Armed Forces Bill

My Lords, Amendment No. 5 would prevent civilians who are under 18 years of age from being tried before the court martial. On24 October, the European Court of Human Rights gave its judgment in the case of Martin. We need to be clear about what it decided. The case was about the son of a serviceman who was tried by court martial in 1995 for the murder of a civilian in Germany. The court martial was subjectto the same objections as were found to exist inthe Findlay case in 1996, which were remedied by the Armed Forces Act 1996. It is no surprise that the European Court decided in Martin that the court martial was not compliant. The European Court did not decide that courts martial should not try civilians, or that they should not try civilian juveniles; it stated the important principle that a military jurisdiction should be exercised over civilians only if there are compelling reasons to do so. In the case of Martin, there was the possibility of civilian trial in the UK because the charge was murder. The European Court did not decide whether there had been compelling reasons for court martial trial. It did not need to, because it decided the case on the basis that the court martial at that time was not compliant. The court did not go into what it thought would be compelling reasons. In the Martin case, the reasons for court martial trial were mainly to do with the availability of witnesses, most of whom were German. However, there were case-specific factors that might have suggested that it would have been better to try him in a UK court: besides his age, Martin was no longer subject to service law; he had been back in the UK for over a year; and his father was no longer in the Army. The European Court commented that it had considerable doubts about whether it would have found the reasons for court martial trial compelling in this particular case. Looking more generally, however, I believe that we should provide for all civilians subject to service discipline to be subject to a system of investigation and trial that will apply the criminal law of England and Wales, that conducts its proceedings in English and that is ECHR compliant. This is especially important for contractors and others who increasingly accompany our forces on operations abroad. It is in the vital interests of the services themselves, of the civilians who live and work with them and of the civilian population among whom they operate that there is a fair and robust system of justice outside the UK to deal with offences by civilians as well as service personnel. We must recognise that the use of civilians deployed with our Armed Forces has increased in recent years. This is the reason for our general approach in this area. But the largest constituency affected is service families overseas, and we realise that some 20,000 or so children accompany them. This presents real challenges. We must accept, however, that from time to time these under-18s may commit serious offences against other service dependants or even against service personnel in UK service bases overseas. In these circumstances, as the noble Lords, Lord Borrie and Lord Kingsland, have said, the foreign local jurisdiction may be highly undesirable. Even if it affords a compliant court, it will not apply the law of England and Wales and may not conduct proceedings in English. If an accused is convicted, his punishment may not be one that exists in the UK and any period of detention would not be served in the UK. Perhaps, however, I can allay some of the fears that noble Lords may have about juveniles routinely being tried by the court martial. This simply will not be the case. In the vast majority of cases, civilians will be tried in the service civilian court, which is of course presided over by a civilian judge advocate. In relation to adults, this court has the same powers as a magistrates’ court in England and Wales, which means that for an adult accused it may try any offence that in England would not have to be tried in the Crown court. However, in relation to juveniles, the offences that the service civilian court may try are more numerous. When dealing with a juvenile, the service civilian court has the same powers as a youth court in England and Wales. This means that the service civilian court is able to try any offence of which a juvenile is accused except the homicide offences, certain firearms offences and offences where an adult would face 14 years’ imprisonment. Noble Lords will see, therefore, that only in exceptional circumstances would a juvenile civilian appear before the court martial. On those occasions when they do, the court will of course be presided over by a civilian judge advocate who will have had the same training as Crown court judges in relation to juveniles. Furthermore, in the Bill we have the ability to provide that, when civilians appear before the court martial, the lay members are themselves civilians—indeed, it may be that the entire panel will be civilian. These provisions will be contained in court martial rules, which will be subject to the affirmative resolution procedure, so noble Lords will have adequate opportunity to scrutinise them in due course. I hope that the provisions in relation to civilians and juveniles in particular will lead noble Lords to see the amendment as unnecessary and undesirable. In view of the reasons that I have given, I hope that the noble Lord will agree to withdraw his amendment.