My Lords, in this group I shall address Amendments 3, 5, 6, 17 and 28. This group seeks, in a variety of ways, to deal with a problem that the Minister identified in her helpful concluding remarks on the last group—namely, stopping the endless shoddy reinvestigations, because that is the real problem.
Since the year 2000 there have been 27 prosecutions in relation to Iraq and Afghanistan. The Ministry of Defence gave evidence to the Joint Committee on Human Rights, which led to its ninth report, dealing with this Bill. The Bill team co-ordinator—I think that was his exact title—Mr Damian Parmenter, did not identify as the problem that the wrong decisions had been made in relation to prosecutions. He identified that the problem was with the reinvestigations, as did Mr Mercer in the other place and Judge Blackett. We need to address the issue directly, not indirectly. The question that I had asked and was waiting most keenly to be answered by the Minister was how the Bill dealt with this presumption—and answer came there none from the Minister, I would submit. If the issue is not the decision about prosecution but the endless process of investigation, this Bill does not deal with it.
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These amendments actively seek to deal with this problem. Amendments 3, 5 and 28, in the name of my noble friend Lord Tunnicliffe, in effect seek to do three things. First, they remove the presumption against prosecution after five years. They say instead that after five years the prosecutor must have regard to whether there can be a fair trial, given the time elapsed. Any reasonable prosecutor would consider that anyway, but it is right to make that explicit.
What is more, my noble friend’s group of amendments keeps in the considerations that the Bill already has—namely, the effect on the prospective defendant of a war situation, and the fact that the passage of time will have affected memories—and adds a third consideration, one that everyone would agree with, of what has been the quality and duration of the relevant investigation. In other words, if the quality and duration had been poor, that would militate against prosecution. So instead of there being a presumption against, the prosecutor is focused on the question of whether there can be a fair trial after five years, having regard to the very same considerations that the Government would wish them to have regard to, but also to the quality and duration of the relevant investigations.
Amendment 28, which comes after Clause 12, also provides that once an investigation is over and concludes that there should not be a prosecution, a reinvestigation can take place only if
“compelling new evidence has become available”
and
“an allocated judge advocate determines that the totality of the evidence against the accused is sufficiently strong”.
It has, therefore, to be compelling evidence to justify a new investigation.
I think all noble Lords have the greatest respect for the noble Baroness, Lady Goldie. We are incredibly keen to get a solution to the problem that the noble Lord, Lord Lancaster, and the noble Lord, Lord West of Spithead, referred to. The proposals made by my noble friend Lord Tunnicliffe, and indeed those from the noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Smith, basically say that after six months you need permission from an appropriate authority to go on and, when you come to the end of the investigation and decide not to prosecute, you need permission from an appropriate authority to reopen the investigation. These amendments are dealing with the problem, which is not the decisions made in the 27 cases but the stop-start cloud hanging over military personnel for years and years. I beg to move.