My Lords, when the Minister introduced this Bill at Second Reading, she said that she detected broad sympathy with its objectives. If she meant the objective of protecting our veterans against repeated and delayed reinvestigations for which there is no new or compelling reason, I am quite sure she was right. The noble Lord, Lord Dannatt, mentioned Major Bob Campbell, as has the noble Lord, Lord Faulks, today. Major Campbell was investigated multiple times over 17 years in relation to the death of an Iraqi teenager—eight times according to the noble Lord, Lord Dannatt, and 11 times according to the noble Lord, Lord Faulks—before being finally exonerated last year by an inquiry led by the noble and learned Baroness, Lady Hallett.
That multiplicity of investigations is something that surely no noble Lord would wish to defend, although the fact that the ICC prosecutor looked carefully at the case and decided not to proceed only because there had been a thorough investigation by the state should be a warning against any complacency that we can weaken our standards of investigation while still keeping the ICC at bay.
Amendment 28 seeks to attack the problem of multiple investigations directly by injecting an element of independent quality control into the investigations process. It would require further investigations to be conditional on compelling new evidence emerging and on an allocated judge advocate considering the totality of the evidence to be sufficiently strong. Like the Henriques review, which I welcome, Amendment 28 has the advantage of straightforwardly addressing the issue of repeated inconclusive investigations. I would, however, voice two reservations, with ICC-proofing in mind. First, is a judge advocate a sufficiently independent figure to apply the filter? Secondly, a high bar is set by the requirement of “compelling new evidence”, a bar which one would not normally expect to be surmounted without the conclusion of precisely the further investigation for which this test would be a precondition. Perhaps I might suggest “there is a compelling reason” as more realistic wording for proposed new subsection (2)(a).
Amendment 17 seeks to address slow investigations. Proposed new subsections (3) and (5) would put some time limits into the process. That, again, strikes me as a solution which, whether appropriate or not in all its detail, is at least directed to a real problem. Let us take the case of Baha Mousa, who died in British custody in 2003 after being hooded, deprived of food and water, and beaten, sustaining at least 93 injuries. The first round of prosecutions, to which the noble Lord, Lord Lancaster of Kimbolton, referred earlier, was characterised by a closing of ranks and achieved only a single conviction, in 2007, on a guilty plea by a corporal to a charge of inhumane conduct. There followed a three-year public inquiry, led by Sir William Gage, which in its three-volume report of September 2011 made detailed findings about the circumstances of Baha Mousa’s death and identified 19 soldiers directly involved in his abuse. The Iraq Historical Allegations Team was tasked in May 2012 to review that report with a view to assessing whether more could be done to bring those responsible to justice.
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A year later, in May 2013, a Divisional Court led by my noble and learned friend Lord Thomas commented in the Ali Zaki Mousa (No. 2) judgment:
“There plainly is a pressing need for a decision to be made very soon as to whether any prosecutions are to be brought”,
adding that
“the delay in making decisions in respect of prosecutions concerning those responsible for the Iraqis who died in custody is a source of increasing concern”.
Yet more than two years after that, in June 2015, it fell to Mr Justice Leggatt to record in the Al-Saadoon case that a team of 13 people were still working on the Baha Mousa case and that the investigation was now expected to take until December 2016 to complete. I believe that, in the end, no further prosecution was brought.
This does not seem to me to be a case in which the test for prosecution should have been made harder to satisfy five years after the incident in 2008; the damning findings of the public inquiry would make that a difficult position to maintain. However, it surely is a case in which much greater speed was desirable, particularly after the public inquiry had reported in such detail. I look forward to hearing what the Minister has to say about the speed of the investigative process and whether there might be value in some injection of discipline as to timing, whether as contemplated by Amendment 17 or otherwise.
Amendments 5 and 6 strike me as more in the nature of damage limitation. One of the unsatisfactory things about the presumption against prosecution after five years is that it risks incentivising those who would spin out or frustrate a valid investigation. These amendments seek to reduce that danger by requiring prosecutors to give weight to the quality and duration of relevant investigations; so far as they go, I support them.
On their own, however, they do not remove the broader misgivings that many noble Lords have expressed about the presumption against prosecution. Those misgivings, which I broadly share, would be substantially reduced by Amendment 3, which would replace the
presumption against prosecution with a more anodyne requirement to consider whether the passage of time has materially prejudiced the chance of a fair trial. Its force lies not so much in what it puts in as in what it takes out.
The question as yet unresolved in my mind is how far it is appropriate for this House to go in relation to these difficult and interlocking issues: whether it would be right for us to take the heart out of Part 1, as Amendment 3, albeit elegantly, would do, or whether we should aim less ambitiously, but still significantly, to incentivise better investigations, as the other amendments in this group seek to do, and to ensure in accordance with Amendment 14—which we shall come on to discuss—that, for the protection of our own service personnel, Part 1 will not apply to crimes within the jurisdiction of the International Criminal Court.