Armed Forces Bill

Lord Thomas of Cwmgiedd Excerpts

Report stage
Tuesday 23rd November 2021 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, I am most grateful to the noble and learned Lord, Lord Morris of Aberavon, for his support, and I congratulate him on the attempts that he has made over a long time to civilianise military law. I am pleased that he mentioned Lord Elwyn-Jones, who admitted me to the rank of Queen’s Counsel in the Moses Room rather a long time ago.

The issue in Amendment 2 is: should members of the Armed Forces accused of murder, manslaughter, rape or other sexual offences alleged to have been committed within the United Kingdom be tried by court martial or in ordinary courts? The Mutiny Act 1689, in the reigns of William and Mary, laid down the principle that there should be annual renewals of the Armed Forces Act. The recital to it said:

“No man may be forejudged of life or limb, or subjected … to any kind of punishment … by martial law, or in any other manner than by the judgment of his peers and according to the known and established laws of this realm.”


That is the sentiment that the noble and learned Lord, Lord Morris of Aberavon, has just enunciated, and it is a principle derived from the Magna Carta.

But this recital in the Act contained an exception to that stirring principle. In respect of

“every person being mustered and in pay as an officer or soldier in their Majesty’s service, who excited, caused or joined in any mutiny or sedition in the Army, or deserted their Majesty’s service”,

the punishment was death.

The other means of disciplining service personnel was under the Articles of War, issued under the King’s sign-manual, but only for the purpose of operations abroad, particularly in the colonies, not in the United Kingdom.

The Mutiny Act applied throughout Great Britain and Ireland, so that even in peacetime a soldier mutinying or deserting would be tried and punished under martial law, not civil law, and without the protections offered through civil law procedures.

The great jurist Sir William Blackstone, writing in 1765, was incensed that soldiers should be dealt with by court martial in peacetime and regretted that

“a set of men, whose bravery has so often preserved the liberties of their country, should be reduced to a state of servitude in the midst of a nation of freemen!”

When, in 2006, therefore, the Labour Government introduced into their Armed Forces Act a provision which permitted the trial of service personnel by court martial for serious offences committed in this country—a course which I strongly opposed at the time—they were going against centuries of history. The serviceman was now open to court martial for any offence, including murder, manslaughter and rape, even when committed in the United Kingdom. Importantly, he had lost the right to be tried by an ordinary jury of 12 of his peers and was subject to the verdict and punishment of up to seven officers, arrived at by a simple majority.

That is enough history; we must look at the position now, in 2021. We have before us the strong recommendation of His Honour Judge Lyons in his review. As it happens, his first recommendation is that the court martial jurisdiction should no longer include murder, manslaughter and rape when those offences are committed in the United Kingdom, except with the consent of the Attorney-General. The Defence Sub-committee under Sarah Atherton, Member of Parliament for Wrexham, published its report in July, entitled Protecting Those who Protect Us. That report calls urgently for the implementation of His Honour Judge Lyons’s recommendation.

It is true that, in his recent report, Sir Richard Henriques accepted concurrent jurisdiction, as it is called, but the reason he gives is that there may be cases which occur both abroad and in this country, and consequently a single trial would be preferable. That reason would not have any force in respect of murder cases, where there is universal jurisdiction.

I do not believe that a murder case, for a murder committed in the United Kingdom, has been dealt with by way of court martial since 2006. However, I have been able to trace two cases where charges of manslaughter by negligence occurring in this country were tried in that way, both relating to the Castlemartin range in west Wales. In the most recent case, in 2012, a soldier was killed during a live firing exercise. That case was about the planning, organisation and running of that range and required reconstruction of the scene, with accurate grid references and bearings to establish to the criminal standard the origin of the fatal round. Three were convicted and the officer was sentenced to 18 months’ imprisonment, with the others receiving service punishments. It follows, and I do concede, that there may be cases involving complex military issues where a court martial may be appropriate, but these are very rare—two cases in some 14 years.

In reply to the Minister’s comments in Committee, I said that she had misinterpreted this amendment. I have used the word “normally”, which means what it says: that offences committed in the UK would be tried in the ordinary Crown Courts, or in their equivalents in Scotland and Northern Ireland. That would be part of the protocol of the DSP and the DPP. It would be in only exceptional cases of the nature to which I have referred that the Attorney-General would need to be approached. I am not suggesting that he should be involved in the decision-making process of venue ab initio. Incidentally, there is no bar to the Attorney-General making a decision on venue, just as he or she may do in deciding on the commencement of proceedings. The Minister suggested the contrary in her reply in Committee.

Much more common are cases of rape and sexual offences occurring in this country being tried by court martial. It is obvious from the report of Sarah Atherton’s Defence Sub-Committee that complainants, their families and the public simply do not have confidence in courts martial. We can argue about the figures, but if the level of conviction is so low then this perception will have an effect on recruitment and, more importantly, retention. There are many victims within the armed services who will wish to leave for a civilian life if their complaints are not upheld.

The noble Baroness also repeated the justification advanced in 2006 that public confidence can be maintained in the whole service justice system

“only if the service justice system not only has but can be shown to have the capability to deal with all offending fairly, efficiently and in a manner which respects and upholds the needs of victims.”—[Official Report, 27/10/21; col. GC 166.]

That was the justification in 2006 to give a boost to the status of the partly reformed system of courts martial.

I said at Second Reading that I generally welcome the reforms in this Bill. They nearly conclude the long journey since the Findlay human rights case in 1995 towards founding the service justice system on justice rather than, as it has been historically, on discipline. We have finally buried the Mutiny Act, under which General Braddock in the Seven Years’ War could issue the order of the day:

“Any Soldier who shall desert tho’ he return again will be hanged without mercy.”


This amendment is designed to complete the journey towards justice.

[Lord Thomas of Cwmgiedd (CB)]

There is one brief reason that I would add to what has been so eloquently said by the noble and learned Lord, Lord Morris, and the noble Lord, Lord Thomas of Gresford. We have always tried, and marked the seriousness of, crimes set out in the amendment by trial by jury. Magna Carta conferred on defendants the right to trial by jury. Today, we take account of the interests of the victim of such crimes and they have confidence only in trial by jury, particularly as so many of these cases turn on credibility. On that, the judgment of ordinary men and women, drawn from a jury, is the only way to achieve justice. For those three reasons, we should not deprive people of trial by jury in these cases.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I will speak very briefly, having attached my name to Amendment 2 in the name of the noble Lord, Lord Thomas of Gresford. I did that because, as we came to the deadline, I noticed that there was a space, and I really felt that, given the level of support that the issue covered by this amendment achieved at Second Reading, it deserved the broadest cross-party and non-party support possible.

I will also reflect on what I said in Committee on this amendment. Much of our leadership on this has come from Members from legal backgrounds, who focused on the rights of the defendant. I understand that, but I also note that I am the only female Peer who has attached my name to the amendment. There is very much a gender aspect to this. Women currently make up 10% of our full-time military—about 15,000 in number. They are still a significant minority right across the forces.

As the noble Lord, Lord Thomas of Gresford, just alluded to, we have a military culture stretching back many centuries that was, for most of that time, entirely male dominated. Offences such as domestic violence, child abuse, rape and sexual assault are disproportionately committed against women. Last night in this very Chamber on the policing Bill we were discussing how difficult it is to get our civilian justice arrangements to cater adequately for these offences. How much more difficult is it in the military context, with the culture we just heard outlined?

I commend the amendment to the House and, looking back to the Second Reading debate, note the breadth of support it achieved.

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Moved by

[Lord Thomas of Cwmgiedd]

23: Clause 12, page 24, line 20, at end insert—
“(3A) After section 115A insert—“Further provision in relation to independence of investigations115B Further provision in relation to independence of investigations(1) The tri-service serious crime unit must contain a victim and witness care unit, funding for which is to be made available by the Secretary of State.(2) The Deputy Provost Marshal for serious crime must be a civilian appointment.(3) The tri-service serious crime unit must carry out its investigations in a manner that is operationally independent of the military chain of command.(4) The Provost Marshal for serious crime must produce a report annually to the Minister chairing the Service Justice Board, who must arrange for the report to be laid before Parliament.(5) Before the tri-service serious crime unit is established, a Strategic Policing Board, consisting of a non-executive director (who is also a member of the Service Justice Executive Group), a retired chief constable, a recently retired senior military officer, and a retired judge, must be established to provide assurance and governance of the Provost Marshal for serious crime and the Defence Serious Crime Unit.(6) The tri-service serious crime unit must be established by 1 April 2022.(7) By 1 July 2022, the Provost Marshal for serious crime, Director of Service Prosecutions and Judge Advocate General must agree protocols on fatalities and ill-treatment cases.”” Member’s explanatory statement
The amendment is intended to strengthen the independence of the tri-service serious crime unit in accordance with the recommendations of the Henriques Report.

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[Lord Thomas of Cwmgiedd (CB)]

My Lords, I rise to move Amendment 23 and support Amendment 27. The issue addressed by Amendment 23 is quite clear: the adequacy of the statutory provisions to protect the independence of the Armed Forces police and, in particular, this new unit.

I do not think there is any difference about the constitutional principle. It was set out in one of the cases dealing with the Iraq war, Ali Zaki Mousa (No. 2), where it was said that the Armed Forces police

“must be able to make their decisions entirely independently of the Secretary of State for Defence, any civil servant in that Ministry and, even more importantly, of anyone in the hierarchy of the armed forces.”

That was the principle applied by Sir Richard Henriques in his report, which set out the practical way in which that principle could be given effect and applied.

This amendment seeks in particular to fill in the essential areas of protection needed to ensure independence. They are all set out in the proposed new subsections of the amendment. We went into these in Committee, but I will highlight three of them.

First, the deputy head must be a civilian. It is important to bear in mind that, in the cases that went into the independence of the investigations in Iraq—the Ali Zaki Mousa cases—IHAT had a civilian head, and he brought a different perspective. This is a very important point made by Sir Richard.

Secondly, there can be no watering down of the principle of the operational independence of the military command. I will come to the provision of the Bill which does water it down.

Thirdly, there is the establishment of the strategic police board. When you occupy a position where you can be put under pressure, it is very important to have the protection of someone. Within the Armed Forces, the Director of Service Prosecutions has the Attorney-General. The Judge Advocate-General has the Lord Chief Justice. There can be no reason for not putting into statute a very clear provision that the strategic policing board can support the head of the unit if he or she comes under pressure, which he or she no doubt will.

Why are these statutory provisions necessary? I am grateful to the Minister for her very careful letter, in which she sought to deal with the adequacy of what is in the Bill, which is, essentially, the appointment of the provost marshal of the tri-service unit, the method of his appointment and, if I may say so, a somewhat watered-down expression of the principle of independence, and in particular operational independence. There are three reasons why I urge your Lordships to consider this amendment as important in strengthening the position.

First, as the Minister, with the assistance of her lawyers, has set out, there are a number of cases, two of them in particular involving Ali Zaki Mousa, that looked at the independence of the way in which the investigation was made of the conduct of the Armed Forces police. But it is critical to remember that in those cases what was put under the microscope was the particular structure that had been carefully set up. There is no case that says that the current position is adequate. Indeed, that must be the position, otherwise would why would Sir Richard have gone to the trouble to which he went in making these recommendations? What is set out in the report, which I have already mentioned, is what is required.

The second reason why statutory provision is needed is to protect the Armed Forces. Indeed, my principal reason for moving the amendment is to try to protect the Armed Forces from the risks of it being able to be argued that the position of the Armed Forces police is not independent. In the cases that related to IHAT, on which the Ministry of Defence relies, there was a very careful examination. For example, in the Ali Zaki Mousa case there were five days of hearings spread over a considerable period of time, a vast quantity of documents, statements from very senior people across the Armed Forces, and some cross-examination. It is obviously undesirable to have a repetition of that process and it is therefore essential that the position is made clear in statute.

Noble Lords might say that this is a one-off circumstance. I referred in Committee to something that happened during the Malaysia emergency in 1948 that came up for investigation in the courts many years later in 2011. One of the central issues there was that the investigation had not been independent. Again, issues arose during the course of the Blackman case as to the independence of the investigation. Much more recently, there have been reports in the Sunday Times, of which we are all well aware, that again cast doubt on the independence of the investigation. All I feel it necessary to say is that all these attacks on the independence of an investigation could and should be avoided by putting the matter beyond doubt in legislation. The current legislation simply does not go far enough.

The third reason for saying that the current legislation is not correct is that it does not reflect the proper constitutional position, and these matters ought to be put on a statutory basis. The duty set out in Clause 12(3), which is to try to ensure operational independence, is not enough. There must be operational independence, and that should be a statutory principle.

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I understand the interest in these matters, and I do not doubt for one moment the sincerity of the intentions of the noble Lord, Lord Robertson, in relation to them. He is interested, he wants progress to be made and he wants to make sure that the MoD’s feet are held to the fire. I totally understand that. I am happy to repeat the undertaking that I gave in Grand Committee to keep the House informed of progress on these matters: I shall undertake to do that. But I hope that, in these circumstances, the noble Lord will withdraw his amendment.

[Lord Thomas of Cwmgiedd (CB)]

I am grateful to all noble Lords and noble and learned Lords who have spoken in this part of the debate. I will first say something briefly about Amendment 27. It is critical to a justice system that you have a properly defended and functioning defence service, and therefore I very much hope that, in the event that this amendment is not pursued, the undertaking given to keep the House closely informed of developments is greatly appreciated.

I turn to the main amendment, Amendment 23. I accept that the police in the armed services are capable of being independent, and indeed in most cases they are—but, as has been shown by recent cases, that has not always been the case, to the enormous damage of the Armed Forces. Therefore, with this amendment, I seek to put the principle and the protections on a clear basis to save future damage.

The Minister asked noble Lords to look at the difference between what is in the Bill and what is in the amendment. On the duties of the provost marshal, the Bill says that he owes

“to the Defence Council, to seek to ensure that all investigations carried out by the tri-service serious crime unit are free from improper interference.”

There is nothing there at all that reflects the proper constitutional position that they should be operationally independent of the military chain of command. That is what is set out in the amendment. I simply do not understand why this fundamental principle of the way in which the police operate in the Army, Navy and Air Force should have second best. It is in their own interests to ensure independence.

Then there is the quibble that you cannot, for some reason, fit a civilian into the structure. I do not begin to understand that. In the cases I did which involved this area, one of the principal reasons why the courts concluded that the Iraq Historic Allegations Team was independent was that it had a civilian head. I therefore do not understand what the objection is, not only for the reasons given by the noble Lord, Lord Thomas of Gresford, namely that civilians bring experience, but because they also bring an outside perspective.

The real issue in this case is the need for statutory protection. Perhaps the Ministry of Defence lawyers take the view that all that is required are the three provisions in the Bill. I accept that the Government want to proceed with the implementation, but our difference of opinion relates to whether Parliament should do its duty and specify this in the legislation and put a proper duty in relation to operational independence into the Bill, with the necessary vital safeguards. Without those safeguards, a duty will not work—or do you take the very narrow view that it is not required?

For the good of Her Majesty’s Armed Forces, we ought to stop speculation about investigations not being independent. We must make sure they are seen to be independent by Parliament itself providing on this occasion, as part of the five-year review, that there are sufficient safeguards for independence. Therefore, for the good of Armed Forces and the service police, I would like to take the opinion of the House on this issue.