Clause 7 - Concurrent jurisdiction

Armed Forces Bill – in a Public Bill Committee at 2:15 pm on 25 March 2021.

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Photo of Sharon Hodgson Sharon Hodgson Shadow Minister (Defence) 2:15, 25 March 2021

I beg to move amendment 19, in clause 7, page 4, line 26, at end insert—

‘(4A) Guidance under (3)(a) must provide that murder, manslaughter and rape must be tried in civilian court when offences are committed in the UK.’.

This amendment will ensure that the most serious crimes – including murder, manslaughter, sexual assault, and rape - are tried in the civilian courts when committed in the UK.

Photo of James Sunderland James Sunderland Chair, Select Committee on the Armed Forces Bill, Chair, Select Committee on the Armed Forces Bill, Chair, Select Committee on the Armed Forces Bill

With this it will be convenient to discuss the following:

Amendment 2, in clause 7, page 6, line 27, at end insert—

‘(ca) Justice Directorate in Scotland’.

This amendment equalises the requirement for all the devolved administrations to be consulted.

Clause stand part.

Photo of Sharon Hodgson Sharon Hodgson Shadow Minister (Defence)

It has been a pleasure to serve under your chairmanship throughout this Committee, Mr Sunderland, and to be able to participate virtually. I am aware that this is the first time that line-by-line has been done this way. We are pioneers, and I am sure we are doing a grand job for others who will no doubt follow. I hope the Minister will carefully consider all the amendments, which are based on the evidence we have heard and received from experts and stakeholders throughout the process.

Amendment 19 would ensure that the most serious crimes, including murder, manslaughter, sexual assault and rape, are tried in the civilian courts when committed in the UK. The first recommendation in His Honour Shaun Lyons’s 2020 service justice system review was:

“The Court Martial jurisdiction should no longer include murder, manslaughter and rape when these offences are committed in the UK, except when the consent of the Attorney General is given.”

Judge Lyons told the Committee in oral evidence that he felt it was not Parliament’s intention for murder, manslaughter and rape that happened in the UK to be tried in the service justice system. Indeed, in 2006, Lord Drayson, the then Government spokesperson in the Lords, said:

“I have already told the House that we do not propose that, under the Bill, murder, rape or treason alleged to have been committed by a serviceman in the United Kingdom will normally be investigated and tried within the service system.”—[Official Report, House of Lords, 6 November 2006; Vol. 686, c. 587.]

During the Select Committee on the Armed Forces Bill 2006, Major General Howell, head of the Army Prosecuting Authority, also said that he understood that courts martial would be used in exceptional situations. Despite that, the protocols do not reflect that intention or the Lyons review recommendation; the amendment takes account of that.

Throughout the evidence sessions we heard about the culture and archaic views around victims of sexual harassment and rape, with perpetrators being described as being of “good character” but had just had a bit too much to drink and made a mistake. We have to tackle that perception, and that is why I wholeheartedly agree with the written evidence that we received from Tony Wright from Forward Assist:

“Sexual assault…is sexual assault and rape…is rape, it should not be minimised by calling it unacceptable behaviour.”

That culture, coupled with low conviction rates for rape cases at court martial—at just 10% between 2015 and 2019—means that there is little trust in the system that should be there to provide justice. The civilian courts are not perfect but, during the same period, the conviction rate for rape was 59% in civilian courts, with considerably more cases being tried each year in those courts. Yesterday, the Minister said to the Committee:

“I am comfortable, with that protocol in place”,

and that it provides

“a resilient route to justice for those who need it.”

A low conviction rate of 10% for rape, however, does not match the Minister’s words.

Trying the most serious offences that occur in the UK in the civilian courts would help to improve conviction rates and, as Professor Sir Jon Murphy told this Committee, it would put the victim “at the heart” of the system. The Government have an opportunity with the Bill and the amendment to do just that. They cannot continue to brush serious crimes under the carpet as an inconvenient truth not to be dealt with because it could affect the defendant’s career. Sexual assault and rape affect all aspects of a victim’s life for many, many years, and the victim must be the priority.

A judge-led inquiry, the Victims’ Commissioner, the founder of the Centre for Military Justice and Forward Assist all agree that murder, manslaughter and rape should not be tried in the military system, unless in exceptional circumstances. I hope the Minister will join us to make that happen with the amendment.

Photo of Martin Docherty Martin Docherty Shadow SNP Spokesperson (Industries of the Future and Blockchain Technologies), Shadow SNP Spokesperson (Foreign Affairs Team Member), Shadow SNP Spokesperson (Defence Team Member), Shadow SNP Spokesperson (PPS to the Westminster Leader)

I fully support the hon. Lady and her amendment. If it comes to a Division, I and my SNP colleagues will vote with Labour.

On amendment 2, it is clear in the Bill that the judicial systems of these islands are included. For example, in proposed new chapter 3A, the “Guidance on exercise of criminal jurisdiction” for England and Wales includes the Secretary of State and the Attorney General. We then go to Northern Ireland, and the measure is clear about including the Northern Ireland judicial service. Within the process, the guidance mentions the criminal jurisdiction in Northern Ireland, which is the Secretary of State and the Department of Justice in Northern Ireland.

When the Bill comes to the process in Scotland, however, with “Guidance on exercise of criminal jurisdiction” in Scotland, there is a glaring omission: we see the Secretary of State, but not the Justice Directorate of Scotland. Given that the directorate covers a completely different judicial process and system, that is a glaring omission. I hope that the Government are willing to include what my hon. Friend the Member for Glasgow North West and I have proposed, the insertion of the Justice Directorate of Scotland, to bring the clause into line with the rest of the Bill, as it is for England and Wales, and Northern Ireland.

I hope the Minister will accept the amendment of that small anomaly, to ensure clarity—he will forgive me for using the terminology—unity and unanimity across the process. I might be willing to consider what the Government say before pressing for a vote.

Photo of Johnny Mercer Johnny Mercer Parliamentary Under-Secretary of State (jointly with the Ministry of Defence) 2:30, 25 March 2021

I will deal with the amendments in reverse order. Amendment 19 seeks to ensure that the most serious crimes—murder, manslaughter and rape—are tried in the civilian courts when committed by a service person in the UK. It seeks, through statutory guidance, to undermine the current legal position, which is that there is full jurisdictional concurrency between the service and civilian justice systems. I want to take this opportunity to explain clearly why the Government do not consider that to be the right approach.

To begin with, it is important to be clear that the amendment goes further even than the service justice system review recommended. It would mean that murder, manslaughter and rape committed in the UK could never be dealt with in the service justice system. The Lyons review recommended that such cases could continue to be tried in the service justice system with the consent of the Attorney General. Even some of those who were critical of such offences being retained in the service justice system seemed to accept at least some ongoing role for the service justice system. For example, there is general consensus that cases including cross-jurisdiction elements—offending both overseas and in the UK—would be appropriately tried in the service justice system.

The Government resist the amendment on that basis alone; however, as is now well known, the Government are also unable to accept the Lyons review recommendation directly, and have instead opted for an alternative and improved approach. As explained on Second Reading, the decision to retain jurisdictional concurrency was taken after full and careful consideration. The Government are confident that the service justice system is capable of dealing with all offences, whatever their seriousness and wherever they occur, bolstered by the improvements recommended by the Lyons review.

One of the most detailed examinations of the way the service police deal with cases of domestic abuse and serious sexual offences was contained in an audit by retired Detective Superintendent Mark Guinness in 2018 as part of the Lyons review. That audit found that service police have the necessary training, skills and experience to carry out investigations into such cases. The service prosecutors and judiciary are trained, skilled and experienced. Victims and witnesses receive support that is comparable to that received in the civilian system, for example through the armed forces code of practice for victims of crime.

Members have referred to statements by Ministers to Parliament during debates on what became the Armed Forces Act 2006. Ministers at the time said that murder, manslaughter or rape committed in the UK would normally continue to be tried in the civilian system; however, those were policy statements made nearly 15 years ago by Ministers in a different Government. Those policy statements did not alter the legal position set out in the Act: that of concurrent jurisdiction. We are considering what the position should be today and for the future, not what the position was 15 years ago.

In the light of that, the Government have concluded that it is right that the current legal position of jurisdictional concurrency is maintained in principle. The service justice system exists to support operational effectiveness and discipline, and to do that effectively it needs flexibility. That is why the Government have concluded that decisions on where cases should be tried should be taken on a case-by-case basis by independent prosecutors.

Clause 7 places a duty on the heads of the service and civilian prosecution authorities to agree guidance relating to how decisions are made where there is concurrent jurisdiction. That will bring much needed clarity on how decisions on jurisdiction are made, and will ensure that decisions on jurisdiction are transparent and independent of the chain of command and Government. The director of service prosecutions in his evidence to the Committee stated that in cases of murder, manslaughter or rape, service and civilian prosecutors will need to consult on where the proper jurisdiction lies. The Bill makes it clear that where a disagreement over jurisdiction cannot be resolved the civilian prosecutors will have the final say.

To be clear, the aim of that approach is not to increase the number of serious crimes being tried in the court martial; it is to ensure that the service justice system is able to deal with those offences in principle when committed by a service person in the UK, and that there is a transparent, robust and independent way of resolving where jurisdiction lies. I hope that that explains the rationale for the Government’s approach and the safeguards that exist, and that, following those assurances, the hon. Member for Washington and Sunderland West will agree to withdraw her amendment.

Amendment 2 seeks to include the Justice Directorate in Scotland as one of the statutory consultees that must be consulted by the issuing authorities of the protocol regarding the exercising of concurrent jurisdiction in Scotland. The hon. Members for Glasgow North West and for West Dunbartonshire have stated that the purpose of the amendment is to ensure that devolved Administrations are appropriately consulted.

New section 320B of the 2006 Acts provides for the Lord Advocate and Director of Service Prosecutions to agree a protocol for the exercise of concurrent jurisdiction in Scotland. Subsection (8) requires them to consult all authorities listed there before agreeing the protocol or any revision to it. Those listed for Scotland are the Secretary of State, the Chief Constable of the Police Service of Scotland, or any other person whom the issuing authorities think appropriate. Corresponding provision is made for England and Wales in new section 320A, and for Northern Ireland in new section 320C.

The constitutional frameworks for criminal justice are different between England and Wales, Scotland and Northern Ireland. As a result, the office holders responsible for agreeing the three protocols with the DSPs and the list of consultees are designed to reflect those differing arrangement in each jurisdiction. In relation to Scotland, the clause was drafted in consultation with the Scottish Government and the Crown Office and Procurator Fiscal Service. The role of the Lord Advocate agreeing the protocol and the list of Scottish consultees reflects those comments prior to introduction. On the involvement of the Scottish Government in developing the protocol, it is of course the case that the Lord Advocate is a member—

Photo of Johnny Mercer Johnny Mercer Parliamentary Under-Secretary of State (jointly with the Ministry of Defence)

Yes, but the hon. Gentleman’s last intervention simply reiterated his point. I accept that, but I will take interventions only if they add to the point something that we have not already covered.

Photo of Martin Docherty Martin Docherty Shadow SNP Spokesperson (Industries of the Future and Blockchain Technologies), Shadow SNP Spokesperson (Foreign Affairs Team Member), Shadow SNP Spokesperson (Defence Team Member), Shadow SNP Spokesperson (PPS to the Westminster Leader)

I do hope so. The Minister mentioned the Scottish Government. My amendment relates to the civil service through the Justice Directorate, so there is a clear differentiation, and it is not necessarily an engagement with the Government, but with the civil service and differing legal system of Scotland. That is why it is clear that it is about the Justice Directorate and not, for example, the Cabinet Secretary for Justice.

Photo of Johnny Mercer Johnny Mercer Parliamentary Under-Secretary of State (jointly with the Ministry of Defence)

I appreciate that point, but the outcome that we are trying to achieve will be similar. The clause was drafted in consultation with the Scottish Government and the Crown Office and Procurator Fiscal Service. The role of the Lord Advocate in agreeing the protocol reflects those comments prior to its introduction. We have been around the houses and got those people’s views.

On the involvement of the Scottish Government in developing the protocol, the Lord Advocate is of course a member of the Scottish Government, so there is no question of the Scottish Government not being involved in the creation of the protocol in Scotland. In addition, new section 320B(8) of the 2006 Act provides that the Lord Advocate and the Director of Public Prosecutions may also consult anyone else thought appropriate.

I hope that helps to explain how we have designed the clause in a way that is sympathetic to the differing constitutional arrangements across the UK, and I hope that hon. Members will withdraw their amendments.

Photo of Kevan Jones Kevan Jones Labour, North Durham

May I begin by thanking Justice Lyons for his review? In his evidence to the Committee, he clearly outlined why amendment 19 is needed. I am a veteran of the 2006 Bill Committee, and it is quite clear, as Judge Lyons said in evidence, that when this amendment was made to that Bill, the intention was not for the wholesale movement towards serious crimes being heard in courts martial in the UK. They were for exceptional circumstances in which, for example, one crime had been committed overseas and one in the UK, given the ability of the court martial to deal with such cases. That was a sensible way forward because the service police would clearly be the lead authority in the investigation of such serious crimes committed abroad as murder, rape or manslaughter,.

The problem, which my hon. Friend the Member for Washington and Sunderland West outlined eloquently, is to do with confidence in the system. When the system was outlined, I do not think courts martial were meant to deal with these serious crimes. I support the military justice system, and I do not think the amendment would do anything to damage it. I think it would boost confidence in it.

The problem with the current system has been outlined. The conviction rate for rape is not satisfactory—I accept there are problems not just in the military system but in civilian life as well—and one of the key issues is investigation. The Minister said he was confident that the service police have the capacity to investigate such serious crimes. I would not want to criticise professional individuals, but, as with anything, the more specialism someone has and the more cases they deal with, the more expertise they get in gathering evidence and in supporting victims.

Clearly, the service police deal with a limited number of serious cases, so I would have thought that, when such alleged crimes are committed in the UK, it would be important to involve the local civilian police, who deal with serious sexual assaults, rapes, manslaughter and murder more often. Because of that experience not only in gathering evidence but in dealing with victims, they should have primacy. I am old enough to remember the Deepcut inquiry undertaken by Lord Justice Blake and know those cases in detail. I accept that is going back a number of years, but the clear problem there was the way in which evidence was not gathered—in some cases it was ignored or destroyed—and the assumption, without rigorous investigation, that suicide was the main cause of death in all cases.

The amendment is really about the system’s integrity and getting confidence for victims as well. As we saw in evidence from Forward Assist and retired Lieutenant Colonel Diane Allen, there is an issue in ensuring that, first, those who complain think they will be listened to as victims, and secondly, the armed forces’ hierarchical structure is not an impediment to the proper investigation of serious accusations. I can see the reason for courts martial dealing with cases in exceptional circumstances, as outlined in the 2006 Act, such as those that take place overseas and in this country, but I cannot see why routine cases in the UK are not dealt with by the civilian courts. I therefore support the amendment.

The Minister said it is a policy decision, but I am not sure. The intention was there, and I do not think much has changed in the past 15 years. What we need to do now is to ensure that, as was outlined in evidence we heard from the Victims’ Commissioner and other witnesses, the victim is at the centre of any system we put in place.

Photo of Carol Monaghan Carol Monaghan Shadow SNP Spokesperson (Armed Forces and Veterans), Shadow SNP Spokesperson (Education)

I will say a few words in support of the amendment. The Defence Sub-Committee has been taking evidence on the experience of women in the armed forces. We know there are a whole range of issues specific to female personnel. When we are looking at serious crimes such as rape, so many different issues have to be considered —we need to consider consent and whether there is a proper reporting structure—and those who make complaints must have confidence in the system.

We have already discussed the membership of the court martial board. How can someone have confidence in a trial when those who are deciding the outcomes are likely to be male and of higher ranks, and not likely to have any understanding of the woman or the victim’s experience? In other words, they will not have anything in common with the person who is bringing forward the complaint.

It is far more likely that there will be clarity, diversity and understanding among members of the jury in a civilian court. I therefore ask the Minister to reconsider the measure. The amendment is important. If we hope to increase diversity in the armed forces and improve the experience of different groups, including women, we need to take it seriously.

Photo of Martin Docherty Martin Docherty Shadow SNP Spokesperson (Industries of the Future and Blockchain Technologies), Shadow SNP Spokesperson (Foreign Affairs Team Member), Shadow SNP Spokesperson (Defence Team Member), Shadow SNP Spokesperson (PPS to the Westminster Leader) 2:45, 25 March 2021

I, too, support the shadow Veterans Minister and the Labour amendment. I sit on the Defence Sub-Committee on Women in the Armed Forces chaired by Sarah Atherton, who represents the Government party. We are going through extraordinary evidence submitted by women who have served in the armed forces over many years, and the amendment would go some way towards tackling the profound issues they have faced.

Photo of Sharon Hodgson Sharon Hodgson Shadow Minister (Defence)

I have listened carefully to the Minister, my right hon. Friend the Member for North Durham and other hon. Members. I am minded to withdraw the amendment, while reserving the right to bring it back at a later stage. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of James Sunderland James Sunderland Chair, Select Committee on the Armed Forces Bill, Chair, Select Committee on the Armed Forces Bill, Chair, Select Committee on the Armed Forces Bill

Before we move on to deciding clause 7, I will make a couple of process announcements. We are feeling our way with this first ever virtual sitting of line-by-line scrutiny and I wish to make two points. First, for the avoidance of doubt, the decision on amendment 1 to schedule 1, which we debated earlier, will be made later, when we reach the schedules, which are on page 2 of the selection list. The amendment was grouped for debate, but the decision will be made separately, later in proceedings.

Secondly, I am very happy with how interventions have worked so far. Rather than coming through me as the Chair, I am happy for Members to intervene virtually, as Mr Martin Docherty-Hughes has already done successfully, directly on the person speaking.

Clause 7 ordered to stand part of the Bill.