Armed Forces Bill

moved Amendment No. 5: Page 18, line 40, at end insert- ““( ) No civilian subject to service discipline under the age of 18 years may be prosecuted before the Court Martial for an offence under this section.”” The noble Lord said: My Lords, Amendment No. 5 follows on from some of my remarks on Amendment No. 4, which I do not propose to repeat. The wording of the amendment echoes the decision of the European Court that was delivered last week. Perhaps I may remind your Lordships that Sir Nicolas Bratza was the number two in that court, sitting next to the president. He is a highly distinguished jurist from this country who used to represent the Government in many cases. I have indicated the circumstances of the case. Paragraph 43 of the decision of the court states that the court, "““recalls, by way of preliminary remark, that there is nothing in the provisions of Article 6 to exclude the determination by service tribunals of criminal charges against service personnel. The question to be answered in each case is whether the individual’s doubts about the independence and impartiality of a particular court-martial can be considered to be objectively justified and, in particular, whether there were sufficient guarantees to exclude any such legitimate doubts””." That is the position with regard to service personnel. The court said that it is, "““a different matter where the national legislation empowers a military court to try civilians on criminal charges … While it cannot be contended that the Convention absolutely excludes the jurisdiction of military courts to try cases in which civilians are implicated, the existence of such jurisdiction should be subjected to particularly careful scrutiny, since only in very exceptional circumstances could the determination of criminal charges against civilians in such courts be held to be compatible with Article 6 ... The power of military criminal justice should not extend to civilians unless there are compelling reasons justifying such a situation, and, if so, only on a clear and foreseeable legal basis””." In the particular case, it was not finally decided whether there were compelling reasons, but the issue concerned whether a number of witnesses would have to be flown from Germany to this country. The fact that, when the trial was held in Germany, witnesses not simply from the UK but from all over the world were flown in to give evidence is perhaps to be noted. The final conclusion was that the 17 year-old boy was justified. In its decision, the court says that it, "““considers … concerns about the independence and impartiality of his tribunal to be objectively justified. Accordingly it finds that there has been a violation of Article 6 §1 of the Convention””." As your Lordships know, Article 6.1 deals with the need for a fair trial. I submit to your Lordships that there should be developed, along with the service civilian court, a civilian jurisdiction for juveniles in which the case is tried not by officers, but by a judge advocate, along with suitably qualified and experienced people who have had the same training for dealing with juveniles as magistrates have had. That is how juveniles should be dealt with. We were told on Report that there are 20,000 juveniles with service people overseas. So an awful lot of youngsters are involved. If they commit more serious offences such as murder and manslaughter—the very rare cases where one sees a juvenile person tried in the Crown court—they should be tried in a Crown court in this country in the ordinary way. We currently try in this country offences involving alleged homicide which have taken place overseas. Your Lordships will remember particularly last September’s case at Colchester, where paratroopers were tried for murder. There is no reason why juveniles who are charged with murder cannot be tried in this country. Unfortunately, this Bill misses the opportunity and misses the trick. From Second Reading through all its stages, we have advanced the argument that juveniles should be dealt with as they are in this country. The Government have not listened on this occasion. Again, I make no personal criticism of the Minister, but it is a fact that a youngster in the same situation as the defendant Martin would be liable to be charged and tried abroad by court martial if the circumstances were appropriate. This is not acceptable. We are living in the21st century. There are people, particularly those who sit on the Cross-Benches, who devote their lives tothe problems of youngsters and who have made significant contributions to looking after their welfare. That is the issue of principle that arises here. I have not, though I was very much tempted, extended my amendment to cover all civilians, which would be in line with the judgment of the European Court that I quoted to your Lordships. I have confined it to the specific instance of juveniles. I shall seek your Lordships’ support in due course after hearing what the Minister says. I beg to move.