My Lords, the issue raised by Amendments 1 and 2 is whether a serving member of the Armed Forces is a citizen in uniform and entitled to the same protection of his rights and freedoms as any other citizen, or indeed as a member of any other disciplined service, such as the police, or whether, as a matter of policy, he and his family should, if they come with the character of persons subject to service law, be subject to a fundamentally different judicial procedure in respect not just of breaches of the disciplines inherent in his trade or calling, but, under Section 42 of the Armed Forces Act 2006, of the entire body of criminal law, including the most serious charges.
The system of jury trial probably predates the Norman Conquest. It involves the trial of serious criminal charges by 12 members of the public. It has been like that for the best part of 1,000 years. From at least 1367, unanimity was required, whether the verdict was guilty or not guilty. Six hundred years later, by Section 13 of the Criminal Justice Act 1967, majority verdicts were allowed in the ordinary criminal courts. With the consent of the trial judge, after a period of appropriate deliberation and directions, a verdict by a majority may be received. Where there is a finding of guilt, the vote has to be stated in open court. Where there is an acquittal, no majority is stated.
The criminal standard of proof is guilt beyond reasonable doubt: the jury has to be sure. Sir Patrick Devlin said, in his famous book Trial by Jury:
“The criminal verdict is premised upon the absence of reasonable doubt. If there were a dissenting minority of a third or a quarter
that would of itself suggest to the popular mind the existence of a reasonable doubt and might impair public confidence in the criminal verdict”.
That was in 1952, when majority verdicts might suggest that a reasonable doubt existed.
Public confidence is everything. I do not propose to repeat everything that I said at Second Reading and in Committee but it is obvious, by the series of media storms that we have endured and the public demonstrations that have taken place, that the verdict of a court martial does not command public confidence. To draw a very topical parallel, it is inconceivable that if police officers involved in the Hillsborough disaster were to be tried for gross negligence and manslaughter by a panel of senior police officers, the outcome would be acceptable.
The system of courts martial has its origins in a statute of Edward I in 1279, which enacted that, by virtue of the royal prerogative, the sovereign of England has the right to command, and thereby the power to regulate and discipline, the military forces of the nation. The Court of the Constable and Marshal administered military law, although the office of constable was effectively abolished when Henry VIII beheaded the then Lord High Constable—so the right to try military offences devolved to an ad hoc committee of officers, known first as Marshal Courts and then as courts martial. The authority of courts martial later derived from a succession of Mutiny Acts passed between 1678 and 1878, then subsequently by the Army Act of 1881 and its successors, which will shortly include this Bill. So the two systems of civil and military law had quite different origins and it is only very slowly that they have converged—but converged much more rapidly since the European Court of Human Rights delivered a devastating verdict upon the system back in about 1989.
Every move has met with resistance from the military and the civil servants advising them. For example, I read with interest today a debate of 1926 in the other place where Ernest Thurtle, the Member of Parliament for Shoreditch and the son-in-law of George Lansbury—later leader of the Labour Party—sought the abolition of the death penalty for cowardice or desertion. The same old familiar arguments were produced: that it was bad for discipline and would reduce the determination of soldiers to fight if the death penalty for cowardice were abolished. The Government of the day had no answer to the argument that the Australians were under no such constraint when their bravery and discipline at Gallipoli and elsewhere could not be doubted. That Bill eventually got through in 1930 under a Labour Government but was rejected by the House of Lords, notably led by Lord Allenby and other retired generals. The House of Commons had to insist upon it for it to go through.
My Amendment 1 seeks to replace the current Section 160 of the Armed Forces Act 2006 to take another step towards convergence. In the third edition of Rant on the Court Martial and Service Law, edited by the current Judge Advocate-General, Judge Blackett, paragraph 5.126 states:
“An undisclosed simple majority decision in a serious case where the defendant is at risk of a significant custodial sentence might be perceived as being inherently unsafe, since the outcome
rests on a knife edge … This provision is a legacy from the past, which represents a significant weakness in the Service justice system and a striking contrast with the much more secure arrangements in the Crown Court. When there is legislative opportunity the law should be changed”,
in a court martial, said the Judge Advocate-General,
“to require either a unanimous verdict, as, for example, is the case in the Court Martial system in other Commonwealth countries such as New Zealand or at least a significant and disclosed majority”.
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When I put forward this amendment in Committee, the Minister argued as follows. First, he said that, “The great advantage” of a simple majority,
“is that it avoids a ‘hung jury’: there is no need for a retrial”.—[Official Report, 1/3/16; col. GC 51.]
That puts the cost and expense of a retrial ahead of justice—and is a court martial swift and final? Judge Blackett said last week, in the Ellement case:
“This case should have been heard five years ago”.
Talking to the family, he said:
“I apologise to you that it has taken so long to resolve this issue. The extreme delay … prejudiced the defendants, Anne-Marie and justice generally”.
That is a current case with five years’ delay; and there are other cases in the pipeline where there are long delays from the date of the alleged offence.
Secondly, the Minister said in Committee that,
“there are no lingering doubts outside the court”,
if it is not,
“apparent whether the verdict is unanimous or by majority”—
I repeat, “no lingering doubts”. But my amendment expressly provides that only when there is a guilty verdict would there be an announcement that it is by a majority, which is what happens in the Crown Court. Nothing is said when it is an acquittal.
The Minister asked whether a defendant can return to his unit after an acquittal without murmurings. Of course he can, as much as if he were acquitted under the current system. Thirdly, the Minister said that,
“the deliberations of the lay members of the court”,
would be exposed and that confidentiality is an,
“important safeguard of the independence of the lay members”.—[Official Report, 1/3/16; cols. GC 51-52.],
and an ingredient of a fair trial which would be destroyed. But majority verdicts are accepted in the Crown Court and nobody says that the deliberations of the jury are exposed—they never are—or that the jury lacks independence.
The forces need to recruit and to retain their recruits. They may be prepared to be disciplined and trained, but will they or their parents be prepared to subject themselves to a system of justice in which the public generally have no confidence? In the case of Sergeant Blackman in the Court Martial Appeal Court the Lord Chief Justice, having found against the appellant, nevertheless commented that there would be an opportunity for Parliament to legislate on the question of majority verdicts. That was the main point of the appeal against conviction by Sergeant Blackman: that it was a simple majority that had convicted him.
The purpose of Amendment 2 on sentencing is so that the judge advocate should be the sole sentencer after consultation with the panel. At the moment it is
the panel which decides the sentence, with a judge advocate having a vote on that decision. The Minister rejected that argument in Committee and said that the change would be,
“an erosion of an important difference between the civilian criminal justice system and the service justice system”.
It is my case that they should be brought closer together and that no question of erosion should arise.
Secondly, the Minister said:
“The military context and service experience should be considered during sentencing as well as in findings of guilt or innocence”.—[Official Report, 1/3/16; col. GC 53.]
My amendment says that the judge should sentence after consultation with the panel and that any input can come from the panel about service issues.
Thirdly, the Minister said that the court martial was part of an overall system of justice and discipline and that the statutory principles as set out in the 2006 Act—the maintenance of discipline and the reduction of service offences—meant that there had to be the direct involvement of the panel in sentencing. I am suggesting the direct involvement of the panel in sentencing, but not to make the decision. In any event, said the Minister, the judge will advise and has a casting vote.
Let us take a panel of seven. If the judge is added to it, eight people are deliberating on a sentence. That means that the professional judge with experience of sentencing can be outvoted seven to one, six to two, five to three. It is only if the panel is split four-four that he has the casting vote. My case is that sentencing is an art. It requires a great deal of training. Judges of great seniority still go for training in sentencing. I have been out of the criminal courts for about three years but I would hesitate very much to go into court now and suggest what a sentence should be.
Crime has come down but prison numbers have gone up. Why? It is because prison sentences are longer. There are different types of criminal sentences. Some involve custody and some do not. Sentencing is a professional job. The panel members are individual officers or warrant officers who come and sit on one case. They may never have had any connection at all with the criminal justice system. They sit on one case and have the responsibility of deciding the sentence. It should be the judge who decides, with the advice and help of panel members who have military service and experience. I beg to move.