore no personal contribution will be required. The Armed Forces Criminal Legal Aid Authority (AFCLAA) will act as a conduit for the provision of publicly funded legal representation on behalf of the chain of command, including all aspects of financial and case management. However, if available evidence suggests the individual was doing something clearly outside the scope of their duty, then it would not be appropriate for that person to receive this Chain of Command funding.

All other serving personnel and veterans facing criminal proceedings prosecuted through the service justice system, and who are not covered by the Chain of Command funding, may apply for legal aid through the AFCLAA and may be required to make a personal contribution, determined by means testing, if funded through the Armed Forces Legal Aid Scheme. This is in line with civilian legal aid scheme.

There is an important exemption from the means testing requirement, which has been waived in criminal cases arising from our Iraq or Afghanistan operations heard in the Service Court. Separately, legal advice and support is also available whenever people are required to give evidence at inquests and inquiries and in litigation and this is co-ordinated by MOD.

We also recognise that for service personnel and veterans who are involved in these processes, legal guidance by itself is not enough. This is why we have developed a comprehensive package of welfare support to ensure we deliver on our commitment to offer ongoing support to veterans.

As part of delivering on this commitment, the Army Operational Legacy Branch (AOLB) was established in 2020 in order to coordinate the Army’s support to those involved in legacy cases. Fundamental to this is ensuring that welfare and legal support is provided to all service personnel and veterans involved in operational legacy processes. The AOLB provides a central point of contact and optimises the welfare network already in place through the Arms and Service Directorates and the network of Regimental Headquarters and Regimental Associations. Veterans UK are also closely engaged in providing support to veterans and, when required, the Veterans Welfare Service will allocate a welfare manager to support individual veterans. Although the AOLB has been established to provide an Army focus to legacy issues, the support it provides is extended to the other services.

This is provided in addition to the range of welfare and mental health support that is routinely offered to all our people. The potential impact of operations on a service person’s mental health is well recognised and there are policy and procedures in place to help manage and mitigate these impacts as far as possible. The MOD recognises that any operational deployment can result in the development of a medical or psychiatric condition and that service personnel may require help before, during and after deployment. All Armed Forces personnel are supported by dedicated and comprehensive mental health resources. Defence Mental Health Services are configured to provide community-based mental health care in line with national best practice.

In terms of support for those who have left the forces, veterans are able to access all NHS provided mental health services wherever they live in the country. As health is devolved and services have been developed according to local populations’ needs, service specification varies. This can mean bespoke veteran pathways or ensuring an awareness of veterans’ needs. All veterans will be seen on clinical need. What is important is that best practice is shared between the home nations and there are several forums in place to provide this.

The Office for Veterans’ Affairs works closely with the MOD and departments across government, the devolved Administrations, charities and academia to ensure the needs of veterans are met.”

I am sorry that that was a rather long but, I think, very comprehensive statement of what is required. Of course, it is not only applicable to operational situations overseas but is also important in reference to all the Armed Forces. It would therefore seem right that this kind of thing should be legislated for in the Armed Forces Bill when it comes along.

I turn briefly to Amendments 1 and 6 in light of that provision. In my submission, Amendment 1 departs from a very clear statement of the situation in which particular prosecutions should not start or be continued, towards a very vague one where the decision is put on the shoulders of the prosecutor, who must decide whether a fair trial is likely to be damaged by the delay.

I should have thought that primarily that kind of decision is for the tribunal, which has responsibility. The prosecutor will be responsible for prosecution, but he does not know, and cannot know, the full detail of the effect, if any, of the passage of time on the defence. Therefore, in my submission—apart from the fact that it is completely vague— you cannot tell when the investigations are going on, whether it is true or not. It is a very big and difficult thing to establish during the course of the investigations.

It is important to remember that what this Bill is trying to do in the provisions to which Amendment 1 relates is to ensure that the investigations are not dragged on for more than five years. The Bill provides a very considerable spur to the speed with which investigations are done in order to be effective. It is completely easy to define, in the sense that you can tell when you are doing the investigation whether it is five years since the incident. You do not need to be thinking about whether the time passing has damaged the possibility of a fair trial. Apart from anything else, it is not very easy for the person who is conducting the investigation to have a balanced view of the situation for the defence. In my submission, Amendment 1 is not an improvement on what is in the Bill already.

On Amendment 6, the provisions that are set out in the statement which I read indicate quite clearly that the situation that is provided is much better than what would be done by the sort of detail which is provided in Amendment 6. The whole system indicates, as set out in that statement, that the matter is dealt with as a detailed attachment to the particular case and that what is required in each particular case may be very different in one from another. Therefore, in my submission, Amendment 6 is not an improvement on the Bill and I do not think that there is room for, or need for, an elaborate system of care other than what is provided in detail by the statement that I have read.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour 2:00, 13 April 2021

My Lords, I wish to offer whole-hearted support to Amendments 1 and 6 which were tabled by the noble Lord, Lord Thomas of Gresford, and my noble and learned friend Lord Falconer of Thoroton. The noble and learned Lord, Lord Hope of Craighead, also put his name to Amendment 1, and the noble and gallant Lords, Lord Boyce and Lord Dannatt, put their names to Amendment 6.

First, I wish to say something about the statement to which the noble and learned Lord, Lord Mackay of Clashfern, has referred. I was going to comment on it later in the context of the new duty of care in Amendment 14, tabled by the noble Lord, Lord Dannatt, but as the noble and learned Lord, Lord Mackay, has taken the trouble to read the statement in full, and it is therefore no doubt fresh in the minds of noble Lords, perhaps this is a convenient moment to express two considerable concerns that I have in relation to the statement by the Secretary for Defence. The first is in relation to legal aid and the second is in relation to mental health support.

In relation to legal aid, there is a very serious ambiguity—perhaps not even an ambiguity, perhaps a straightforward gap—in the support that is being offered to service personnel in relation to legal aid. I refer your Lordships to the part of the passage that reads,

“where the chain of command accepts funding responsibility, this is means-test exempt and therefore no personal contribution will be required. The Armed Forces Criminal Legal Aid Authority will act as a conduit for the provision of publicly funded legal representation on behalf of the chain of command including all aspects of the financial and case management, however”—

I emphasise “however”—

“if available evidence suggests the individual was doing something clearly outside the scope of their duty then it would not be appropriate for that person to receive this chain-of-command funding.”

So this non-means-tested automatic funding that does not require a personal contribution is not available to personnel and veterans facing the gravest peril from investigation and prosecution. This is hardly comfort to those to whom this Bill is supposed to be addressed. It is those who face the gravest allegations who principle suggests should have the greatest legal support, for it is those who are facing charges that they were doing something clearly outside the scope of their duty who are losing sleep at night as they may face dishonourable discharge and very serious criminality and consequence. This is the very group who are being let down and denied automatic non-means-tested legal provision. I have to disagree with the noble and learned Lord, Lord Mackay, about the Defence Secretary’s statement offering very much comfort at all to serving Armed Forces personnel or indeed veterans for the reason I set out: those in greatest jeopardy are left with least protection by way of legal aid.

Secondly, in relation to mental health provision, we know and the statement makes clear that to put someone in harm’s way in these circumstances is almost automatically to expose them to great jeopardy in relation to their mental health. Here is an ambiguity rather than a clear gap because at various points in the passages of the statement referring to mental health provision there are caveats about “where needed” “pathways in the community”, “best practice” and “local population needs”. I do not know what these words mean and no doubt the Minister will be able to clarify them in a moment, but to me it looks as if, subject to signposting and pathways, these people are being left, broadly speaking, to take their chances in a Cinderella part of the NHS. It does not seem clear from this statement that all serving personnel and veterans are given automatic mental health support. It is all “subject to clinical needs” or “subject to local population needs” and all of those caveats. That is what I would have said later about the need for the duty of care in the amendment tabled by the noble Lord, Lord Dannatt.

Returning to Amendments 1 and 6, Amendment 6 and the proposed new clause seem to me to address exactly what the Bill was supposed to: the problem of delayed, shoddy and, therefore, repeated investigations, which cause so much concern to members of the Armed Forces and veterans. Tackling this head-on, with some comprehensive statutory provision to push investigations to be timely and adequate, is a very good idea. Of course, the amendment has very distinguished and gallant supporters.

In relation to Amendment 1, respectfully, I could not disagree with the noble and learned Lord, Lord Mackay, more than I do. It replaces the presumption against prosecution with a very common-sense consideration of fair trials and whether they have been compromised by the passage of time. The noble and learned Lord, Lord Mackay, says that you cannot expect a prosecutor to make those determinations and that it is not appropriate, but this is what prosecutors up and down the land do every day. It is completely within, and absolutely core to, a prosecutor’s duty to consider whether it is possible, in light of the passage of time and the possible deterioration of evidence, for the accused to have a fair trial. This would be crucial to both the evidential test and, indeed, the public interest test, which all prosecutors have to consider. If that is the case—if these are normal prosecutorial factors—this might lead some noble Lords to ask why they should be put in the Bill. They should be because we have been told repeatedly during the passage of the Bill to date that a lot of what is required is comfort—clear statutory comfort to personnel and veterans that they will not be let down by the system and that they will be protected.

Putting this fair trial consideration, and including the passage of time, alongside the new provisions offered on investigations is a very good idea. As others—the noble Lord, Lord Thomas, in particular—have said, the five-year rebuttable presumption is rebuttable. Perhaps with the triple lock it is very difficult to rebut that presumption, but it will still leave concerns in the minds of personnel and veterans that a lengthy or late investigation may lead to a prosecution. It is so much better to protect people in the way offered by those who tabled these amendments. It is a far greater protection against late, shoddy and repeated investigations than the so-called triple lock that is causing so much concern. Normally, when employers and people seek to protect those who have been under especial pressure at work and in their service, it is support, not immunity, that is offered. That is the common-sense approach offered in these amendments.

Photo of Lord Hope of Craighead Lord Hope of Craighead Judge

My Lords, I add my support to Amendment 1, to which I have put my name. As a former prosecutor, I do not think that the task it sets the prosecutor is likely to be all that difficult, given that it must proceed on the information available to the prosecutor at the time the decision has to be taken. It may be that the information is relatively slender at the very beginning, when he is considering whether to bring proceedings, but such as it may be, it is the information that he should take into account. If one considers the stage at which proceedings are continuing, which this clause also covers, he is likely to be in possession of a good deal more information. So I do not think that there is anything wrong in the wording of Amendment 1. The essence of it lies more in what it takes out than the simple wording of what it seeks to put in. What it takes out is the presumption. I have no difficulty with the way in which the presumption is expressed in Clause 2, but I do object to it in principle.

The interests of justice work both ways. Of course, one must have regard to the interests of the person against whom proceedings are contemplated or are in progress. But there are the interests of the complainant, too—the victim, as the noble Lord, Lord Thomas of Gresford, reminded us. In the ordinary course, the prosecutor’s decision-taking process is even-handed, with no bias towards one way or the other. Here it is being tipped one way, without regard to what this means for the complainant on the other side. There seems no room here for any regard to be had to the gravity of the offence or its consequences, and that makes me very uneasy. It is even more troubling where the proceedings are already in progress and the question is whether they should be continued. There is no guidance here at all. As the noble Lord, Lord Thomas, said, where are the criteria? For example, does it matter how far the proceedings have got? To apply the presumption to proceedings already under way, whatever stage they have reached, seems very odd.

Then there is the effect of the presumption on our treaty obligations. I refer in particular to the torture convention, which we will come to discuss with Amendment 3. As it happens, I do not have my name down to speak in that group, although I fully support that amendment, so perhaps I can take this opportunity to say something about it briefly, as the point is relevant here too. I expressed my strong feelings in Committee about the way that the Bill as it stands runs counter to the absolute and unqualified obligation on this country under the 1987 UN convention against torture to take jurisdiction against any alleged offender found within its territory. This is an international crime from which there is no safe haven. It seems to me that the practical effect of the presumption will be to derogate from the convention, which the convention itself does not permit. If it is applied, the member or former member of the armed services whom it is intended to benefit will have no assurance that he will be immune from prosecution in some other country which is a party to the convention. Taking a holiday in Spain, for example, could expose that person to that risk. For that to happen would be humiliating to our reputation as a county that stands by the rule of law. Agreeing to Amendment 3 would remove that objection but, as the Bill stands, it is a strong reason for objecting to the presumption.

Photo of Lord Morris of Aberavon Lord Morris of Aberavon Labour 2:15, 13 April 2021

My Lords, I speak briefly in support of Amendments 1 and 6. There is little I need to add to the words of my noble friend who moved Amendment 1 and the particularly forceful speech of the noble Lord, Lord Thomas of Gresford.

As a criminal law practitioner all my professional life, I spell out my concern that, whatever the circumstances, there must be a fair trial in accordance with the principles of our criminal law. Defendants can be materially prejudiced by the passage of time and, as my noble friend Lady Chakrabarti said, prosecutors take this into account every day in their decisions. Certainly, in authorising prosecutions that came within my particular field as Attorney-General, I took this into account as a prosecutor. This is my concern. I hope it is the concern of Her Majesty’s Government regarding the current backlog of criminal trials in our courts.

I will give a simple illustration of what can happen in practice. First, memories fail. Secondly, circumstances are embroidered, sometimes innocently. Ask two or three people for their recollection of a fairly simple set of circumstances, and they frequently vary. I have spent many happy hours in our courts pointing out discrepancies in the accounts of different witnesses of very simple circumstances. The deeper one dug, the greater the rewards. They were frequently meat and drink to a defence lawyer who did not have much greater ammunition.

I will mention rape trials as an example. Whenever the defences consent, in my experience, the chances of a London jury convicting when no complaint is made within three weeks are not high. This is a very serious matter, which we will have to address at some stage. Time is of the essence in seeing that justice is done to both complainant and defendant.

I hope that the drafters of the Bill, in particular this clause, have sufficient experience of the dangers of justice not being done when there has been a passage of time. I support these amendments and believe that they are sufficiently important to be put in the Bill.

Photo of Lord Thomas of Cwmgiedd Lord Thomas of Cwmgiedd Chair, Consolidation, &c., Bills (Joint Committee), Chair, Consolidation, &c., Bills (Joint Committee)

I support both Amendments 1 and 6. In the light of all that has been said, I need not add anything in respect of Amendment 1, but will make some brief remarks on Amendment 6. Investigating offences and prosecuting them are inextricably intertwined. To ensure fairness to all concerned—complainants, victims, defendants and prospective defendants—an integrated approach is essential.

By and large, in our civilian justice system, the CPS and police forces have, over the years, come to work very closely together to the benefit of all. In the military justice system, there can be no doubt that the creation of the post of DSP has, particularly through the work of the highly respected holders of that independent office, greatly improved the quality and fairness of service prosecutions. It is now clear that the conduct of investigations has given rise to most of the issues and, in that respect, reform is needed. This amendment is therefore greatly to be welcomed.

The amendment does not deal with instances in which there has been an error in failing to identify cases where there is evidence of criminal conduct but nothing has been done. It is not appropriate to address that at this stage; no doubt it can be covered when Sir Richard Henry Henriques has reported. However, in cases where the investigator has concluded that there is evidence of criminal conduct, the interposition and proposed role of the Director of Service Prosecutions should bring significant improvement.

In my experience of the military justice system, there are many reasons why delays in prosecution occur, but often the causes are lack of focus, insufficient concern about timeliness, and a lack of accountability—particularly the latter. It is clear that the delays that occurred in relation to Iraq arose in large part from these factors, although, as the Minister pointed out in Committee, there have been great improvements since and in the work of IHAT. The risks of a lack of focus, a failure to act with expedition and timeliness, and a lack of accountability remain, as they are endemic to any system. This clause should address those issues.

I will make one last observation. I particularly welcome the provision for the Judge Advocate-General to give practice directions to investigations of overseas operations. Although that would not be usual for a judge in the civilian system, the Judge Advocate-General has a unique role. This was particularly demonstrated by the highly successful and distinguished tenure of that office by Judge Blackett. When holder, he ensured that changes were made to keep the service justice system in line with modern procedure. The power to make practice directions for investigations is consistent with the Judge Advocate-General’s unique role and, I hope, will ensure that problems are promptly addressed as the way in which cases are investigated changes, with changes to the way in which matters should be done as well as the advent of technology.

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

My Lords, I support both amendments, but in particular Amendment 6 in the name of my noble friend Lord Thomas of Gresford. Both seek to focus on prosecution, but also deal with the issue that the Government stated at the outset that they wanted to deal with; that is, as my noble friend Lord Thomas of Gresford pointed out, vexatious claims. The way the Bill is presently drafted does little to deal with repeated investigations. These amendments, in particular Amendment 6, are intended to deal with precisely the problem that the Government say that they wish to deal with. I would be grateful if the Minister could explain to us how she feels that the Bill, as drafted, is going to do what the Government claim that they want to do, because nothing in the Bill is going to stop vexatious investigations.

These amendments are not intended to undermine the Bill. In moving Amendment 1, the noble Lord, Lord Tunnicliffe, said that the Government would perhaps think that it would rip the heart out of the Bill. Neither is intended to do that; they are intended to be helpful and ensure that vexatious and unnecessary prosecutions cease and that prosecutions are dealt with expeditiously, where appropriate. Unlike the noble and learned Lord, Lord Mackay of Clashfern, these Benches do not think that prosecutors will find it too difficult to do the job outlined for them in Amendment 1. I support the amendments, and we will call a vote on Amendment 6, as my noble friend Lord Thomas of Gresford pointed out earlier.

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

My Lords, first, I thank your Lordships for your contributions. As has been indicated, Amendment 1 seeks to 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.

I say as a general comment that my noble and learned friend Lord Mackay of Clashfern and the noble Baroness, Lady Chakrabarti, dwelled at length on the important matter of support for our Armed Forces, as covered by the Written Ministerial Statement tabled today. The noble Baroness raised specific issues which, with her indulgence, I propose to deal with when we debate Amendment 14 in the name of the noble Lord, Lord Dannatt.

I will explain why the Government are resisting Amendment 1. In doing so, I will cover much of what I said on this in Committee. First, we are not suggesting that service personnel or veterans have been subject to unfair trials. Our concerns have always been about the difficulties and adverse impacts on our personnel from pursuing allegations of historical criminal offences. Your Lordships are familiar with the character of such difficulties and adverse impacts—repeated inquiries and uncertainty hanging over the heads of our personnel for years as to whether any prosecution is to be brought.

Secondly, we are reassured that a person’s right to a fair trial—the nub of this amendment—is already protected in law by, among other safeguards, the Human Rights Act 1998 and Article 6 of the European Convention on Human Rights.

Thirdly, the amendment would remove the high threshold of the presumption against prosecution. We have specifically introduced this measure to provide the additional and overdue protection that we believe our service personnel and veterans so rightly deserve, while ensuring that, in exceptional circumstances, individuals who have done wrong can still be prosecuted for alleged offences.

Fourthly and lastly, Part 1 of the Bill 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).

The intention behind the measures the Government have introduced in Part 1 is to ensure that we help to provide reassurance to our service personnel and veterans 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 while remaining compliant with our domestic and international legal obligations. I accept that, as the noble and learned Lord, Lord Hope, argued, there may be different assessments of what may be perceived as issues of principle. The Government believe that the combination of Clauses 2 and 3 provides 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. This amendment, which would remove the presumption, would weaken that protection and undermine that balance.

The noble and learned Lord, Lord Hope, argued that the presumption is vague and unspecific. With the greatest respect, I do not agree. The concept of a presumption is widely understood in law, and it falls to facts and prosecutorial judgment as to whether the presumption is rebutted, whereas this amendment is in time undefined and in other content vague. I would therefore argue that it is itself unspecific and is an unhelpful substitute for the more clearly articulated and understood legal concept of a presumption.

Amendment 6 seeks to introduce artificial timelines for the progress of investigations and a power for the Judge Advocate-General to intervene to direct investigations. I say to the noble Lord, Lord Thomas of Gresford, that nothing was “dreamt up” in relation to the Bill. There was a consultation on the proposed approach. As I said during the debate on this issue in Committee, I remain unpersuaded of the need to introduce the limitations on the investigative process proposed in the amendment. These limitations do not apply in civilian life to civilian police force investigations; nor, interestingly, do they apply to service police investigations in the UK, so it seems that in that regard alone, the amendment creates an anomaly. However, it would also seem somewhat premature to propose changes to the investigative process while Sir Richard Henriques’ review of investigative and prosecutorial processes in relation to overseas operations is still in progress. I agree with the noble and gallant Lord, Lord Boyce, that investigations are critical. Sir Richard Henriques may have useful suggestions to make, and I suggest that we await his reports.

I set out previously and in some detail the Government’s concerns about this amendment, and I do not intend to cover all that ground again. However, I will set out briefly the key reasons why the Government are resisting it. Overseas operations should not be compared with the largely benign policing landscape of the United Kingdom, and we should not underestimate the challenges of conducting complex, robust and thorough investigations in a non-permissive, potentially dynamic and dangerous environment. Where the service police have reason to believe that an offence may have been committed, they have a legal duty to investigate it. Artificial timelines and restrictions placed on them in respect of the conduct of investigations would clearly impinge on their statutory independence.

Closing down or restricting the investigative timeline risks failing to exculpate our own forces or failing to provide much-needed closure to the families of deceased personnel. What if new evidence is claimed to have emerged which can be ascertained only by investigation? It would also bring a clearly increased risk of the International Criminal Court stepping in and determining, justifiably, that we are either unwilling or unable to properly investigate alleged offences on overseas operations.

There is already a well-established relationship between the prosecutor and the police, which ensures that a balance may be struck between further investigation and assessments of a realistic prospect of a conviction. The prosecutor can offer advice to the police but cannot direct them. That is a healthy separation of function. I submit that it would be inappropriate to fetter this discourse or to introduce a third party—the Judge Advocate-General—into the existing process. I reiterate that the same healthy relationship exists between the civil police and the Crown Prosecution Service without the need for a member of the judiciary to be involved.

The noble Baroness, Lady Smith, asked how the Bill addresses the issue of investigations. It creates a clear framework which everyone can understand around time limits for pursuing matters, whether criminal prosecutions or civil litigious matters, so that everyone involved in the process—whether the victim, the advising lawyers, the MoD, the accused or related witnesses—will now all understand that making progress with their criminal prosecution or their civil litigation claim will be made easier the sooner they set about doing that. As I have already observed—I remember saying this specifically at Second Reading and may possibly have repeated it in Committee—there is no doubt whatever that the best service you can provide to a victim or claimant is to ensure that the allegations are investigated as quickly as possible while minds are fresh and evidence is still available, and before the lapse of time may eradicate or taint what evidence there is.

For these reasons, the Government are not able to accept either amendment and in these circumstances, I ask the noble Lord to withdraw Amendment 1.

Photo of Lord Tunnicliffe Lord Tunnicliffe Opposition Deputy Chief Whip (Lords), Shadow Spokesperson (Defence), Shadow Spokesperson (Treasury), Shadow Minister (Transport) 2:30, 13 April 2021

My Lords, after listening to the debate, it is clear that we are united in seeking to protect our troops from vexatious claims and shoddy investigations. Both amendments in the group seek to do this and would approach the issue head on, unlike the presumption. However, I am convinced from my previous research and from listening to the debate that Amendment 6, which has direct effect, has the appropriate priority. It seems that, while one hears little accusation of unfairness by prosecutors, as a number of noble Lords have pointed out, there is a requirement for prosecutors to ensure that prosecutions are fair. There has been much concern about the investigations, so I favour the clarity of Amendment 6. We will not divide the House on Amendment 1 and will support the noble Lord, Lord Thomas, whom we urge to test the opinion of the House on Amendment 6. I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

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

We now come to the group beginning with Amendment 2. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.

Clause 5: Requirement of consent to prosecute