Armed Forces Bill

My Lords, in our earlier debates, the noble Lord, Lord Thomas of Gresford, sought to prevent this Bill extending the jurisdiction of the military criminal justice system in relation to most serious offences committed in the United Kingdom. He argued for retaining the current legislative position and proposed an amendment that followed almost exactly the wording of Section 70(4) of the Army Act. On Report, I argued that such an approach would retain a significant anomaly that even now produces undesirable effects in relation to a small number of the most serious criminal conduct offences. I believe that the noble Lord, Lord Thomas of Gresford, accepted the argument that the current system was anomalous, but he now seeks to address the anomalous position not by removing it, but simply by expanding its undesirable effects. Amendment No. 4 is a retrograde step. As I made clear when we debated this on Report, it is anomalous that the services can deal with many very serious offences committed in the UK carrying sentences of up to life imprisonment but not others. The Bill proposes to remove that anomaly to create a comprehensive system of service law. Why is that so important? First, we must keep at the front of our minds what our forces are required to do and where they are required to do it. We frequently, perhaps increasingly frequently, deploy them overseas. Sometimes we deploy them to places where there is a perfectly acceptable legal system; sometimes we deploy them to places where there is no legal system at all. Sometimes we send them on operations that require them to work in conditions of physical hardship and, often, great danger. However, we expect them to behave impeccably at all times and in every circumstance, not only when they are called upon to apply lethal force. Secondly, the current exclusion in the service discipline Acts prevents the services dealing with cases even when they are best placed to do so. For example, where a death occurs in military training in the UK, are not the services best placed to investigate and judge the degree of negligence involved, the relevance of the training given and other elements of the service context? That must be the relevant consideration for which court deals with an offence, not, as the noble Lord, Lord Thomas, suggested, the fact that a serviceman sent to prison for life will serve that sentence with ordinary criminals who were tried by the Crown Court. Thirdly, the present exclusion can prevent the joint trial of matters which should be charged together. This point operates in two ways: first, where an incident may be dealt with by a combination of both criminal and disciplinary offences; and secondly, where a series of offences has been committed in the UK and overseas. If I may say so, the noble Lord fails to see that serious incidents may give rise to disciplinary and criminal offences. An example might be charging manslaughter along with a disciplinary charge such as disobedience of a lawful command, negligent performance of duty, dangerous flying or hazarding a ship. Only a service court can deal with them together. Should dealing with them together not be possible in relation to an incident which occurred in the service context in the UK? It is not difficult to think of other examples of offences based on those additional criminal offences that the noble Lord wishes to add—for example, possession of a firearm with intent to endanger life, or grievous bodily harm. Finally, the noble Lord, Lord Thomas of Gresford, conceded that there was good reason for a military system to deal with offences that occurred overseas. But, given that our personnel move so frequently between states, it is quite easy to see circumstances where someone may have committed a series of serious offences in different countries, including the UK. These are not far-fetched possibilities; they reflect the practical issues that flow directly from the way our services operate. I recently wrote to the noble Lord, Lord Thomas, and provided details of two recent cases which illustrate the principle. The first concerned a soldier alleged to have committed offences of violence against service personnel in the United Kingdom and in Canada, who subsequently faced a charge of attempted murder in the UK which was dealt with in the UK civilian system. The second was a former soldier alleged to have raped the same female in the UK and Germany. Each demonstrated the current limitations of the civilian courts, and by contrastthe flexibility of the service courts, to deal withsuch cases. The amendment would extend the circumstances in which such limitations would impact upon the administration of justice. 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. The noble Lord, Lord Thomas, in our last debate asked who would decide whether a case would be dealt with in the service or civilian jurisdiction. The answer to that is clear. Our aim is that in relation to all serious offences, as is the case now, a decision should be made in accordance with Home Office protocols on which jurisdiction is the more appropriate. The decision should be made under those protocols by the civilian authorities, whether the police or the Crown Prosecution Service, on the basis of the principles set out in the protocols. Broadly speaking, if the case has any significant civilian context—for example, a civilian victim—the civilian jurisdiction should prevail. This is a common-sense approach which the amendment would deny. Perhaps the greatest practical difficulty which the current exclusion has caused is in relation not even to trial, but to investigations and the use of service police powers. The present legislation and the Bill provide for the investigation, arrest, custody, search or charge by the service police for offences within the service jurisdiction. The current anomaly therefore has the following effect: if a soldier is abroad but is suspected of murder, manslaughter or rape in the United Kingdom, it is at least doubtful whether the service police can undertake searches abroad for evidence of the offence, arrest the suspect or hold the suspect in custody even at the request of UK civilian police. That is unsatisfactory. That is why we propose to remove the provision and why we cannot accept this amendment, which would make the situation much worse and tie the hands of the service police in relation to a large number of other offences. The noble Lord has cited a number of examples where the court martial will be different from the Crown Court, and concluded that as a result the court martial will be deficient. I cannot accept any such suggestion. I do not accept that a military system, which is the equivalent of the civilian system, must be the same as that civilian system in every respect. Our aim is to create a service system as good as the civilian system and appropriate for the services. It must be capable of operating in a service context and have due regard to it. That context can be important in all circumstances of military life, not just on operations. That is because, as I have explained, it is essential for members of the Armed Forces, whether at home or abroad, to have the highest standards of readiness and discipline at all times. It is also important for the service context to be given due weight in relation to any offence, whether or not it occurs on operations. As I have said in earlier debates, the military justice system is well able to deal with the most serious of cases and from time to time sees the participation of High Court judges and senior civilian counsel. The most serious and complex cases can be dealt with, and the system in turn commands the confidence of the public and the Armed Forces. I see no reason why an ECHR-compliant court such as the court martial should not be able to exercise these powers in the United Kingdom when it may do so abroad. As I have set out, it is not hard to envisage circumstances where the interests of justice might be best served, and victims’ rights best protected, by trying charges together. The interests of justice would not be best served by this amendment. For the reasons I have given, I ask the noble Lord to withdraw it.