In moving this amendment, I will couple it with consideration of Amendments 15 and 16.
Perhaps I may go first to Amendment 15, which seeks to extend extraterritorial jurisdiction in sexual offences. Since 2006, the problem concerning sexual
offences has come very much more to the fore in this country and elsewhere. Some 18 months ago, I gave evidence to a committee set up by the Department of Defense in Washington where precisely this issue was being considered. My purpose there was to outline the system of court martial in this country, specifically in dealing with sexual offences. I and the Director of Service Prosecutions, and one or two other experts in the field, gave evidence about the British system. The following day, no fewer than 24 generals and above—I am not quite sure what the term is—were giving evidence to that committee. They were headed by the chief of the general staff of the United States. Unsurprisingly, the committee came out in favour of the generals and not in favour of the British system of court martial.
Sexual offences are a matter where there is not, at the moment, extraterritorial jurisdiction. Amendment 15 has been tabled simply to give to the ordinary courts in this country—the Crown Courts—the jurisdiction, if my Amendment 4 were accepted, to deal with sexual offences in this country. It has no other purpose, so the important amendment is Amendment 4.
Prior to the 2006 Act, courts martial in this country had no jurisdiction to try cases of murder or manslaughter within the United Kingdom. Courts martial could try such cases if they were sitting abroad but not in this country. One of the amendments to the system made in 2006 was to give courts martial sitting in this country jurisdiction over murder and manslaughter.
The four types of offences that I have set out in subsection (2) of the new clause proposed in Amendment 4 are the most serious in the calendar. Murder and manslaughter are obvious. The offences under the Sexual Offences Act to which I have referred—I quoted specific clauses from the Sexual Offences Act 2003—are given extraterritorial jurisdiction by my Amendment 15 so that they can come before the courts of this country under Amendment 4.
Subsection (2)(d) of the proposed new clause deals with war crimes—torture and matters of that sort—where there is existing extraterritorial jurisdiction. I have been involved in a number of murder cases that have occurred abroad, in Iraq and Germany, and to my mind they have been unsatisfactory. I do not quibble with the results but I find it unsatisfactory that those trials should be by court martial. We are dealing with the most serious of cases—those that cause the greatest problems for the public—where public perception is either, if a person is acquitted, that he would be acquitted by fellow members of the armed services or, if he is convicted, that the officers have convicted him for murder whereas a British jury would not have done so. That is the thrust of the campaign about Sergeant Blackman, but there have been other cases where similar feelings have been expressed by the public.
I think that we have come to the end of trying these cases by courts martial. If a murder happens abroad—in Afghanistan, Iraq or Germany—the case is brought back to this country. Cases have not been brought back from Germany because we have been in Germany but we are retreating from there. Our Armed Forces are pulling back in November, so we can forget about that. The case of Martin, to which I referred at Second
Reading, is a case in point. The 17 year-old son of a soldier—not a soldier but the son of a soldier—was brought back to this country, kept in Colchester prison and returned to be tried for murder in Germany by a court martial. Although the House of Lords Judicial Committee could not interfere as an abuse of process, as I said in my Second Reading speech, the European Court of Human Rights said that the trial was not fair. We cannot have that.
Let me go back a little. Courts martial abroad could try cases of murder and manslaughter because of the difficulty of travel. Back in the 19th century, if troops were deployed abroad, it would be quite impossible to hold somebody for trial by the civil courts here until such time as the forces returned to this country. Consequently, courts martial were necessary for trying murder and manslaughter abroad rather than having local courts do it, where the ability of the defendant to understand what was going on—never mind the quality of the justice proffered—was always an issue. That is not the case now. The practice is to bring them home and to try people accused in Iraq of murder, as in the case of Baha Mousa, which was tried in Bulford, or the case of the paratroopers who were tried at Colchester, or the Bread Basket case, which was tried in this country. The practice in serious cases is to bring people back. Where we are dealing with sexual offences, which are extremely delicate and difficult, and today attract sentences of up to 35 years, those too should be in the ordinary civil courts of this country before an ordinary jury.
I do not accept that an ordinary jury trying a military case is incapable of understanding the ethos, aura or context in which a particular offence has been committed. Juries every day may be trying a person for murder in a context with which they are completely unfamiliar. Whether it is an incident in the back streets of Birmingham or a fraud involving the City, juries cope. It is the duty of the prosecution in the case so to clarify the issues and the context that a jury is fully aware of the significance of the evidence that is put before it.
Things have changed. Juries can be really quite different. Not so long ago in Southwark Crown Court, for example, it turned out that a member of the jury was the sister of a High Court judge and of a Member of this House, and her father had been a Home Secretary. We did not know this; it just slipped out at the end of the case. Juries are an amazing cross-section of people who represent people and who each contribute to the decision that is taken. I have every confidence in Crown Court juries. Serious cases should be brought back and tried here. That is the purpose of my amendments.
However, Amendment 16 is different, as it is an alternative. If my submissions to the Committee are not acceptable to the Government, they ought to consider my Amendment 16 as an alternative. This is where a person who is alleged to have committed a service offence when on active service in operational circumstances can elect to be tried in the ordinary courts of this country. What is the purpose of that? The main purpose—really the only purpose—is that people and the media cannot criticise a Crown Court
jury or, if the person has decided that he wishes to be tried by court martial but has been given the chance of a trial by the Crown Court, the system cannot be criticised for failing that individual and giving him the justice that he seeks. Amendment 16 contains an alternative approach that an accused person could elect to be tried in a civilian court. That would remove much of the sting of the criticism, which, as the Committee has heard, is my concern.
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