My Lords, I start by reminding your Lordships that at Second Reading I expressed my concern about the reputational damage that might be done to the forces’ disciplinary service by the possibility of future cases attracting the sort of adverse publicity that has occurred in the past. When we dealt with the 2006 Act we sorted out many of the problems that then existed, and the system was completely changed so as to reflect decisions made in the European Court of Human Rights about fair trial. I had no concerns about Sections 1 to 39 of the Act, which dealt with what I regard as disciplinary offences—indeed, “discipline” and “offences” are headings in Part 1 of the Armed Forces Act 2006. They might be offences such as assisting an enemy, mutiny, desertion, insubordination, neglect of duty, offences against service justice, hazarding of ships and so on. To my mind, those things were satisfactorily dealt with at that time.
However, Section 42 of the Act was concerned with criminal conduct. Repeating provisions in earlier service disciplinary Acts, it effectively made an ordinary criminal offence part of the service discipline system, so that:
“A person subject to service law, or a civilian subject to service discipline, commits an offence … if he does any act that … is punishable by the law of England and Wales; or … if done in England or Wales, would be so punishable”.
In other words, the whole corpus of the criminal law that is used in our ordinary criminal courts was imported into the service disciplinary system.
At that time, I moved certain amendments having regard to Section 42 which I hoped would mirror the proceedings that happen in the Crown Courts of this
country when such criminal offences come before those courts. I do not apologise for repeating some of those amendments today.
We were concerned particularly about justice between state, the prosecution and the defendant, but there is another element in it which I think was of less significance at that time than it is now; that is, the position of victims. We have seen such adverse publicity—including, for example, the Sergeant Blackman case—which is damaging to the service disciplinary procedures. It is very often proceedings or publicity that is sought by the victims of various offences.
I want to take a step back to look at the police and the banks in this context. As an example, PC Harwood was prosecuted for manslaughter in the Old Bailey for the death of Ian Tomlinson, the person whom he struck in a demonstration in the City of London in 2009. If that prosecution had been carried out by senior officers in the police and they made the decision that he was not guilty of the manslaughter offence—as he was found by an ordinary jury in the Old Bailey—I am sure that there would have been very great public concern. Had the officers who were concerned with the death of Jean Charles de Menezes in 2005 been prosecuted before a panel of senior police officers, there would have been a public outcry.
Some years ago under the Labour Government we were concerned with attacks upon the jury system. There was a strong call at that time for there to be special juries consisting of City people—accountants, bankers—who would understand the workings of the City in a way which an ordinary jury, it was argued, could not possibly comprehend. That was before the 2008 crash. Bankers have become rather less popular than they were in those days. One can imagine the public outcry that would have followed if bankers had been asked to determine the guilt or innocence, the honesty or dishonesty, of one of their own kind.
I know that there are differences, but I use the police and bankers to illustrate public perceptions of justice that is carried out by the services. I do not agree that there is injustice, but I suggest that there is a lack of confidence among the public and victims regarding the way that their concerns may be treated in the military court martial system. I declare an interest as the chairman of the Association of Military Court Advocates. I have had experience of serious murder cases and so on in the services and I have every confidence in the judges and those who appear in those court martial courts. However, I am concerned about public perception.
There are two ways in which one can approach this. One can say, let us change the system so as to make it closer to the Crown Court. Or one can say, take the serious offences away from the court martial system altogether. I am following both as alternatives in the amendments I am putting forward. I am now speaking to Amendments 1, 2 and 3 and draw your Lordships’ attention to them.
The first amendment would widen the pool of those who can sit on the panel that decides guilt or innocence in a court martial. Instead of having officers and perhaps one warrant officer—the most senior of the other ranks—sitting on a court martial as at
present, it should be open to all ranks. There are those who are used to looking at the forces as a family with a familial feeling towards its members and who feel that officers are responsible for their men, as they know them and they know the circumstances, and that they should be the people who decide and so on. I know that that is the system but there is nothing particularly revolutionary about having all ranks sitting on courts martial. Although there are criticisms of the American system of courts martial, voiced in particular by my opposite number in the United States and the national military justice organisation that he heads, nevertheless in 1952 it was decided that other ranks could sit on courts martial where a defendant asked for that.
It seems to me that the time has come to widen to other ranks the people who can appear in courts martial, so Amendment 2 says:
“A person is qualified for membership of the Court Martial if he or she is a serving member of the armed forces and is subject to service law”.
It does not have to be an officer or a warrant officer; people can be drawn from a wider pool. It is my view that that would give rather more public confidence in the system of courts martial than the top-down system that we have at the moment, and have always had, of officers and the warrant officer sitting in judgment.
Noble Lords will see that Amendment 3 deals with another aspect. Whereas in the ordinary courts of this country where we have a jury sitting, guilt is established either by the unanimous verdict of the jury or by a majority consisting of no less than 10:2 or, if the jury has dropped to 11 members, 9:2, the system in the Armed Forces is, and always has been, that it is determined by a simple majority. Therefore, if five sit on the panel, a person can be found guilty by 3:2, and, if seven sit, it can be 4:3. The way in which the panel votes is never made public. It is never said that this is a majority verdict; a simple majority verdict is returned. Consequently, in Amendment 3 I suggest that we should change the system and that, where there are not fewer than seven members of the court, five should agree on the finding, and, where there are five members of the court, four should agree on the finding.
I repeat that the current position is that the judge advocate has no vote. If the finding is one of guilt, the president should state in open court the numbers who agreed and dissented from the finding and the panel should have time, as does an ordinary jury, to consider reaching a unanimous verdict before coming to its conclusion. At the moment, it is theoretically possible for the panel to retire and for a verdict by a simple majority to be passed immediately, with the panel returning to court and delivering the verdict. If the verdict is one of guilt, the defendant does not know that there were those who did not accept the finding.
New subsection (5) proposed under proposed new subsection (2) in Amendment 3 is also important. Currently, the panel with the judge advocate taking a part determines the sentence, but we have got to a situation where sentencing is so complex that I suggest that the judge advocate alone should pass the sentence—there are so many options and precedents that it should not be decided by the panel—after consultation with the members of the court martial.
3.45 pm
I shall return to the basic theme that I am putting forward. I know that there are those in senior command who feel that, in some way, there is interference with the line of command by taking the judicial system outside. Well, that has already been done: it happened in 2006. There is now an independent Director of Service Prosecutions. There is a Judge Advocate-General and there are judge-advocates, who are not serving members of the military. We apply in courts martial more or less the rules of court, as are determined in the Crown Court, so it has moved a long way from its original set-up. I think that it should move that little bit further in order to give the public more confidence in the findings that it makes. I beg to move.
Amendment 1A (to Amendment 1)