My Lords, first, I thank your Lordships for your contributions. As has been indicated, Amendment 1 seeks to 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.
I say as a general comment that my noble and learned friend Lord Mackay of Clashfern and the noble Baroness, Lady Chakrabarti, dwelled at length on the important matter of support for our Armed Forces, as covered by the Written Ministerial Statement tabled today. The noble Baroness raised specific issues which, with her indulgence, I propose to deal with when we debate Amendment 14 in the name of the noble Lord, Lord Dannatt.
I will explain why the Government are resisting Amendment 1. In doing so, I will cover much of what I said on this in Committee. First, we are not suggesting that service personnel or veterans have been subject to unfair trials. Our concerns have always been about the difficulties and adverse impacts on our personnel from pursuing allegations of historical criminal offences. Your Lordships are familiar with the character of such difficulties and adverse impacts—repeated inquiries and uncertainty hanging over the heads of our personnel for years as to whether any prosecution is to be brought.
Secondly, we are reassured that a person’s right to a fair trial—the nub of this amendment—is already protected in law by, among other safeguards, the Human Rights Act 1998 and Article 6 of the European Convention on Human Rights.
Thirdly, the amendment would remove the high threshold of the presumption against prosecution. We have specifically introduced this measure to provide the additional and overdue protection that we believe our service personnel and veterans so rightly deserve, while ensuring that, in exceptional circumstances, individuals who have done wrong can still be prosecuted for alleged offences.
Fourthly and lastly, Part 1 of the Bill 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).
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The intention behind the measures the Government have introduced in Part 1 is to ensure that we help to provide reassurance to our service personnel and veterans 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 while remaining compliant with our domestic and international legal obligations. I accept that, as the noble and learned Lord, Lord Hope, argued, there may be different assessments of what may be perceived as issues of principle. The Government believe that the combination of Clauses 2 and 3 provides 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. This amendment, which would remove the presumption, would weaken that protection and undermine that balance.
The noble and learned Lord, Lord Hope, argued that the presumption is vague and unspecific. With the greatest respect, I do not agree. The concept of a presumption is widely understood in law, and it falls to facts and prosecutorial judgment as to whether the presumption is rebutted, whereas this amendment is in time undefined and in other content vague. I would therefore argue that it is itself unspecific and is an unhelpful substitute for the more clearly articulated and understood legal concept of a presumption.
Amendment 6 seeks to introduce artificial timelines for the progress of investigations and a power for the Judge Advocate-General to intervene to direct investigations. I say to the noble Lord, Lord Thomas of Gresford, that nothing was “dreamt up” in relation to the Bill. There was a consultation on the proposed approach. As I said during the debate on this issue in Committee, I remain unpersuaded of the need to introduce the limitations on the investigative process proposed in the amendment. These limitations do not apply in civilian life to civilian police force investigations; nor, interestingly, do they apply to service police investigations in the UK, so it seems that in that regard alone, the amendment creates an anomaly. However, it would also seem somewhat premature to propose changes to the investigative process while Sir Richard Henriques’ review of investigative and prosecutorial processes in relation to overseas operations is still in progress. I agree with the noble and gallant Lord, Lord Boyce, that investigations are critical. Sir Richard Henriques may have useful suggestions to make, and I suggest that we await his reports.
I set out previously and in some detail the Government’s concerns about this amendment, and I do not intend to cover all that ground again. However, I will set out briefly the key reasons why the Government are resisting it. Overseas operations should not be compared with the largely benign policing landscape of the United Kingdom, and we should not underestimate the challenges of conducting complex, robust and thorough investigations in a non-permissive, potentially dynamic and dangerous environment. Where the service police have reason to believe that an offence may have been committed, they have a legal duty to investigate it. Artificial timelines and restrictions placed on them in respect of the conduct of investigations would clearly impinge on their statutory independence.
Closing down or restricting the investigative timeline risks failing to exculpate our own forces or failing to provide much-needed closure to the families of deceased
personnel. What if new evidence is claimed to have emerged which can be ascertained only by investigation? It would also bring a clearly increased risk of the International Criminal Court stepping in and determining, justifiably, that we are either unwilling or unable to properly investigate alleged offences on overseas operations.
There is already a well-established relationship between the prosecutor and the police, which ensures that a balance may be struck between further investigation and assessments of a realistic prospect of a conviction. The prosecutor can offer advice to the police but cannot direct them. That is a healthy separation of function. I submit that it would be inappropriate to fetter this discourse or to introduce a third party—the Judge Advocate-General—into the existing process. I reiterate that the same healthy relationship exists between the civil police and the Crown Prosecution Service without the need for a member of the judiciary to be involved.
The noble Baroness, Lady Smith, asked how the Bill addresses the issue of investigations. It creates a clear framework which everyone can understand around time limits for pursuing matters, whether criminal prosecutions or civil litigious matters, so that everyone involved in the process—whether the victim, the advising lawyers, the MoD, the accused or related witnesses—will now all understand that making progress with their criminal prosecution or their civil litigation claim will be made easier the sooner they set about doing that. As I have already observed—I remember saying this specifically at Second Reading and may possibly have repeated it in Committee—there is no doubt whatever that the best service you can provide to a victim or claimant is to ensure that the allegations are investigated as quickly as possible while minds are fresh and evidence is still available, and before the lapse of time may eradicate or taint what evidence there is.
For these reasons, the Government are not able to accept either amendment and in these circumstances, I ask the noble Lord to withdraw Amendment 1.