Armed Forces Bill

moved Amendment No. 4: Page 18, line 38, at end insert- ““( ) A person shall not be charged with an offence under this section if- (a) it is alleged to have been committed in the United Kingdom, and (b) the corresponding offence under the law of England and Wales is punishable by life imprisonment.”” The noble Lord said: My Lords, those noble Lords who have assisted us in our consideration of the disciplinary offences in the Bill are to be commended on having achieved significant changes in the Bill in respect of those disciplinary offences. In addition to disciplinary offences, Clause 42, to which my amendment refers, gives to the court martial jurisdiction over a person subject to service law or a civilian subject to service discipline in respect of any offence punishable by the law of England and Wales. It is familiar from the Army Act that the court martial can try a person for committing what is called in Army terms a civil offence—an offence as serious as murder, manslaughter, rape or any offence punishable by the criminal law. The purpose of my amendments is to maintain the present position. The present position traditionally has been that if a serious offence of treason, murder, manslaughter or rape is committed in the United Kingdom, as opposed to abroad, by a soldier or serviceman or a civilian subject to service discipline, those offences cannot be tried by way of court martial but can be tried only in the Crown Court. That is the position today. For some reason, which has not been adequately explained, although I have pressed the matter both in Committee and on Report, the Government think that it is right to extend the jurisdiction of the court martial court to encompass any criminal offence. Whereas today, a serviceman who commits murder in the United Kingdom can be tried only by a Crown Court, with all the procedural safeguards that that involves, in future, someone—it is not clear who, but presumably the new director of service prosecutions—will be able to say, ““Well, although this act has been committed in a part of London—you are alleged to have murdered somebody in London—nevertheless, you are a serviceman, you work for the services, or you are the child of a serviceman and are therefore subject to service law””. Someone can decide that the ordinary Crown Court is not the requisite place to be tried and may order, under the provisions introduced by the Bill for the first time in history—certainly since the Army Act 1955—that the person can be tried by court martial. What is the reason for that? I suspect that it is a way of upping the profile of the new court martial court. What about the impact on the defendant, who has all sorts of procedural safeguards in the Crown Court that do not exist in the military court? For example, in the military court he may be tried and convicted of murder by a majority of 3:2 as opposed to the unanimous verdict of a jury, or at the very most a verdict with a majority of 10:2 in the Crown Court. There are other safeguards, but I shall not weary your Lordships by listing them all. The Government’s response on Report was that it was anomalous that there is an exception in relation to murder, manslaughter, rape and treason because there are other offences punishable by life imprisonment, such as serious sexual offences, which are not exempted. So why should you have one and why have the other? The answer is not to give the court martial jurisdiction over murder, et cetera, committed in the United Kingdom. It is to say that any serious offence that carries life imprisonment should not be tried by a court martial in this country. I have conceded that if murders or other serious offences are committed abroad, it may be appropriate, but only as a second best, for the court martial to deal with those cases. I argued in the case of Martin—a boy of 17 whose father was a serving soldier—which went before the Judicial Committee of your Lordships House, that it is wrong, even when an offence is committed abroad, for a civilian to be tried by way of court martial in front of a row of officers. We did not succeed in that case in the House of Lords in 1997 because their Lordships held that you could not call it an abuse of process when Parliament had many years ago decided that it could be done. But the Human Rights Act was not in force at that time. The matter went to the European Court, and it has taken 10 years—until last week—for that court to pronounce. It has decided unanimously that that should not have happened, and that only in the most exceptional circumstances should a civilian be tried by way of court martial for serious offences, even if they are committed abroad. The European Court has expressed its strong view on this in relation to civilians, but the amendment relates to courts martial having jurisdiction over offences committed in the United Kingdom. I should be interested to know how many judge advocates have tried a murder case. I would not have thought there had been more than three or four such cases in the past 10 years. I can think of only one successful prosecution of a murder case—possibly two if I include Northern Ireland. There is little experience—perhaps that is the best way to put it—among judge advocates. As far as I know, they do not carry rape tickets or murder tickets, as Crown Court judges have to do before they can try such cases. If they do have such tickets, no doubt the Minister will inform us. There is a lack of experience in trying what are the most complicated cases. Murder cases introduce concepts of provocation, self-defence, manslaughter and so on, as alternatives, which are not easy to resolve. The Minister and the Government have rightly listened to the contributions of the military people who have commented on the Bill, but they have not listened to the contributions of people experienced in that legal system. In many ways, they have not adopted the recommendations of the Judge Advocate General, Judge Blackett. He was a serving naval officer who retired to become the Judge Advocate General and he was appointed circuit judge. He made recommendations which would have improved the procedural safeguards at courts martial. I have advanced many of those in amendments which have been rejected by the Government. I have already declared to your Lordships my own interest in this area of the criminal law, but I venture to say that I have appeared in more military murder cases than anyone else I can think of at the moment. Why do the Government not listen to lawyers? Presumably lawyers do not matter. Often that is the view expressed, if not openly, certainly implicitly in your Lordships' House. At the end of the day, we are concerned with fair trials. The European Court has said that one does not get a fair trial in front of a row of military officers if one is a civilian. Yet the Government are missingan opportunity with this Bill to reform radicallythe military justice system to bring it into the21st century. They have not gone far enough. That is their problem. The forces of tradition and the forces of the services have been too much. I hope I have indicated to your Lordships the importance that I attach to this amendment. I beg to move.