My Lords, the Justice Minister, Dominic Raab, speaking on “Today” this morning, said:
“I’m proud of our tradition of freedom in this country. We believe in liberty under the rule of law … We want to reinforce our typical British liberties like freedom of speech, the liberty that guards all the others … trial by jury, that’s a common-law right, very much part of the British tradition.”
In another part of the thicket, the Defence Secretary, Mr Ben Wallace, is seemingly against trial by jury and is acting contrary to the advice of his advisers and the judgment of his departmental Ministers, as Johnny Mercer, the Minister for Defence People and Veterans until April of this year, told us last week. Mr Wallace refuses to accept that, where charges are brought against a person subject to service law for serious cases of murder, manslaughter, rape or serious sexual offences allegedly committed in the United Kingdom by a person subject to service law, there should be a presumption that the accused should have the “common-law right” to trial by jury. Let us spell it out clearly again. If you join the services, you lose the common-law right to trial by jury—which is very much part of the British tradition, as Mr Raab would have it.
In the Commons last week, Sarah Atherton, the Member of Parliament for Wrexham, who has made her way up from the ranks of the Intelligence Corps to the green Benches in the other place and to the chair of the defence sub-committee charged with studying this issue, voted against her own Government and in so doing lost her ministerial appointment.
3.30 pm
Nevertheless, Leo Docherty, the Minister, said of her last night:
“I put on record our gratitude for that hugely important piece of work, which we will use as a lever to accelerate institutional change to ensure that women can thrive in military careers”.
It is rather ironic that a government Minister expresses his gratitude for Sarah Atherton’s work, which will ensure that women can thrive in military careers, while his Government reward her with the sack. What did that hugely important piece of work from Sarah Atherton reveal? Speaking on the debate on this amendment in the other place yesterday evening, she said:
“The House is aware that the Defence Committee’s inquiry into the experiences of women in the armed forces opened up a catalogue of harrowing evidence around sexual assault, rape, gang rape, poor standards of investigation, and the manipulation of power to deliberately disadvantage servicewomen in complaining or seeking justice.”—[Official Report, Commons, 13/12/21; cols. 824-827.]
She was joined in her opposition to and vote against the Government by three Conservative Members of Parliament with military experience: Tom Tugendhat, a lieutenant colonel who served in Iraq and Afghanistan; Johnny Mercer, who did three tours in Afghanistan as a commando officer attached to Special Forces; and Philip Hollobone, a territorial in the Paras for some eight years.
This amendment reflects the first recommendation of the review carried out by His Honour Shaun Lyons CBE. He achieved the rank of lieutenant commander in the Royal Navy at the age of 32. Later, he served as Chief Naval Judge Advocate for three years. Later, as a judge in the Crown Court, he was ticketed to try, with a jury of 12, all the serious cases that we are concerned with and which he said should be heard in the ordinary courts of this country.
On the Government’s side, Sir Richard Henriques in his report was content with concurrent jurisdiction. So be it. I have huge respect for Sir Richard and his career at the Bar and on the Bench, but I have not found a military element in it. I hope that all his recommendations and areas within his terms of reference will be accepted by the Government, but what were his terms of reference? They were:
“Policing, prosecutorial and other processes for addressing credible allegations emanating from overseas operations”—
nothing to do with what happens in this country.
He was required, in his first term of reference, to
“Build upon the previous Service Justice System Review”
by His Honour Shaun Lyons
“the recommendations of which MOD”
was then considering,
“and not undertake another broad review of the Service Justice System or investigate specific cases.”
His second term of reference was to
“Focus on setting the context for the future so that we can be sure that, for those complex and serious allegations of wrongdoing—against any of our forces—which occur in theatre on overseas operations, we have the most up to date and futureproof framework, skills and processes in place and can make improvements where necessary”.
His view on the jurisdiction for offences committed in the United Kingdom, is, as we lawyers say respectfully, obiter.
The minor alterations to the amendment before the House today reflect the trivial criticism advanced last time that I had omitted to refer to the other criminal jurisdictions in the UK. That is a pretty desperate argument, dreamed up, no doubt, by some intern in the Ministry of Defence.
In my previous remarks in support of my amendment last time, I dealt extensively with the problems of servicewomen reporting sexual offences up the chain of command, their treatment and their difficulties in giving evidence before a court martial panel of officers. Your Lordships will be pleased to hear that I shall not repeat it, but the evidence of the experienced social worker Paula Edwards, of the charity Forward Assist, given to the Atherton committee on 4 March, contains the essence. She was asked by the committee what support the servicewomen who came for help to her organisation received from the military. Her reply was, “None.” She said:
“They don’t get sexual assault screening. When they do make a complaint, it is often to a perpetrator or to somebody who victim-blames and makes that woman feel like she is to blame, like she was asking for it, which, of course, makes that woman have significant mental health problems, and it goes round in circles. A lot of the women do not get any support. The investigation isn’t fair or just and it has poor outcomes for women in the Military.”
That is the view of someone very experienced in dealing with the victims of sexual offences.
Last night, the current Minister of Defence People and Veterans, Leo Docherty, gave the reason for resisting this amendment:
“the Government believe very strongly that the SJS needs to retain the full complement of capability because our armed forces are expeditionary by design and our justice system also needs to be expeditionary”.—[Official Report, Commons, 13/12/2021; col. 815.]
The picture immediately springs to mind of a red-coated regiment marching through the streets packed with cheering, waving crowds to the sound of the regimental band, followed by a ragtag of lawyers, before embarking to go abroad on some colonial enterprise. We are not dealing with overseas expeditionary forces, but with serious criminal offences that occur on the soil of Great Britain and Northern Ireland.
In speaking further on this amendment, Mr Docherty’s big concession, repeated by the Minister today, was to promise improved statistics to cover all the offences listed in 2023. He said:
“We believe that this will increase the transparency of, and the confidence in, the service justice system, and we welcome this scrutiny … and it is right that data is available to hold the Government to account”.—[Official Report, Commons 13/12/2021; col. 814.]
My specific question to the Minister is whether that promised transparency will extend to publishing the precise terms of the protocol that is to be agreed between the Director of Public Prosecutions and the Director of Service Prosecutions on the question of venue, as other prosecutorial protocols are routinely published. I beg to move.