My Lords, once again we have all been struck by the quality of the debate, which has penetrated issues that are legitimately at the heart of the Bill. Noble Lords who have raised issues related to the Bill are rightly seeking clarification and reassurance about what different components of the Bill mean, and particularly where the whole issue of investigations lies in relation to it.
I will begin with Amendment 3, moved by the noble and learned Lord, Lord Falconer of Thoroton. The Government’s intention with the measures that we have introduced in Part 1 of the Bill is to provide demonstrable reassurance to our service personnel and veterans. It is not only a worthy aspiration but a necessary one. It is a demonstrable reassurance in relation to the threat of legal proceedings arising from alleged events occurring many years earlier on operations overseas. This has meant balancing the need to introduce protective measures for service personnel and veterans and remaining compliant with our domestic and international obligations.
On the one hand, the measures set a high threshold for a prosecutor to determine that a case should be prosecuted, as well as ensuring that the adverse impact of overseas operations will be given particular weight in favour of the serviceperson or veteran; on the other hand, as I have previously said, the measures do not and cannot act as an amnesty or statute of limitations, do not fetter the prosecutor’s discretion in making a
decision to prosecute, and are compliant with international law. I believe that we have achieved this balance, this equilibrium, in the combination of Clause 2, the presumption, and Clause 3, the matters to be given particular weight. We are providing the additional protection that our service personnel and veterans so greatly deserve, while ensuring that in exceptional circumstances individuals can still be prosecuted for alleged offences.
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Amendment 3, tabled by the noble Lord, Lord Tunnicliffe, and moved by the noble and learned Lord, Lord Falconer of Thoroton, would, in effect, replace the presumption against prosecution with a requirement that the prosecutor, when deciding whether or not to prosecute a case, should consider only whether the passage of time has materially prejudiced the prospective defendant’s chance of a fair trial. However you cut and dice that amendment, this is a much-diminished reassurance to our Armed Forces personnel from what is currently in the Bill. My noble friend Lord Lancaster of Kimbolton and the noble and learned Lord, Lord Hope of Craighead, offered helpful observations in that respect.
The amendment not only removes the high threshold of the presumption but seeks to replace it with an assessment of whether or not the passage of time would prejudice the chance of a fair trial. Almost certainly, such a criterion is likely already to be considered by the prosecutor when applying the existing evidential and public interest tests. The Bill also already addresses the potentially negative effects of the passage of time, by requiring a prosecutor to give particular weight to the public interest in finality, in Clause 3(2)(b).
We are not suggesting—I am grateful to the noble Baroness, Lady Chakrabarti, for acknowledging this—that service personnel or veterans have been subject to unfair trials. However, we are seeking to highlight not only the difficulties but the adverse impacts on our personnel of pursuing allegations of historical criminal offences with protracted and repeated investigations. Justice delayed is often justice denied, for defendants and victims.
As I said, I believe that Clauses 2 and 3 provide the appropriate balance between victims’ rights and access to justice on the one hand, and a fair and deserved level of protection for our service personnel and veterans on the other. Removing the presumption, as the amendment proposes, would remove this balance, with the diminished reassurance to our Armed Forces personnel. I therefore urge the noble and learned Lord to withdraw his amendment.
Amendment 5, tabled by the noble Lord, Lord Tunnicliffe, and the noble and gallant Lord, Lord Boyce, seeks to add an additional factor to Clause 3. Specifically, it aims to ensure that the quality and duration of relevant investigations are given weight by a prosecutor where this tends against prosecution. I can see that this addition is well intended, but it is not necessary, and I will endeavour to explain why.
At the point at which the prosecutor will be considering the factors in Clause 3, any investigations will most likely have been completed. The service police already
apply the evidence sufficiency test to determine whether a case should be referred to the prosecutor, so it is unlikely that a poorly run investigation would bring forward good enough evidence for the evidence sufficiency test to be met, and for the service police to determine that a case should be referred to the prosecutor. Even if the service police determine that the evidence sufficiency test has been met, the prosecutor will then apply the two-stage process: first, whether there is sufficient admissible evidence to establish a realistic prospect of conviction and, secondly, whether prosecution is in the public and service interest.
At this point, if there have been shortcomings in an investigation—for example, because of the complexity of the operational environment—evidence may be inadmissible due to the conditions in which it was gathered, or simply not available at all, and this may result in the prosecutor assessing that there is not a realistic prospect of conviction. While it is therefore reasonable to assume that a poorly run investigation is unlikely to meet the threshold for a prosecutor to determine that a case should be prosecuted, the same could equally be the case as a result of a comprehensive investigation, but where the evidence is simply not available or is deemed not to be sufficient.
As I appreciate the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Thomas of Gresford, will understand, this reflects the reality that an investigation on an overseas operation will inevitably be impacted by the operational context and the environment, and there are many reasons why the evidence, or the quality of the evidence required, may not be available and that delays may occur. This I why I submit that it is not simply a case of “good” or “bad” investigations. I think it is difficult to understand how a prosecutor could assess the quality of the investigation or whether the amount of time that it has taken for it to be completed is appropriate and then apply these assessments in practice.
I also ask noble Lords to recognise that all elements of the Armed Forces, including the service police, have come a long way since the early days of the Iraq conflict. Lessons have been learned. Processes, policies, training and education have all been updated to reflect the experiences of those early days and matters which have arisen since. We are continuing to work to secure assurance that our investigative capabilities are as good as they can be, and the commissioning of the review by Sir Richard Henriques is a clear commitment in this respect.
It is the Government’s view that Clause 3(2)(b) already addresses the issue of investigations in an appropriate way, in the context of the public interest in finality, and that a separate assessment of the adequacy of the investigation is neither appropriate nor required. In these circumstances, I would urge the noble and learned Lord, Lord Falconer of Thoroton, to withdraw the amendment.
Amendment 6, in the name of the noble and learned Lord, Lord Thomas of Cwmgiedd, also seeks to add an additional factor to Clause 3. More specifically, it aims to ensure that the standards and independence of relevant investigations are given particular weight by a relevant prosecutor where this tends against prosecution.
The noble and learned Lord, Lord Thomas of Cwmgiedd, said that our improvements in investigations are all in the future. With the greatest respect, I suggest that this is not the complete picture. As I have already said, all elements of the Armed Forces, including the service police, are continually improving the way in which they operate, so let me try to reassure the noble and learned Lord. At this point, I will also try to reassure the noble Lord, Lord Browne of Ladyton. He felt that my argument that the Bill could improve investigations was unconvincing, so I shall try again.
Let me be clear: I believe that investigations need to be thorough and robust, and there were flaws in the past. But there are two distinct issues here. The first is the investigations and what they find out, and the second is what a prosecutor does with the results of the investigation. I would suggest that these are different issues. I say to the noble Lord, Lord Browne of Ladyton, that it is the view of the Government that investigations have been and can still be improved, and, separately, that the unique position of the Armed Forces on overseas operations should be reflected in a clearer framework for the prosecution of historical allegations.
I will proceed with some of the improvements to investigations, because the noble Lord, Lord Thomas of Gresford, specifically posed questions on this. I have indicated some of the work that the service police have been doing, and that ongoing work has continued to increase the capability of the service police and to ensure that they are better placed to respond to future operations. The professionalism agenda on which the police have embarked includes but is not limited to: a greater alignment with civilian police training national standards, including the introduction of a national policing apprenticeship for all new service police entrants, and College of Policing accreditation via the professionalising in policing course; attachments to Home Office police forces to ensure skills currency; representation on the National Police Chiefs’ Council across the spectrum of strategic activity and sub-level working groups; refinement of service police doctrine to incorporate lessons learned from Iraq and Afghanistan; and, importantly, investment in technology, such as the introduction of body-worn cameras and protective mobility to enhance deployability. By way of example, in 2003 service police reports were still saved on floppy disks—who of us can even remember these?—in the desert, which is an indication of how much technology has changed in the intervening period.
In addition to these professional improvements, a duty to ensure the independence of the service police from the Armed Forces in relation to investigations was enshrined in law in 2011 with a new section in the Armed Forces Act 2006. This, and other changes implemented in the Armed Forces Act 2011, introduced significant changes to the relationship between the chain of command and the service police in respect of investigative decision-making, as well as strengthening the investigative independence of the service police.
Under Part 5 of the Armed Forces Act 2006, if commanding officers become aware of serious allegations or allegations of offences committed in specific prescribed circumstances, they are under a duty to make the service police aware. There are also obligations on the service police to consult the Director of Service Prosecutions
where a decision is taken not to refer in certain types of investigations. Where the investigation reveals sufficient evidence of a serious offence, the service police are obliged to refer the case to the prosecutors. The provost marshals of the service police have a legal duty to ensure that all investigations are carried out free from improper interference. Finally, Her Majesty’s inspectors of constabulary inspect and report to the Secretary of State on the independence and effectiveness of investigations carried out by the service police.
I have dealt with this at some length, and I apologise if it has made for tedious listening, but I felt it was important to try to reassure the contributors to the debate, because many good points were made. I think that these points were made because of a genuine apprehension of weaknesses in the system. I have tried to illustrate that the system has probably improved out of all recognition, and that is before we even consider what Sir Richard Henriques may come up with in his review. But the commissioning of the review is a clear commitment to continue to seek improvement in these matters. I say to the noble and learned Lord, Lord Thomas of Cwmgiedd, that many improvements have been made.
As with Amendment 5, it is difficult to understand how a prosecutor could assess either the standard of the investigation or whether the service police have acted independently of the chain of command and then apply these assessments in practice. I have not been persuaded that a separate assessment of the standard and independence of the investigation is either appropriate or required. I would therefore respectfully ask the noble and learned Lord not to press his amendment.
Amendment 17 seeks to introduce timelines for the progress of investigations. This amendment was instigated by the noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Smith of Newnham. Again, I appreciate that the noble Lord and the noble Baroness are trying to be helpful, but this amendment, when dissected, raises issues which have to be examined. With the introduction of arbitrary and hard timelines for the progress of investigations, it seems to me that that does not take into account the wholly unique environment of an overseas operation and the challenges that this presents for investigations.
I stated previously that the Bill is not aimed at directly addressing service police investigations. These are subject to the review by Sir Richard Henriques. I am unclear why the noble Lord and the noble Baroness would wish to introduce such limitations on the investigative process. These are limitations which do not apply to service police investigations in the UK, nor to those conducted by civilian police forces. The challenges of conducting a robust and thorough investigation in a non-permissive and potentially kinetic environment are significant. As I said, they cannot be compared with the largely benign policing landscape of the UK, and nor should they have additional restrictions placed on them which are not faced by police investigations in the UK.
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Current and future operations will probably see UK forces deploy at a smaller scale, with deployments potentially more remote and limited in duration. This will add even greater complexity to the operating environment
for the service police, where access to real-life support and force protection is not a given, and access to any potential crime scene is likely to be fleeting. The complexity of investigations, frustrated by remote locations, harsh geography and a non-permissive environment, are just some of the challenges, not the least of which are access to witnesses and the fact that our own injured personnel may need medical treatment before making statements.
So this poses the question: would we really be comfortable closing down the investigative timeline in a way that may fail to exculpate our own forces, or provide much-needed closure to the families of deceased personnel? If that were to happen, would we really want to risk the ICC determining that we were unwilling or unable to properly investigate alleged offences on overseas operations, and then stepping in to do so?
I think I have dealt with the main issues. I submit that these measures would simply undermine the balance and well-established relationship between the service police and the prosecutor—a relationship, I might add, which also exists between the civil police and the Crown Prosecution Service, without the need for a member of the judiciary to be involved.
I have laid out an array of significant difficulties which this amendment raises and which I believe are not easily resolved. In these circumstances, I ask the noble Lord and the noble Baroness not to press their amendment.
This part of the Bill has dealt with some meaty issues, and the Government Whip is presenting me with a notice that says “Time is coming up”. However, in the circumstances, I will do something that does not come to me naturally and will ignore the Government Whip, because I really want to deal with the important issues raised in Amendment 28.
Amendment 28 is again tabled by the noble and learned Lord, Lord Falconer of Thoroton, and the noble and gallant Lord, Lord Boyce. Once again, I can see why the noble Lords have sought to try to support this part of the Bill and to be helpful. The amendment would give a new power to judge advocates to restrict police investigations. It would require a judge advocate to determine whether new—and existing—evidence brought forward is sufficient to allow the reinvestigation of service personnel for alleged offences of which they have previously been acquitted, or in circumstances where an earlier investigation had been ceased.
The supporters of the amendment feel that it could deal with repeated investigations. The noble Lord, Lord Anderson of Ipswich, described graphically the character of protracted investigations. However, again, I question whether this new clause is necessary. I also have concerns that this new clause would result in some unfortunate and unintended consequences.
Where a person has been acquitted of an offence relating to conduct on overseas operations, it is assumed that this envisages a situation where a person has been acquitted at a court martial. But it could also apply to a matter which was heard at a summary hearing in front of a commanding officer, following on from an investigation which did not involve the police. It also applies where a previous determination has been made that an investigation into an offence should cease.
The difficulty is that an investigation is a hard thing to define in law. It starts when inquiries begin and its purpose is to determine whether what little information you start with is credible and to gather more information and evidence in support of that. The process of finding out whether evidence is compelling is the investigation.
That is why I have difficulties with how, following a decision to cease an investigation, it can be determined that no further investigation—whether new or a continuation of the earlier investigation—can be commenced unless some form of compelling new evidence becomes available. The only way the police can determine whether this new evidence is compelling is to carry out an investigation—which, according to the terms of the amendment, they would not be allowed to do. We are getting into a circular issue here.
The new clause also proposes that no further investigation into the alleged conduct may be carried out unless an allocated judge advocate determines that the totality of the evidence against an accused—which presumably has had to come from some sort of investigation which the police are not allowed to conduct—is sufficiently strong that there is a real possibility that it would support a conviction.
This amendment, however well intended, introduces unforeseen consequences and certainly introduces restrictions and potential limitations on investigations. The intervention of a judge in the process of the investigation could interfere with the discourse between prosecutor and investigator. That is an important relationship, because it ensures that prosecutors are in a position to make prosecutorial decisions based on information which can be gleaned only from thorough investigations. It would be undesirable to fetter this discourse by introducing a third party—even someone as venerable as a judge advocate—into the existing process.
I have listened to eloquent and erudite arguments in support of this amendment, and I undertake to look again at the comments made in case I have misunderstood the arguments or have misapplied my own interpretation of what the amendment means. I shall look closely at the contributions which have been offered. In the meantime, I ask the noble and learned Lord to withdraw the amendment.