Amendment 1

Armed Forces Bill - Report – in the House of Lords at 3:25 pm on 23rd November 2021.

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Lord Morris of Aberavon:

Moved by Lord Morris of Aberavon

1: Clause 3, page 2, line 6, after “judge” insert “licensed by the Lord Chief Justice to try murder, manslaughter and rape offences”

Photo of Lord Morris of Aberavon Lord Morris of Aberavon Labour

My Lords, I beg to move my Amendment 1, which would add my own words to the Government’s insertion of “or a Circuit judge”, and to speak in the same group to Amendment 2, which I support, in the names of the noble Lord, Lord Thomas of Gresford, the noble and learned Lord, Lord Thomas of Cwmgiedd, and other noble Lords.

My amendment seeks to put on the face of the Bill the type of circuit judge that can be nominated to sit as a judge advocate. My understanding is that, at present, the Lord Chief Justice is able to nominate a High Court judge to do so and, in practice, from time to time does so. High Court judges have wide experience to try a whole range of cases, and those of the Queen’s Bench Division from time to time try the most serious offences, such as murder, manslaughter and rape, while they are on circuit. Circuit judges do not as a rule try such cases, save for those who are licensed by the Lord Chief Justice to do so. They are very senior and experienced judges. Trying a murder case can be a challenge, although those experienced to do so have the custom and practice to do it extremely well.

I hope that we can have a clear view that the type of judge who should sit is one who is licensed to try murder and manslaughter cases. I have the assurance of the Minister that they would be very experienced judges. I am grateful for her remarks but I emphasise that, administratively, in future there is no guarantee that what she says on paper now will mean that only those who are licensed to try in the criminal courts try such cases.

Turning to Amendment 2 to Clause 7, I racked what one of my mentors, the late Lord Elwyn-Jones, Lord Chancellor, used to call my brain for a suitable amendment that would be in order for Report to revisit the proposition, which I argued for in Committee, to civilianise the court martial system in certain serious criminal cases. My poor offering is the new clause proposed in Amendment 25 on page 8 of the Marshalled List. The noble Lord, Lord Thomas of Gresford, has shown greater ingenuity than me, and I now give notice that I will not move my amendment and will instead support his.

My campaign to civilianise the court martial system goes back a long way, to the time of the controversy concerning Sergeant Blackman’s case. The Minister was particularly kind to refer to my interest then. Following a number of debates that I was fortunate to initiate, the Ministry of Defence, with unaccustomed speed, set up an inquiry led by His Honour Shaun Lyons, and we are grateful to him. I am sure that this action owes a great deal to the then Minister, the noble Earl, Lord Howe, and the noble Baroness, Lady Goldie. Regrettably, Shaun Lyons’s recommendations for murder, manslaughter and rape have not been accepted by the Government.

I am glad that the protocol that I initiated and signed in the agreement between the Attorney-General’s office and the military prosecutors has stood the test of time. The ultimate authority in the Bill is the Director of Public Prosecutions, who works under the supervision of the Attorney-General, and, from my reading of the Bill, there is no undermining of the system. The Government were loath to accept my amendment in Committee. The amendment of the noble Lord, Lord Thomas of Gresford, does exactly what I had hoped would be plain sailing at Committee stage, and I congratulate him.

I believe that every soldier, sailor and airman—and their female counterparts—should have the same rights as civilians to a trial by a jury of 12, with all the statutory protections for majority verdicts, which time has proved work well in ensuring both just and timely verdicts. There is no such provision in court martials. It may well be, as the Minister said, that verdicts of two to one occur in a small number of less serious cases, but they have no place in modern criminal jurisprudence. Neither does a system whereby the most junior member of a court martial is asked to give his verdict first. This is even more important now, given the provisions in Schedule 1 for the constitution of court martials to include other ranks. Every service person should have the same protection for his or her day in court as a civilian counterpart. Our forces are now much closer to those in civilian life than they were and should have the same rights, hallowed and developed over centuries, as civilians have, and it is with pleasure that I support Amendment 2.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat Shadow Attorney General 3:30 pm, 23rd November 2021

My Lords, I am most grateful to the noble and learned Lord, Lord Morris of Aberavon, for his support, and I congratulate him on the attempts that he has made over a long time to civilianise military law. I am pleased that he mentioned Lord Elwyn-Jones, who admitted me to the rank of Queen’s Counsel in the Moses Room rather a long time ago.

The issue in Amendment 2 is: should members of the Armed Forces accused of murder, manslaughter, rape or other sexual offences alleged to have been committed within the United Kingdom be tried by court martial or in ordinary courts? The Mutiny Act 1689, in the reigns of William and Mary, laid down the principle that there should be annual renewals of the Armed Forces Act. The recital to it said:

“No man may be forejudged of life or limb, or subjected … to any kind of punishment … by martial law, or in any other manner than by the judgment of his peers and according to the known and established laws of this realm.”

That is the sentiment that the noble and learned Lord, Lord Morris of Aberavon, has just enunciated, and it is a principle derived from the Magna Carta.

But this recital in the Act contained an exception to that stirring principle. In respect of

“every person being mustered and in pay as an officer or soldier in their Majesty’s service, who excited, caused or joined in any mutiny or sedition in the Army, or deserted their Majesty’s service”, the punishment was death.

The other means of disciplining service personnel was under the Articles of War, issued under the King’s sign-manual, but only for the purpose of operations abroad, particularly in the colonies, not in the United Kingdom.

The Mutiny Act applied throughout Great Britain and Ireland, so that even in peacetime a soldier mutinying or deserting would be tried and punished under martial law, not civil law, and without the protections offered through civil law procedures.

The great jurist Sir William Blackstone, writing in 1765, was incensed that soldiers should be dealt with by court martial in peacetime and regretted that

“a set of men, whose bravery has so often preserved the liberties of their country, should be reduced to a state of servitude in the midst of a nation of freemen!”

When, in 2006, therefore, the Labour Government introduced into their Armed Forces Act a provision which permitted the trial of service personnel by court martial for serious offences committed in this country—a course which I strongly opposed at the time—they were going against centuries of history. The serviceman was now open to court martial for any offence, including murder, manslaughter and rape, even when committed in the United Kingdom. Importantly, he had lost the right to be tried by an ordinary jury of 12 of his peers and was subject to the verdict and punishment of up to seven officers, arrived at by a simple majority.

That is enough history; we must look at the position now, in 2021. We have before us the strong recommendation of His Honour Judge Lyons in his review. As it happens, his first recommendation is that the court martial jurisdiction should no longer include murder, manslaughter and rape when those offences are committed in the United Kingdom, except with the consent of the Attorney-General. The Defence Sub-committee under Sarah Atherton, Member of Parliament for Wrexham, published its report in July, entitled Protecting Those who Protect Us. That report calls urgently for the implementation of His Honour Judge Lyons’s recommendation.

It is true that, in his recent report, Sir Richard Henriques accepted concurrent jurisdiction, as it is called, but the reason he gives is that there may be cases which occur both abroad and in this country, and consequently a single trial would be preferable. That reason would not have any force in respect of murder cases, where there is universal jurisdiction.

I do not believe that a murder case, for a murder committed in the United Kingdom, has been dealt with by way of court martial since 2006. However, I have been able to trace two cases where charges of manslaughter by negligence occurring in this country were tried in that way, both relating to the Castlemartin range in west Wales. In the most recent case, in 2012, a soldier was killed during a live firing exercise. That case was about the planning, organisation and running of that range and required reconstruction of the scene, with accurate grid references and bearings to establish to the criminal standard the origin of the fatal round. Three were convicted and the officer was sentenced to 18 months’ imprisonment, with the others receiving service punishments. It follows, and I do concede, that there may be cases involving complex military issues where a court martial may be appropriate, but these are very rare—two cases in some 14 years.

In reply to the Minister’s comments in Committee, I said that she had misinterpreted this amendment. I have used the word “normally”, which means what it says: that offences committed in the UK would be tried in the ordinary Crown Courts, or in their equivalents in Scotland and Northern Ireland. That would be part of the protocol of the DSP and the DPP. It would be in only exceptional cases of the nature to which I have referred that the Attorney-General would need to be approached. I am not suggesting that he should be involved in the decision-making process of venue ab initio. Incidentally, there is no bar to the Attorney-General making a decision on venue, just as he or she may do in deciding on the commencement of proceedings. The Minister suggested the contrary in her reply in Committee.

Much more common are cases of rape and sexual offences occurring in this country being tried by court martial. It is obvious from the report of Sarah Atherton’s Defence Sub-Committee that complainants, their families and the public simply do not have confidence in courts martial. We can argue about the figures, but if the level of conviction is so low then this perception will have an effect on recruitment and, more importantly, retention. There are many victims within the armed services who will wish to leave for a civilian life if their complaints are not upheld.

The noble Baroness also repeated the justification advanced in 2006 that public confidence can be maintained in the whole service justice system

“only if the service justice system not only has but can be shown to have the capability to deal with all offending fairly, efficiently and in a manner which respects and upholds the needs of victims.”—[GC 166.]">Official Report, 27/10/21; col. GC 166.]

That was the justification in 2006 to give a boost to the status of the partly reformed system of courts martial.

I said at Second Reading that I generally welcome the reforms in this Bill. They nearly conclude the long journey since the Findlay human rights case in 1995 towards founding the service justice system on justice rather than, as it has been historically, on discipline. We have finally buried the Mutiny Act, under which General Braddock in the Seven Years’ War could issue the order of the day:

“Any Soldier who shall desert tho’ he return again will be hanged without mercy.”

This amendment is designed to complete the journey towards justice.

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

There is one brief reason that I would add to what has been so eloquently said by the noble and learned Lord, Lord Morris, and the noble Lord, Lord Thomas of Gresford. We have always tried, and marked the seriousness of, crimes set out in the amendment by trial by jury. Magna Carta conferred on defendants the right to trial by jury. Today, we take account of the interests of the victim of such crimes and they have confidence only in trial by jury, particularly as so many of these cases turn on credibility. On that, the judgment of ordinary men and women, drawn from a jury, is the only way to achieve justice. For those three reasons, we should not deprive people of trial by jury in these cases.

Photo of Baroness Bennett of Manor Castle Baroness Bennett of Manor Castle Green

My Lords, I will speak very briefly, having attached my name to Amendment 2 in the name of the noble Lord, Lord Thomas of Gresford. I did that because, as we came to the deadline, I noticed that there was a space, and I really felt that, given the level of support that the issue covered by this amendment achieved at Second Reading, it deserved the broadest cross-party and non-party support possible.

I will also reflect on what I said in Committee on this amendment. Much of our leadership on this has come from Members from legal backgrounds, who focused on the rights of the defendant. I understand that, but I also note that I am the only female Peer who has attached my name to the amendment. There is very much a gender aspect to this. Women currently make up 10% of our full-time military—about 15,000 in number. They are still a significant minority right across the forces.

As the noble Lord, Lord Thomas of Gresford, just alluded to, we have a military culture stretching back many centuries that was, for most of that time, entirely male dominated. Offences such as domestic violence, child abuse, rape and sexual assault are disproportionately committed against women. Last night in this very Chamber on the policing Bill we were discussing how difficult it is to get our civilian justice arrangements to cater adequately for these offences. How much more difficult is it in the military context, with the culture we just heard outlined?

I commend the amendment to the House and, looking back to the Second Reading debate, note the breadth of support it achieved.

Photo of Lord Coaker Lord Coaker Shadow Spokesperson (Defence), Shadow Spokesperson (Home Affairs), Opposition Whip (Lords) 3:45 pm, 23rd November 2021

My Lords, it is a privilege to speak after my noble and learned friend Lord Morris, the noble Lord, Lord Thomas of Gresford, the noble and learned Lord, Lord Thomas of Cwmgiedd, and the noble Baroness, Lady Bennett. I support Amendment 2 in our names, an exceptionally important amendment that seeks to build and improve on the current situation, according to the principles laid out by the noble Lord, Lord Thomas of Gresford, and the noble and learned Lord, Lord Thomas of Cwmgiedd, on the need for trial by jury.

As we heard in Committee, the independent review by his honour Judge Shaun Lyons and Sir Jon Murphy recommended that murder, manslaughter, rape, sexual assault by penetration and child and domestic abuse cases, where alleged to have happened in the UK, should be removed from the military justice system, except where the consent of the Attorney-General was obtained. Lyons recommended establishing a serious crime unit and removing murder, manslaughter, rape, sexual assault by penetration and child and domestic abuse cases from the SJS. One did not stop the other.

As noble Lords have pointed out, there is a problem here, in some of the issues of principle that have been raised and in looking at some of the statistics. In Committee, the Minister said that it was not possible to draw

“a meaningful statistical or data comparison between the service and civilian justice systems”,—[GC 165.]">Official Report, 27/10/21; col. GC 165.] because the small database would mean that some changes would result in a “disproportionate effect”.

I looked for some statistics to put before your Lordships, to highlight some of the issues that the noble Baroness, Lady Bennett, talked about. These statistics, regarding the court martial system within the Ministry of Defence, as given by the Government in answer to a Written Question in February 2021, show the issue that has been highlighted, not only by Sarah Atherton MP’s report but by many other reports and stories that come out of the Ministry of Defence. For example, according to the Government’s own figures, in 2015, 31 charges were heard, with three defendants found guilty. There were 40 sexual assault cases that year, in which 21 defendants were found guilty. In 2019, nine cases of assault by penetration were heard, with two defendants found guilty. There are many other figures that can be used. These statistics were issued on 3 February 2021 by the then Minister, Johnny Mercer MP, in response to a question, highlighting some of the issues and the need for us to reflect on whether we can improve the system.

Sarah Atherton MP, his honour Judge Lyons and many others have said that it is not only about a case of justice or the principle of trial by jury. There are very real problems within the military justice system in this respect. Therefore, this amendment takes us to a very important issue of principle and a very important way in which we might do better in bringing justice to some of these women.

In Committee, the Minister said that the Government had

“committed to publishing a defence-wide strategy for dealing with rape and serious sexual offences in the service justice system.”—[Official Report, 27/10/21; col. GC 166.]

However, on 8 November, her ministerial colleague, the Armed Forces Minister, said that the Government have only an intention to publish a defence-wide strategy for dealing with rape and serious sexual offences in the service justice system. Can the Minister comment on whether publishing that strategy is a commitment or an intention, and how that strategy would seek to improve conviction rates in the system?

Supporting the amendment tabled by the noble Lord, Lord Thomas, and the excellent way in which he presented it, is a way of ensuring that we move towards the principles that we seek to ensure for all our citizens, and to do something about some of the problems that we see in the statistics I have mentioned.

Photo of Lord Robathan Lord Robathan Conservative

My Lords, if I may intervene briefly, I will start with a confession: I have not read the Mutiny Act 1689, to which the noble Lord, Lord Thomas, referred so eloquently. But I have a little experience, in that I have sat on a court martial as part of the board. I have never been court-martialled, I am glad to say, but I have experience of military justice—some decades ago now, because I am getting old. I also have some experience of it from working in the Ministry of Defence in the coalition Government. The Bill as a whole tries to make the criminal justice system in the military better. It is all to be applauded, and I am particularly impressed with the setting up of the defence serious crime unit.

I found a slight contradiction in the amendments that we are discussing today; perhaps it might be explained later. Is it because defendants—typically soldiers—are too harshly treated that they should have trial by jury? When I was serving, my experience was that, in the military justice system, there was a certain attitude: “If he is before a court martial”—it was almost exclusively a “he”—“he must be guilty”. Or is it because, as it says in Amendment 25, we need to improve the rates of conviction for serious offences? This seems to be a slight contradiction.

Is it because people do not like the whole courts martial system? That is a serious question to be addressed. In my experience, which is aged and limited, the courts martial system works pretty well, so let us know exactly why it should be that we wish to change it for these matters—and I know Judge Lyons has said so. Notwithstanding the comments of the noble Lord, Lord Thomas, that we should not consider discipline to be part of this, it is very important that we have a disciplined force. That is why we have courts martial, though no longer the death penalty for mutiny.

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

My Lords, I am delighted to join your Lordships in the Chamber this afternoon on Report to discuss these proposed amendments to the Armed Forces Bill. This is an important Bill. I know it enjoys support across the Chamber, but interesting issues have arisen and merit discussion.

I also observe that many of the issues that were vigorously and articulately debated in Committee have resurfaced. That was a good debate, probing the legislation for the Bill. Please be assured that I will endeavour again to address the points raised and to dispel the concerns that noble Lords have around the Bill.

Your Lordships may take comfort that I am as passionately driven as anyone in this Chamber to ensure that we deliver the best for our service men and women, our veterans and their families, balanced against the resources to hand. I say with confidence that the Bill seeks to achieve that overriding objective. I am grateful to my noble friend Lord Robathan for acknowledging that this is exactly the improvement that the Bill seeks to deliver.

With that said, I will now speak to Amendments 1, 2 and 25. Just for the avoidance of doubt, I understand that the noble and learned Lord, Lord Morris of Aberavon, will not now move Amendment 25, and therefore I propose not to use my speaking notes and have a Mogadon effect on the Chamber. If the noble and learned Lord is content with that, I can perhaps shorten this debate a little.

Amendments 1 and 2 focus on the service justice system. I thank the noble and learned Lord, Lord Morris of Aberavon, for tabling Amendment 1. It seeks to amend Clause 3 so that a circuit judge or a High Court judge can be nominated by the Lord Chief Justice to sit as a judge advocate only when they are ticketed to deal with cases of murder, manslaughter and rape.

First, I reassure your Lordships that judge advocates hearing murder, manslaughter and rape cases in the courts martial have the same training and requirement for ticketing as judges hearing those cases in the Crown Court. The Judge Advocate-General and all judge advocates sit in the Crown Court for up to 60 sitting days a year and are as qualified, capable and well trained as civilian judges sitting in the Crown Court.

Tickets are allocated based on the Judge Advocate-General’s judgment that a particular judge advocate has the appropriate training, experience and ability to try the case in question. Judges nominated by or on behalf of the Lord Chief Justice to sit as a judge advocate will likewise have whatever tickets are necessary for the case that they will be trying. I trust that this will assure the noble and learned Lord that all the judges sitting in the courts martial are qualified to try whatever case is before them.

There may also be some misapprehension about another situation: when the service courts might need additional judges. As drafted, the amendment would allow only judges ticketed for murder, manslaughter and rape to be nominated to sit in the court martial. The judiciary in the service courts is already able to deal with these serious offences, so the Judge Advocate-General may need to request the nomination of a judge for other reasons. It might be because they have particular expertise or experience that is relevant for another type of offence. There might also simply be a temporary shortage of judge advocates, perhaps when the service courts have an unusually high caseload. A judge nominated to sit in the service court would need to be ticketed only for the particular type of case that they are trying; they would not need a ticket for murder, manslaughter or rape, unless of course they were dealing with those offences. I hope that that reassures your Lordships and, therefore, that the noble and learned Lord will feel able to withdraw his amendment.

I turn now to Amendment 2 in this group, tabled by the noble lord, Lord Thomas of Gresford, and supported by the noble Lord, Lord Coaker, the noble and learned Lord, Lord Thomas of Cwmgiedd, and the noble Baroness, Lady Bennett of Manor Castle. It seeks to ensure that certain serious crimes—murder, manslaughter, domestic violence, child abuse, rape and sexual assault with penetration—are all tried in the civilian courts when committed by a serviceperson in the UK, unless by reason of specific naval or military complexity involving the service the Attorney-General has specifically consented for such crimes to be tried at courts martial.

By way of preface, I say that it was very clear from our debate in Grand Committee that we all have a common aim: to ensure that, where there is concurrent jurisdiction, each case is heard in the most appropriate jurisdiction. This amendment seeks to achieve this through two procedural safeguards—namely, that there is a presumption that these offences are heard in the civilian courts and that, to overturn that presumption, the Attorney-General’s consent must be obtained.

We accept the need to improve decision-making in relation to jurisdiction, and a key part of that is of course for the civilian system to have a potential role in each case. We differ on the need to restrict the legal principle of concurrent jurisdiction by introducing a presumption in favour of one system over the other, and that is what the noble Lord’s amendment manages to create.

As I said in Grand Committee, the recently published review by Sir Richard Henriques was unanimous on two things, in supporting not only the continued existence of the service justice system but the retention of unqualified concurrent jurisdiction for murder, manslaughter and rape. Importantly, the review found the service justice system to be fair, robust and capable of dealing with all offending. The creation of a defence serious crime unit elsewhere in the Bill will further improve the skills and capability of the service police to deal with these most serious offences. Therefore, we do not believe that a presumption in favour of these offences being heard in the civilian courts is necessary or justified.

We acknowledge that change is required to improve clarity as to how concurrency of jurisdiction works in practice. Instead of introducing an Attorney-General consent function, as recommended by His Honour Shaun Lyons, we believe that a better approach is to strengthen the prosecutors’ protocols and enhance the role of prosecutors in decision-making on concurrent jurisdiction. Independent prosecutors are, after all, the experts on prosecutorial decisions.

Clause 7, therefore, places a duty on the heads of both the service and the civilian prosecutors in England and Wales, Scotland and Northern Ireland to agree protocols regarding the exercise of concurrent jurisdiction. Well-designed protocols ensure that decision-making is taken at the right level by those with access to the most up-to-date information. In terms of these offences, the Director of Service Prosecutions has already stated, in his evidence to the Bill committee in the other place, that there will be a requirement for the service prosecutors to consult their civilian counterparts when dealing with certain offences so that expertise from both sides can be addressed to the jurisdiction decision.

Further, the Bill makes clear that, where there is disagreement on jurisdiction, it is the Director of Public Prosecutions who will always have the final say. Together, these procedural safeguards ensure that the civilian authorities are always involved in decisions on concurrent jurisdiction in certain cases and can always veto such cases being heard at court martial. I hope that explanation has provided noble Lords with the assurance that sufficient consultation with the civilian authorities will take place to assure that we have good decision-making and cases are heard in the most appropriate jurisdiction.

The noble Baroness, Lady Bennett, raised the important issue of what she described as the imbalance of women in the military. I can say that elsewhere in the Bill we are broadening the pool from which members of the court martial board can be drawn to include rank OR-7. This will increase the number of women who can sit on court martials. The noble Baroness made an important point; it is recognised within the MoD, and we are taking steps to try to improve the presence of women in the court martial system.

The noble Lord, Lord Coaker, raised a point about the proposed defence rape and serious sexual crime strategy. I can confirm that we intend to publish that strategy—a defence-wide strategy—for dealing with rape and serious sexual offences in the service justice system. That will aim to reduce the prevalence and impact of rape and other serious sexual offending in the Armed Forces, and to improve the handling of those cases in the service justice system. I do not know where the preparation of that strategy has got to, but I can undertake to make inquiries. It is my colleague, the Minister for Defence People and Veterans, who is dealing with that. I will make inquiries and write to the noble Lord with further information.

I hope that on the basis of that further information which I have been able to provide that noble Lords will feel able to withdraw or not to press their amendments.