My Lords, I am very conscious of the close interest taken by the noble Lord, Lord Thomas of Gresford, and my noble friend Lord Attlee, as well as by the noble Lord, Lord Tunnicliffe, in the operation of the court martial and I welcome the opportunity to discuss these matters today. The first amendment of the noble Lord, Lord Thomas, would amend Section 155 of the Armed Forces Act 2006, which makes provision with respect to the constitution of the court martial. It provides that only officers or warrant officers may be lay members of the court martial. As the noble Lord explained, Amendment 1 would change this; it would also provide that court martial rules may provide that lay members must,
“be drawn from each and every branch of the armed services”.
The noble Lord’s next amendment, Amendment 2, would insert a new Section 155A into the 2006 Act. The effect of proposed new Section 155A would be to allow serving personnel of any rank to be lay members.
The court martial consists of a judge advocate and between three and seven lay members. Lay members of a court martial, who are also referred to as the panel or the board, have a role in relation to findings
on a charge and sentencing. The lay members for any proceedings are specified by or on behalf of the court administration officer. Only commissioned officers and warrant officers may be lay members. Amendments 1 and 2 would change this, as I have said, by allowing members of the Armed Forces of any rank to be lay members.
It will not surprise the Committee to hear that I am resistant to the proposals that the noble Lord, Lord Thomas, has put forward. The first point I wish to make in response is that the existing rules governing lay membership of the court martial result from the fact that the court martial is part of an overall system of justice and discipline. Those rules recognise the importance of experience of command and the exercise of service discipline at a sufficiently high level to enable lay members to assess the actions of those who appear before them in the court martial in the appropriate command and disciplinary context. The role of a lay member in the court martial differs from that of a juror in a Crown Court trial. In the Crown Court, the jury’s role is limited to findings of fact: sentencing is a matter solely for the judge. In the court martial, the lay members and the judge advocate vote on the sentence. In considering sentencing, they must have regard to the maintenance of discipline, so must have a strong understanding of what things affect discipline and what things do not.
All service courts have to apply the statutory principles set out in the Armed Forces Act 2006 as to the purpose of sentencing. These are closely based on the civilian sentencing principles but include, in addition, “the maintenance of discipline” and the reduction of “service offences”—that is, both service discipline offences, such as looting or absence without leave, and criminal offences.
These principles reflect four special aspects related to the service justice system. The first is the existence of disciplinary offences unknown to the general criminal law, such as absence without leave. The second is the fact that the military context of an offence may be relevant to sentencing—for example, an assault against a superior or an inferior may make an offence more serious, and then there is the well-known naval concern about the effect on morale and discipline of mess-deck theft.
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The third aspect is that even if the offence is not committed in a service context, the sentence imposed may be justified by reference to the fact that the offender is in the Armed Forces—for example, a drugs offence may be seen as more serious if committed by a member of the Armed Forces because of the services’ policy on drugs and the fact that members of the Armed Forces are well aware of this. The fourth is that the Armed Forces Act 2006 provides for certain penalties that require an assessment of whether they are appropriate from a broadly disciplinary point of view; service detention and dismissal are the main ones. It is for these reasons that there is a direct involvement of the lay members in sentencing.
There is a risk that more junior members of the Armed Forces may lack experience of command and of the exercise of service discipline at a sufficiently
high level to enable lay members who assess the actions of those who appear before them in the court martial in the appropriate command and disciplinary context. The second point to make is that the existing rules also seek to guarantee the independence and impartiality of those members, to ensure that each member may act in accordance with conscience. I suggest that the presence on a court martial board of lay members of considerably more junior rank than the accused or other board members may put that at risk. That is also why provision is made in court martial rules so that the president of the board must always be of superior rank to every person to whom the proceedings relate.