Armed Forces Bill
Wednesday 2nd September 2026
(1 day, 14 hours ago)
Lords ChamberArmed Forces Bill 2024-26 View all Armed Forces Bill 2024-26 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 36–I Marshalled list for Committee - (28 Aug 2026)
Baroness Brinton
“Part 1AService Stalking Protection Notices1A In Part 3 of AFA 2006 (power of arrest, search and entry), after Chapter 1A (inserted by paragraph 1) insert—“Chapter 1BService Stalking Protection Notices74E Power to give a service stalking protection notice(1) An authorised service police officer may give a service stalking protection notice to a person falling within subsection (2) (“P”) if the officer has reasonable grounds for believing that—(a) P has carried out acts associated with stalking against another person, and(b) it is necessary to give the notice to protect that other person from stalking, or the risk of stalking, carried out by P.(2) A person is within this subsection if the person is aged 18 or over and is—(a) subject to service law, or(b) a civilian subject to service discipline.(3) A “service stalking protection notice” is a notice prohibiting P from carrying out acts associated with stalking against the person for whose protection the notice is given.(4) A service stalking protection notice may provide that P—(a) may not contact the person for whose protection the notice is given;(b) may not come within a distance specified in the notice of any premises in which that person lives or any other specified premises.(5) If P lives in premises in which the person for whose protection the notice is given also lives, the notice may also contain provision—(a) prohibiting P from evicting or excluding that person from the premises;(b) prohibiting P from entering the premises;(c) requiring P to leave the premises.(6) It does not matter where the acts associated with stalking referred to in subsection (1)(a) took place.(7) In this Chapter—“acts” includes omissions;“authorised”, in relation to a service police officer, means of or above the rank of naval lieutenant, military or marine captain or flight lieutenant;“service police officer” means a member of a service police force.74F Matters to be considered before giving a notice(1) Before giving a service stalking protection notice to a person (“P”), an authorised service police officer must, among other things, consider the following—(a) the welfare of any person under the age of 18 whose interests the officer considers relevant to the giving of the notice; (b) the opinion of the person for whose protection the notice would be given as to the giving of the notice;(c) any representations made by P about the giving of the notice;(d) in a case where the notice includes provision relating to premises lived in by the person for whose protection the notice would be given, the opinion of any relevant occupant as to the giving of the notice.(2) In subsection (1)(d) “relevant occupant” means a person other than P or the person for whose protection the notice would be given—(a) who lives in the premises, and(b) who is personally connected to the person for whose protection the notice would be given or, if P also lives in the premises, P.(3) The authorised service police officer must take reasonable steps to discover the opinions mentioned in subsection (1)(b) and (d).(4) It is not necessary for the person for whose protection a service stalking protection notice is given to consent to the giving of the notice.74G Further requirements in relation to notices(1) A service stalking protection notice must be in writing.(2) A service stalking protection notice given to a person must state—(a) the grounds on which it has been given,(b) that if the person is reasonably suspected of being in breach of the notice, they may be arrested in accordance with section 67(2), (3), (4) or (5) by a person subject to service law,(c) that an application for a service stalking protection order under section 236M will be heard within 48 hours of the time of giving the notice and that a notice of the hearing will be given to the person,(d) that the notice continues in effect until that application has been determined or withdrawn, and(e) the provision that may be included in a service stalking protection order.(3) The notice must be served on the person personally by a service police officer.(4) On serving the notice on the person, the service police officer must ask the person for an address at which the person may be given the notice of the hearing of the application for the service stalking protection order.(5) After serving the notice on the person, the service police officer must make reasonable efforts to inform the person’s commanding officer of the giving of the notice.74H Breach of notice(1) A person who is reasonably suspected of being in breach of a service stalking protection notice may be arrested in accordance with section 67(2), (3), (4) or (5) by a person subject to service law.(2) Section 67(6) applies in relation to the power of arrest conferred by subsection (1) as it applies in relation to the power of arrest conferred by section 67.(3) A person arrested by virtue of subsection (1) must be kept in service custody and brought before the Court Martial or the Service Civilian Court—(a) before the end of the period of 24 hours beginning with the time of the arrest, or (b) if earlier, at the hearing of the application for a service stalking protection order against the person.(4) In calculating when the period of 24 hours mentioned in subsection (3)(a) ends, the following days are to be disregarded—(a) any Sunday,(b) Christmas Day,(c) Good Friday, and(d) any day which is a bank holiday in England and Wales under the Banking and Financial Dealings Act 1971.(5) If the person is brought before the court as mentioned in subsection (3)(a), the court may—(a) give orders for the further detention of the person in service custody, or(b) direct that the person is released from service custody.(6) The court may, when directing a person’s release from service custody under subsection (5)(b), require the person to comply, before release or later, with any requirements that appear to the court to be necessary to secure that the person does not interfere with witnesses or otherwise obstruct the course of justice.(7) Where a person is given a service stalking protection notice under section 74E, a Provost Marshal must apply for a service stalking protection order in respect of the person.(8) The application must be heard by the court not later than 48 hours after the notice was given to the person, and subsections (3) to (7) of section 236D apply to the application as they apply to an application for a service domestic abuse protection order.””Member’s explanatory statement
This amendment creates a Service Stalking Protection Notice (SSPN) by mirroring the existing framework for Service Domestic Abuse Protection Notices, giving service police an equivalent power to provide immediate protection pending the determination or withdrawal of an application for a Service Stalking Protection Order.
Baroness Brinton (LD)
My Lords, I have all three amendments in this group. They aim to improve the arrangements for cases of service stalking. Amendment 21 wants to create a service stalking protection notice—SSPN—by mirroring the existing framework for the service domestic abuse protection notices, giving service police an equivalent power to provide immediate protection orders pending the determination or withdrawal of an application for a service stalking protection order. I am very grateful to the Suzy Lamplugh Trust and Aurora New Dawn for their briefings and for correspondence in recent weeks.
Before going into the detail of these three amendments, I want to thank the Minister for his letter of a few days ago, following Second Reading. He says very clearly in that letter that the changes I want in order to strengthen the protections against stalking are not necessary because
“we fully recognise the importance of ensuring that the Service Police and other relevant personnel have the skills and knowledge necessary to identify stalking behaviour, assess risk and make effective use of the new protective measures”.
I am remembering discussions with Ministers in 2012, 2016, 2019 and 2022, when we tried to do the same for non-service stalking arrangements. Every single time we have not put the detail in the Bill it has gone wrong further down the process and has had to come back to Parliament to be corrected because, unfortunately, stalking, which is itself a very unpleasant crime, can quite often lead to murder. Therefore, some of these things that I am proposing are very much to protect the victim.
Baroness Royall of Blaisdon (Lab)
My Lords, I regret that I did not sign the amendments tabled by the noble Baroness, Lady Brinton. They have my full support. We have worked together for many years on the issue of stalking, together with the noble Lord who sits in the Chair. I believe that many of the areas in which we worked on stalking in civilian life are pertinent to this Bill because they translate into what is happening in the Armed Forces. Amendment 21 is particularly important. I look forward to hearing the response from my noble friend the Minister, but if the noble Baroness does not think that the response is adequate and wishes to take this forward again on Report, I will certainly be there to support her.
Baroness Smith of Newnham (LD)
My Lords, I simply endorse everything my noble friend Lady Brinton has said. I do not think there is anything I need to add.
Baroness Goldie (Con)
My Lords, the noble Baroness, Lady Brinton, has offered us a very thoughtful exposition of why further action is required to strengthen the service justice system, and the noble Baroness, Lady Royall, made an important contribution in support of that. I wholeheartedly concur with the rationale behind the amendments from the noble Baroness, Lady Brinton.
Last year, I brought this issue to the attention of the House during our debates on the then Armed Forces Commissioner Bill, as I am sure noble Lords will recall. During the progress of that Bill, I was particularly keen to give the new commissioner the power to investigate whistleblowing concerns, particularly relating to sexual misconduct. Although my specific proposal did not materialise, we did get a government commitment to a whistleblowing and defence review, for which I am very grateful to both the department and the Minister personally. That really important piece of work has now been concluded—I must thank the Minister for sharing it with me prior to the finalisation of the draft report, which greatly encouraged me. I certainly look forward to its publication in due course. The Minister might be able to share with the Chamber whether we have a date for publication of that report. I say at the outset that the noble Baroness and I are on the same page in ensuring that cases such as that of Jaysley Beck never happen again.
The Armed Forces Continuous Attitude Survey found that 13% of women in our forces had been subject to sexual harassment in the previous 12 months alone. That is profoundly disappointing and deeply discouraging and worrying. The MoD’s own sexualised behaviours survey published only recently found that a third of servicewomen reported unwanted physical touching and one in 10 reported sexual assault. That is not the environment in which we want our servicewomen to be serving. Against that backdrop, I understand entirely why the noble Baroness has brought forward this framework, and I have considerable sympathy with what she is trying to achieve. A service stalking protection notice, mirroring the existing domestic abuse framework, has a certain logic to it, and the training and continuity amendments address real and identifiable gaps.
That said, I pose the question of whether a new tier of civil order is in itself the most effective mechanism available to us. My concern is that protection notices and protection orders, however carefully drafted, are only as good as the mechanisms available to monitor and enforce. There is a risk that we spend time creating new civil orders while the more fundamental question of whether service police have the resources, the trained investigators and the forensic support to catch these individuals, secure convictions and, where appropriate, see them imprisoned goes unanswered. Let me make clear to the noble Baroness, Lady Brinton, that I do not say this to dismiss the amendment; she raises a very important issue. I say it because the Minister owes the House a clear account of where the Government’s priorities lie. In conclusion, can the Minister outline what the Government are doing against that backdrop of evidence from surveys to better protect women in the Armed Forces from stalking and similar abuse? I look forward to his substantive response to very important amendments.
The Minister of State, Ministry of Defence (Lord Coaker) (Lab)
First, I thank the noble Baroness, Lady Brinton, for bringing forward these crucial and really important amendments, and my noble friend Lady Royall for what she said in support of them.
On the point about the whistleblower review raised by the noble Baroness, Lady Goldie—I know the noble Baroness, Lady Smith, and her noble friend Lady Kramer have also been involved in looking at that—we hope to publish it, and the expectation is that we will do that in the next two weeks. I hope that is of some reassurance. The idea is to have that published with a Written Ministerial Statement. As soon as I have absolute certainty about that, I will let both noble Baronesses know. In answer to what specifically the Government are doing to try to tackle some of the culture with respect to women and girls and protection in those circumstances, the whistleblower review is one part of that. The contributions that both noble Baronesses made have substantially improved what the Government were proposing, so I am grateful for that.
I will just make a couple of general remarks before coming to the specifics of the amendments tabled by the noble Baroness. The Government are clear that stalking is a serious and often escalating crime that can have a devastating impact on victims and their families, and we are committed to ensuring that victims are protected, perpetrators are held to account and agencies have the powers that they need to intervene at the earliest opportunity. As has been said, stalking behaviour can cause significant physical and psychological harm and must never be dismissed as trivial or harmless. The Government’s approach is therefore focused on prevention, protection and prosecution, supported by robust safeguarding arrangements and effective multi-agency working.
Stalking protection orders provide an important tool to protect victims before harm escalates, enabling restrictions and positive requirements to be imposed where necessary to manage risk and prevent further offending. The reason I said in my letter to the noble Baroness that Amendment 21 was not necessary is not that interim stalking orders are not important. I draw the attention of the Committee to new Section 236Q, where there are interim service stalking protection orders on the face of the Bill. Without being pedantic, I know they are not interim stalking protection notices, and I suspect that may be the point that she wants to raise, but the Government recognise the need for interim measures to have the protection that is needed while a full application is still pending. I am informed by people who understand these processes better than I do that being an order rather than a notice means that there are more significant protection measures available to deal with any possible breach of an interim order. I just raise that point with the noble Baroness, and no doubt we can discuss that either further in Committee or another time.
Baroness Brinton (LD)
My Lords, I am very grateful to the Minister and the other speakers, in particular the noble Baroness, Lady Royall, with whom I have worked for many years on this; I am very grateful for her support. I am also grateful that the noble Baroness, Lady Goldie, has shown some interest in this. I think the point raised about whistleblowing and making sure it is part of this package as well becomes vital. As we discussed yesterday on the Public Office (Accountability) Bill, it is absolutely key to changing the culture, which is what one wants in this sort of situation. I am also very grateful to the Minister for the detail he has gone into.
I should have made it clearer that the service stalking protection notices that my amendment seeks to create are different from the interim stalking orders, not least because they would be a tool that can be used by a police officer without having to go to a court. It is like the first step on the ladder. Going to court takes time and you have to assemble a case for it to be heard, whether by a magistrate or in another court. Therefore, it is a much more serious document, with more serious implications.
The point about these notices is that they are a tool to make the stalker aware very quickly that there are now certain rules they must follow and that things will escalate quickly if they disobey them. I am looking at the noble Baroness, Lady Royall, because I cannot remember what year they were added, but they were added because there was this lacuna between identifying a stalker and being able to get some protection for the victim.
On the other points, the Minister very kindly offered in his letter to meet me and anyone else interested, including the charities I have been working with. I think the best thing to do would be to have them with us at that meeting, because they have some very specific concerns about detail that I could not possibly go into in the Chamber at this particular time of night.
Baroness Brinton (LD)
I thank the Minister. I am very grateful to him for that. On that basis, depending on the meeting, I may bring an amendment back on Report, but for now I withdraw Amendment 21.
Baroness Brinton
“Domestic abuse and summary hearings for assault and assault occasioning actual bodily harm(1) A commanding officer may not hear summarily a charge of assault or occasioning actual bodily harm where the alleged conduct amounts to, or is alleged to amount to, domestic abuse.(2) In any case to which subsection (1) applies, the allegation must be referred to a service police force for investigation or the Director of Service Prosecutions for consideration of prosecution before the Court Martial or such other court as has jurisdiction.(3) In this section, “domestic abuse” has the same meaning as in the Domestic Abuse Act 2021.”Member’s explanatory statement
This amendment seeks to remove the power of a commanding officer to hear an allegation of ABH when there is a domestic abuse element to the allegation.
Baroness Brinton (LD)
My Lords, I have three amendments in this group and, while they are not related to stalking, the principles behind tabling them are not dissimilar. They specify more detail than I think the Minister is comfortable with, but each states very clearly where the boundaries are on a number of issues.
Amendment 24 seeks to remove the power of a commanding officer to hear an allegation of assault or assault occasioning actual bodily harm when there is a domestic abuse element in the allegation. The amendment says that, in those circumstances, the case must be referred to a service police force for investigation or to the Director of Service Prosecutions for consideration of prosecution before that court martial or other such court has jurisdiction.
This whole area around the role of the commanding officer, who will have a very different knowledge of individuals, not just those who report to them but also perhaps their families who are involved in this case, is a sensitive one. We have to compare this with the position of the service police or prosecutors, who will not have that personal knowledge of all the individuals. It is obvious that any more serious crime that was committed would not be permitted to be heard by the commanding officer—and yet, a crime involving assault or ABH and domestic abuse can at present be heard summarily by the commanding officer.
The reason for concern is that the domestic abuse guidance for those involved in investigating DA and associated crimes are that all those involved should have specialist training to understand how domestic abuse, assault and ABH need to be identified when often victims say that those in authority in the past have diminished the seriousness because it was domestic or the perpetrator has managed to hide it very well. But assault and ABH are not minor crimes: committed on a domestic partner, they are very serious.
The role of the commanding officer in hearing cases at this level may be understandable if it is a fight between two servicemen, so I understand why there is some provision there, although there are many who now question whether this should be the responsibility of the commanding officer at all. But my amendment specifically draws out assault and ABH in a domestic abuse setting and says that that must be dealt with by the service criminal justice specialists.
There is a general principle here. The Centre for Military Justice and many individual victims and campaigners find it unreasonable that there is still a role for the commanding officer in these cases at all.
I think it was the Minister who referred to Gunner Jaysley Beck: an appalling case. She was sexually assaulted by a warrant officer more than twice her age and then sexually harassed for months by her line manager, who was almost 10 years her senior. The inquest found that the Army’s failure to deal with her report of sexual assault appropriately, and the pressure of relentless sexual harassment she had endured, contributed to her death by suicide on 15 December 2021.
Before and after the inquest, the family, with support from the Centre for Military Justice, campaigned for greater independence in the handling of serious service complaints for service personnel who have suffered serious sexual harassment, discrimination and bullying in the military. On 18 March 2025, the Government announced that they were taking responsibility for the handling of serious cases such as these away from any single service itself. That is good. However, I am afraid that some anomalies remain, such as the issues in my amendment relating to ABH and domestic abuse.
Amendment 25 ensures that the services victims’ code must always apply to victims of sexual offences. It also ensures that service personnel whose cases are being taken forward in the criminal justice system will receive an equivalent right to service-provided victim services as those whose cases are taken forward in the services justice system. I laid this amendment to prevent service personnel and their victims falling through the cracks between the criminal justice system’s victims’ code, the services victims’ code and all the other things that might pertain to their case.
Amendment 26 relates to
“Production orders: notice to the subject of the material”.
It sets out in some detail how an application is made, then handed or served to the individual. It also sets out that the judge advocate must be satisfied that all the requirements have been complied with, with some exceptions noted where it would involve risk of harm or exceptional other circumstances. This is not dissimilar to the requirements for the civil police arrangements under powers of stop, search, seizure and retention. I believe that this amendment would both strengthen the process of a production order and prevent any abuse of such an order.
All three amendments are highly specific and may seem rather niche, but they aim to do one thing: to clarify and improve the service justice system for all those who come into contact with it or who administer it. I beg to move.
Viscount Stansgate (Lab)
My Lords, I have been listening very carefully to the noble Baroness; it is obviously a matter of great importance. I have a question to which she might be able to give an answer when she winds up on this debate. Amendment 24 includes the phrase:
“or is alleged to amount to”.
Am I right in thinking that, under this amendment, it would be entirely for the alleged victim to make the allegation that it involves domestic abuse, and that would be enough to trigger the provisions outlined in the amendment?
Secondly, I would like to ask whether this amendment is being tabled in the light of any specific examples that the noble Baroness knows of, which might assist the Committee in understanding and supporting the amendment.
Baroness Smith of Newnham (LD)
My Lords, I rise briefly to support, in particular, Amendments 24 and 25. That is not to say that we on these Benches are not giving our full support to my noble friend Lady Brinton for Amendment 26, but I think the point of Amendment 24, taking the chain of command out of anything to do with domestic abuse and ABH, is very important. I very strongly want us, if the Committee does not want to press the Minister to accept the amendment as phrased, to find a way of amending the legislation such that it can be taken into consideration, so that an allegation of domestic abuse would not go to the commanding officer. If this amendment does not work, please can the Minister come back with something that the Government feel is appropriate?
On Amendment 25, as with others, my noble friend Lady Brinton has picked up the danger of people falling between service justice and civilian justice. If we need to amend the legislation then that is something we should be doing. Clearly, we do not want individuals slipping between the two.
Baroness Goldie (Con)
My Lords, in a similar vein to the previous group, I think I am pretty well on a similar page to the noble Baroness, Lady Brinton, particularly on Amendment 25, which seeks to ensure that the service victims’ code cannot be restricted to exclude victims of sexual offences or domestic abuse.
The amendment seems to me to close what looks like an unintentional gap. A servicewoman whose case is prosecuted in the civilian courts should not receive a lesser standard of service-provided support than one whose case proceeds through the service justice system. That seems to me a matter of basic fairness. I hope that the Minister will consider the merits of this amendment or at least explain clearly why, and in what circumstances, the Government believe that such an exclusion could ever be justified.
Amendment 24, I suggest, requires greater caution. I infer from the remarks of the noble Baroness, Lady Smith, that she recognises that this has to be approached with care. The amendment would remove a commanding officer’s power to hear summarily any charge of assault or actual bodily harm where the conduct amounts to domestic abuse, requiring referral instead to the service police or the Director of Service Prosecutions.
I do not dismiss the intention behind the amendment. There is a real and understandable concern that summary hearings may not be the right forum for allegations of this seriousness and that commanding officers, however well-intentioned, may not always be best placed to handle matters with the particular dynamics that domestic abuse involves. The reason why we must proceed with great care here is that the amendment touches upon the authority of the chain of command—something that is and must remain absolutely central to service discipline.
It is that authority which underpins the cohesion and ultimately the ability of our Armed Forces to fight and prevail when called upon. Any change that narrows a commanding officer’s jurisdiction, even for good reason, has consequences that ripple outwards into how units are led and how discipline is maintained. Those consequences deserve to be understood before any legislation is enacted.
I am not saying I oppose this outright. It may well be that this is precisely the direction that service personnel themselves want to see. I would not be surprised if many, particularly among victims, support exactly this change. But we do not yet know that with confidence and I am uncomfortable about pursuing so significant a shift in the chain of command’s jurisdiction on the basis of good intentions alone. What is needed is careful, structured consideration by the Ministry of Defence, drawing on the views of senior officers who carry responsibility for discipline across the force and, just as importantly, of the commanding officers at unit level who would actually exercise or lose this power. I ask the Minister to commit to precisely that engagement and to report back to this House on its findings before a change of this magnitude is made.
Lord Coaker (Lab)
My Lords, again, I thank the noble Baroness, Lady Brinton, for bringing forward these amendments, which are of significance to us all as we seek to improve the current situation. I also thank my noble friend Lord Stansgate for his contribution, and the noble Baronesses, Lady Smith and Lady Goldie. I will address some of the points they made in my remarks.
On Amendment 24, as set out by the Government in the other place, we are already committed to reviewing Schedule 1 criminal conduct offences for summary hearings and Schedule 2 serious service offences in the Armed Forces Act 2006 as part of implementing this Bill following Royal Assent. However—and I hope this speaks to the point made by the noble Baroness, Lady Goldie—for offences related to domestic abuse such as assault or assault occasioning actual bodily harm, the necessary changes will be made by secondary legislation following the review. That would obviously involve consultation with a wide range of people. Schedule 1 offences are summary offences and therefore the commanding officer has a role. Obviously, Schedule 2 offences are more serious. We are looking at what we do with respect to that and what changes may or may not be made.
The proposed changes would be consistent with current defence policy, which is that such cases should always be referred to the relevant police authority so that they can consider investigating them. Where offences are removed from Schedule 1 and added to the more serious Schedule 2, the practical effect would be that they are investigated by the Defence Serious Crime Command and, if a charge is directed, tried at the court martial rather than at a summary hearing. As I say, that will be subject to a review. The noble Baroness, Lady Goldie, raised quite considerable concern that if we did move forward, we needed to move forward constructively, carefully and with wide consultation. That review will take place to do that, but it is part of the implementation of the Bill and therefore the amendment is not acceptable to us. We do not want it in the Bill because that would prejudge any review which is to take place.
On Amendment 25, protecting victims is a clear priority. There is no question that we would ever restrict the application of the code for victims in the CJS in respect of victims of sexual offences or domestic abuse. The code for victims in the CJS is aligned with Section 2 of the Victims and Prisoners Act 2024, which sets out the statutory rights of victims in England and Wales. The code for victims in the CJS and the code for victims in England and Wales will contain the same principles and the same 12 rights. This ensures that victims of service offences and civilian victims receive equivalent standards, protections and entitlements, which goes to the heart of what the noble Baroness was asking for.
If a serving person is engaged with the civilian justice system, they will still be entitled to the single service welfare support mechanisms, which are designed and tailored to support individual needs. A range of comprehensive support from both welfare professionals and the chain of command can be employed to support personnel, tailored to those individual circumstances, and can be provided by unit welfare officers, medical staff and pastoral support. Where needs are complex or relate to serious, enduring and/or multi-agency cases, a referral to specialist welfare support may be required. This is delivered by specialist trained staff, and each of the single services offers that option in addition to first-line welfare support. Although we are not where we should be, there has been some improvement.
I thank the noble Baroness for Amendment 26, relating to production orders, and for highlighting this important issue. This new clause is not required as any change to the procedures around production orders could be enacted through the relevant secondary legislation—if a change is needed, we can do that through secondary legislation—so long as a review of the current procedures has been completed so that we know what we are doing if we seek to make any change.
On a point that the noble Baroness was asking about, we will consider further whether our procedures around production orders, specifically with regard to giving notice to the individual to whom the information relates and the provision that representations can be made, should fully reflect the relevant procedures in the civilian courts and whether it is appropriate and necessary that they do so. I reassure the noble Baroness that, while the requirement for further review around production orders is considered, victims of crime are informed about information requests from third parties. That is an important addition.
When a victim information request is submitted to a third party, service police must, under Section 44B of the Police, Crime, Sentencing and Courts Act 2022, give notice to the person whose information is being sought. However, that requirement does not apply in certain circumstances; for example, where it is not reasonably practical in the circumstances or, importantly, where doing so might risk causing serious harm to the victim or another person. Again, that is an important qualification. The code of practice relating to these requests also states that when the victim is informed, their views should be sought and they are able to make representations—again, unless specific exemptions apply.
I hope that with those explanations and reassurances, particularly with respect to one or two of the reviews, the noble Baroness may find it appropriate to withdraw her amendment.
Baroness Brinton (LD)
I am very grateful to all the speakers. To address the question asked by the noble Viscount, Lord Stansgate, I think he is looking at that clause the wrong way round. He asked about the definition of actual bodily harm, where the alleged conduct “amounts to” or “is alleged to amount to”. I think one is an incident that has been witnessed by someone who is not the victim, and the other may be where it has not and therefore it is a “he said/she said” situation. That is my understanding of why the wording is as it is. I hope that explanation helps him.
I am grateful for the support of my noble friend Lady Smith. The noble Baroness, Lady Goldie, made an important point about the chain of command, and I do not underestimate that at all.
That takes me to my response to the Minister. I am glad that there is a review, and I am sure there are many other issues as well as the ones that I have raised. However, the message that I have been picking up from the organisations and individuals I have been talking to is that in 2026 it may not be completely appropriate in some of these justice issues for the old-style chain of command to remain with the commander. If the review is going to be looking at that, I will be content not to do anything at the next stage, and ditto with the secondary legislation. If I am unhappy with the secondary legislation, I may return to the next Armed Forces Bill after this one. I beg leave to withdraw the amendment.
The Lord Bishop of Norwich
Member’s explanatory statement
This amendment, and others in the name of the Lord Bishop of Norwich, seek to remove the requirement that an offence must be a “serious offence” for a Provost Marshal to be the appropriate authority and instead allow the Provost Marshal to be an appropriate authority in all service offences.
The Lord Bishop of Norwich
My Lords, in moving Amendment 27, I will speak also to Amendments 28 to 34 in my name; I thank the noble Baroness, Lady Smith of Newnham, for her support. I declare an interest, both for this series of amendments and for my contributions in Committee earlier today, as the father of a soldier. The amendments I am proposing are all interlinked and aim to give service police the same authority to authorise and/or request pre-charge custody as is given to commanding officers in all offences. I am grateful to the Minister for his work on the Bill and for the generosity of his time in speaking to me over the weekend about the amendments in my name.
The Bill initiates the change to give service police power to authorise custody in some circumstances. This is a very welcome change and a step in the right direction in making service police investigations truly independent of the chain of command. However, in my view, it does not go far enough by failing to give service police power to authorise custody in all circumstances. The current wording of the Bill allows service police to authorise custody only for specific offences while allowing the commanding officer to authorise custody in all circumstances.
The Bill creates the definition of “serious offence” in Clause 16(3), which sets out the offences that service police can authorise custody for. However, this definition does not include key offences such as battery, harassment and stalking, as has already been mentioned, even in the case of domestic abuse. It does not include theft, even in high-value cases, nor the vast majority of military conduct offences. The definition of “serious offence” is different from “serious service offence”, which is defined in the Armed Forces (Powers of Stop and Search, Search, Seizure and Retention) Order 2009. This definition is used by service police to authorise searches upon arrest. It gives a far simpler definition of offences to include those offences and specific military conduct offences that are indictable. These differences will create additional complexity and bureaucracy for service police acting in very dynamic arrest situations and increase the risk of authorisations for custody and/or searches being made incorrectly when the definitions are so similar.
The provision to allow service police to authorise custody for serious offences is a partial step to give service police greater parity with their civilian counterparts. It is noted that the authority will likely be delegated only to OF-2s—Royal Navy lieutenants, Army captains or RAF flight lieutenants—within the service police. The civilian rank to authorise custody is a sergeant for all offences, a rank and responsibility level significantly lower than that of an OF-2. The provision also gives the service police authority to authorise custody and reduces the following risks about availability, sufficient understanding and impartiality, which are frequently experienced. I will briefly go through each of those.
First, on availability, it is a regular occurrence that commanding officers or their delegated representatives are not contactable by telephone at night and at weekends. This means that service police have to physically attend commanding officers’ houses to gain custody authorisation. When some service police shifts have only three personnel covering a huge regional area—there are five regions covering the entirety of the UK—this can delay other vital investigative actions, such as victim engagement and contact, recovery of forensic evidence and/or the conducting of searches.
Having sufficient understanding is the second point. At the moment there is an issue of some commanding officers and their delegated officers not having sufficient training in their powers. This has led to authorisations of custody being delayed as they seek further advice and, on rare occasions, custody not being authorised without significant pressure from RMP senior officers explaining the obstruction that will be caused to an investigation by not authorising custody. The intent of the Bill to allow service police OF-2s and higher to authorise custody will mean that custody will be authorised by personnel specifically trained to deal with these circumstances.
Finally, there is impartiality. An additional issue is the conflict of interest posed by allowing commanding officers or their delegated representatives to have sole decision-making on authorising custody. The noble Baroness, Lady Brinton, spoke eloquently and movingly about this area on the previous group. While most officers within the Armed Forces can appropriately be entirely impartial, there have been occasions when clear conflicts of interest have arisen. There is a significant reputational risk to the Armed Forces in this current arrangement, I suggest. Giving additional powers of authority to service police will negate the risks of conflicts of interest by ensuring that an independent service police officer can authorise custody in all circumstances.
I assure the Minister and the noble Baroness, Lady Goldie, that the proposed amendments standing in my name do not remove the ability of a commanding officer to authorise custody. None of these amendments removes their jurisdiction to conduct a summary hearing. None of these amendments changes the current situation of the case eventually being referred to the CO to consider a charge. I beg to move.
Baroness Smith of Newnham (LD)
My Lords, I rise to give my verbal support to the amendments in the name of the right reverend Prelate, which I have co-signed. I did so precisely because I think there are areas that need to be further explored. In particular, the points that he raised so eloquently need to be considered. To what extent are commanding officers or their delegated officers going to be available at precisely the sort of time when there might be a need for considering custody? It might well be the time that commanding officers are not available. It would be much more sensible to have a single approach where we have police who have the training and who understand what the requirements are.
There is also the issue of impartiality, which came up in the previous group of amendments. Although I understand the reservations of the noble Baroness, Lady Goldie, about taking commanding officers out of the equation, there might at times also be a case for a degree of objectivity. These amendments seem to be straightforward, logical and arguably desirable, so I now expect the Minister and the noble Baroness, Lady Goldie, to explain to us why they do not quite think this is the case.
Baroness Goldie (Con)
My Lords, I wish to make it clear that I tabled the Clause 16 stand part notice not because I oppose the changes the Government are making but because I seek some clarifications on the intended effects and operation of the changes being made. I am particularly grateful to the right reverend Prelate the Bishop of Norwich for his engagement with my noble friend Lord Minto on this matter. He offered an insightful explanation of the effects of Clause 16 and the intention behind his amendments, which I will comment on in due course. I also recognise the pressure that has built since the Etherton review for greater independence in the handling of service justice matters, but Clause 16 makes a significant change to how pre-charge detention operates.
As I understand it, Clause 16 amends Sections 98 and 99 of the 2006 Act so that the authorisation and review of custody without charge—currently a function of the commanding officer—is transferred to a newly defined “appropriate authority”. The commanding officer will no longer be the person to whom an arrest and its grounds must be reported, nor the person who orders release once the grounds for detention fall away. In cases involving serious offences, the Bill goes further, requiring matters to be reported beyond the commanding officer altogether. I press the Minister on what this means in practice.
Custody decisions sit close to the heart of a commanding officer’s responsibility for the people under his or her command. A commanding officer who no longer authorises, or is even routinely informed of, the custody of a member of the unit loses a degree of visibility over discipline and welfare that has traditionally gone hand in hand with command. I am not arguing that visibility must always trump independence. There may be good reasons, particularly in sensitive cases, for distancing these decisions from the chain of command. But what happens in operations, for example, where a commanding officer’s swift decision-making may be necessary? What assessment has been made of the effect on unit cohesion and discipline where a commanding officer is no longer the first port of call?
Service justice depends on decisions being made promptly by somebody with the standing and the proximity to make them properly. If the appropriate authority is going to be some distance removed from the unit, either in rank or in geography, the Government need to explain how that gap will be bridged without compromising either the rights of the individual in custody or the operational chain of command’s ability to function. I hope the Minister can set out clearly what triggered these changes and why they are necessary. Very importantly, what alternatives were considered? Equally importantly, what consultation took place with commanding officers themselves before this approach was settled upon?
Having said that, I understand that there are instances where commanding officers have been too close to the matters in hand and have therefore not appropriately dealt with the accusations. The right reverend Prelate has argued that the provost marshal should have the ability to be an appropriate authority in all service offences, not only in cases where a serious offence has been committed. I have considerable sympathy with that view. If we are to make the change the Government propose—although I have some reservations, I do not oppose it outright—it is certainly sensible to extend the involvement of the provost marshal. I shall await with interest the Minister’s comments on the arguments advanced by the right reverend Prelate, and on the potentially enhanced role of the provost marshal.
Lord Coaker (Lab)
My Lords, I thank the right reverend Prelate the Bishop of Norwich for tabling his important amendments and for the debate and discussion that will take place in Committee as a consequence. I also thank him for his time over the weekend. We had a very interesting conversation about these and some further amendments he has tabled in later groups. I also thank the noble Baroness, Lady Goldie, and others who have contributed.
Rather than addressing the specific amendments, and I apologise that I may have to speak for a few minutes to put some important points on the record, I will start by speaking to Clause 16. Under the current legal framework of the Armed Forces Act, only the commanding officer of a suspect can authorise their pre-charge custody after arrest. In routine cases, that remains appropriate—which goes back to the points that the noble Baroness made about the role of commanding officers—but in serious and fast-moving investigations, the need to obtain that authorisation can create avoidable delay, risk the loss or contamination of evidence, and increase the risk of further harm to victims, witnesses or the suspect.
The Lord Bishop of Norwich
My Lords, I am grateful to the Minister for his response and for agreeing to look further at the availability of commanding officers. We should remember that, very often, it is their delegated person being dealt with. They can frequently not have had their required training in this area, which means that it is actually the Military Police advising the delegated person to make the decision to tell the Military Police. There are some things to explore there within the Ministry of Defence and I am grateful that the noble Lord has agreed to look at that further.
The key thing here is speed and simplicity. Both are needed in the custody process so that there is justice for all and decisions are made in a timely way, so that the due process can happen. I am grateful to the other speakers—to the noble Baroness, Lady Smith of Newnham, for her support and to the noble Baroness, Lady Goldie, for her very considered reflections and challenge. I look forward to seeing how this progresses with the Minister’s response and I reserve the right to bring this back on Report, but for now, I beg leave to withdraw my amendment.
Baroness Goldie
“(iii) a retired holder of such a rank.”Member’s explanatory statement
This amendment would add retired officers to those qualified for membership of the Court Martial.
Baroness Goldie (Con)
My Lords, we are getting into the home straight, so I will try to accelerate the pace. The effect of Amendment 35, tabled in my name and that of my noble friend Lord Minto, would be to add retired holders of a qualifying rank to those eligible to sit as members of a court martial. The problem this amendment addresses is a simple one of numbers: court martial panels must be drawn from officers of sufficient seniority and, crucially, sufficient distance from the defendant to ensure impartiality. Where the defendant is of relatively junior rank, that pool is large enough, but where the defendant is a senior officer, the pool of serving officers senior enough and unconnected enough to sit in judgment shrinks dramatically.
The Committee will recall that, when the service justice system last had to try an officer of very senior rank, the court administration unit struggled to assemble a panel at all, precisely because every available serving officer of sufficient seniority had some prior connection to the defendant, whether through shared courses, shared postings or simply the small world that senior rank inevitably creates. It was only the defendant’s departure from the service by the time of trial that allowed the difficulty to be resolved through the use of civilians, a workaround unavailable had he still been serving. This is an example that the Minister himself used to defend the Government’s changes to the court martial through the Armed Forces (Court Martial) (Amendment) Rules 2024.
When this amendment was debated in the other place, the Minister responded at some length on a related but distinct point concerning the automatic qualification of former warrant officers who receive a commission. That is a fair point, so far as it goes, but it does not address the underlying difficulty my honourable friends identified, which was the shortage of eligible serving officers when the defendant is senior. I do not believe that concern has yet been answered, and I hope the Minister will use this opportunity to address the point.
The other matter raised in Committee in the other place by the then Minister, Al Carns, was that there was no capacity issue for the courts martial, but that was not the experience of my honourable friends, who undertook a visit to Portsmouth as part of their work on the Committee, nor the recollection of the Liberal Democrat Member of the Committee. While capacity in the service justice system might not be the most severe problem in the world at the moment, what is to say it will not become so? So why not safeguard against that possibility by allowing retired officers to also partake in the court martial? This is a fairly straightforward and perfectly well-intended proposal and I hope the Minister might be able to look on it with some favour. I beg to move.
Baroness Brinton (LD)
My Lords, my noble friend Lord Thomas of Gresford is, unfortunately, unable to be in his place tonight, so I am speaking on his Amendment 36.
In October 2006, my noble friend Lord Thomas of Gresford moved an amendment to the Armed Forces Bill, with the support of Air Marshal Lord Garden to confine sentencing in court martials to the presiding judge advocate alone, following consultation with the members of the panel. He said: “The area of sentencing for criminal offences is difficult and complex. Sentencing is an exercise for which the members of the panel have no training whatever. They do not attend sentencing conferences or have the training on sentencing that the most junior assistant recorder in this country receives, let alone any further or higher training for dealing with serious offences”.
The 2006 Act was a major reform of the system but did not include this particular amendment. It did, however, abolish the pre-existing review system whereby the Judge Advocate-General reviewed the conviction and sentence before they became final, a process which historically had operated as a check on the sentence passed. The 2006 Act introduced a service supervision and punishment order under Section 173, which imposes a quite concrete restriction on a serving soldier’s movements.
A service community order employs the community order requirements contained in the civilian sentencing legislation, adapted for service courts. The court martial can impose one or more requirements on the convicted serviceman as part of such an order. However, the SCO is principally a sentence for someone who is being dismissed from the service, and it follows him into civilian life. The recent Sentencing Act 2026 brought in the possibility of new restrictions to the SCO, the most important of which is the imposition of a restriction zone to prevent an offender from entering a particular area with, for example, the intention of assaulting or harassing a victim. Other restrictions may prevent him drinking in certain pubs or attending public events or even impose restrictions on driving.
There is, therefore, a whole army of sentencing disposals for those who are convicted. Professional judges are trained to weigh the advantages and disadvantages of imposing particular restrictions on the individual who stands before them. This requires experience and judgment. The court martial panel consists of a president and members of warrant officer rank and above who are drafted in for a particular case. The president is usually an officer for whom the position is a final posting, but the members may never have been in any sort of court before. Compare that with a magistrates’ court. The sentencing powers of a magistrates’ court are still restricted to 12 months’ imprisonment on a single charge, even though the magistrates will individually have undergone considerable periods of training. The court martial panel, without any training, is unrestricted.
Further, there is no longer a review by a professional judge of the sentence they choose to pass. Certainly, the judge advocate at the hearing can advise the panel and has a casting vote in the event of equality of voting by the members, but he can be outvoted altogether and his advice ignored.
In 2014, my noble friend Lord Thomas of Gresford gave evidence before a departmental review in Washington as part of an inquiry which led to widespread reforms of the military justice system in the United States, the equivalent of our 2006 Act. These reforms were intended to transform military justice from a disciplinary system operating under the chain of command to something increasingly resembling an independent criminal court operating within US Armed Forces. In its report, the 2015 Military Justice Review Group also pointed out, as my noble friend had urged, that military judges had greater experience and expertise in sentencing than randomly selected panel members. It was concerned about sentencing disparity. The existing system gave the panel very broad discretion and relatively little guidance. From a constitutional point of view, it was concerned that there was the perception of command influence over sentencing and military command culture could influence punishment. It is perhaps possible to detect such a culture in the public utterances of a certain Mr Hegseth.
In its Military Justice Act 2016, Congress compromised on the issue. Judge-alone sentencing became the norm, but as a concession to tradition, a convicted person was entitled to opt for sentencing just by the panel alone. During the four years that followed that Act, it was observed that defendants chose judge-alone sentencing in 96% of the cases. As a result, the Independent Review Commission on Sexual Assault in the Military, established in 2021 in the aftermath of intense congressional debate over sexual assault in the armed forces, was concerned in sexual offences cases that a service court martial panel would almost inevitably be male dominated, as in the case of Captain Jacob Wulfson from Lakenheath, that the noble Lord and I both referred to at Second Reading.
The commission recommended judge-alone sentencing in all non-capital general and special courts martial, subject to the establishment of sentencing parameters and mandatory restitution, akin to our own Sentencing Council. We have always led the USA in the reform of military justice, and it galls me that in this instance, it has taken the right and proper lead that sentencing is a matter for professionals and not for one-day amateurs.
Lord Coaker (Lab)
My Lords, I thank everyone who has spoken in the debate and for the thoughtful comments they have made. To deal with the point made by the noble Baroness, Lady Goldie, the information I have is that there is no shortage of court martial board members. I can give the figures that the ministry has provided to me: in 2025, 447 service personnel were sworn in for 283 trials, and there has been no difficulty in constituting boards. The court martial already draws from a sufficiently wide pool of eligible personnel, so, as such, the amendment is not required. If she has more detail that she would like to share, obviously that would be useful, but that is the information that I have been provided with.
It is vital that board members are up-to-date and possess the necessary practical experience of the latest single service policies, procedures, standards and values. For that reason, individuals who have left service even recently may no longer be as acquainted with changes across the services since their departure. The Government acknowledge the valuable, meaningful contribution that veterans continue to make across our society. However, we do not consider it necessary or appropriate to seek to draw on their past experience and knowledge for service on a court martial board, particularly when there is no shortage of board members.
Amendment 36, tabled by the noble Lord, Lord Thomas of Gresford, ably spoken to by the noble Baroness, Lady Brinton, seeks to remove military lay board members from the court martial sentencing process, so that sentence would be decided by the Judge Advocate alone. One argument often used is that this would mirror the Crown Court in England and Wales. However, I do not agree that the Crown Court model should simply be replicated in all cases within the UK service justice system. The current position is the same as that during the passage of the previous Armed Forces Bill in 2021, that the Judge Advocate and the service members of the board discuss and decide the sentence together. That is not an anomaly or a weakness; it is one of the strengths of the court martial to have service members and the Judge Advocate deciding on sentences together.
In answer to one of the specific points made by the noble Baroness, Lady Brinton, that does not mean that the UK court martial has remained unchanged since the 2021 Act was implemented. In 2022, a new court martial rule was introduced that ensured that each court martial board includes at least one servicewoman. This is not sufficient, but it is a step forward. That is the only point I would make—which I am not sure my noble friends to the left of me totally agreed with—but all I am saying is that while it is not sufficient, it is a step forward.
In 2025, 28% of the service personnel who were sworn in as board members for court martial proceedings were women. Again, that is not what it should be, but it is a significant improvement. Since December 2024, court martial boards have been almost exclusively tri-service.
The judge advocate is of course the expert on sentencing. It is true that any sentence passed by the court martial must be determined by a majority vote, meaning that the judge advocate’s voice could, theoretically, be outweighed. However, the judge advocate will give the board the legal framework, identify the relevant sentencing guidelines and set the proper parameters within which the sentence must be considered. Failure to have regard to those guidelines and parameters opens the way to an appeal in the Court Martial Appeal Court.
The board members do not replace the judicial role. Their role is different and complementary. They bring current service experience to the assessment of what sentence is appropriate within the lawful framework. Service personnel are subject to rules, standards and operational expectations that go beyond ordinary civilian employment. Conduct that might appear straightforward in a civilian setting can have a markedly different impact in the military context, particularly where it affects discipline, cohesion, readiness, safety or operational effectiveness.
Board members bring up-to-date knowledge and real-time experience of single service policies, procedures, values and standards. The amendment would reduce the board’s role from one of equal participation to one of consultation only. There is a real difference between being consulted and being part of the decision. Consultation would mean that the judge advocate could hear the service perspective but reject it. The current system ensures that the service perspective is taken into account in the sentencing decision, while remaining subject to the judge advocate’s firm legal direction.
Nor is there any legal issue that this amendment needs to address. Sentencing in the court martial is already subject to stringent legal controls. The court martial must have regard to the relevant sentencing guidelines, which for criminal offences incorporate the same guidelines used in the Crown Court and the magistrates’ courts. The Judge Advocate-General also issues detailed sentencing guidance for the service courts. Aggravation and mitigation are fully addressed in open court by the prosecution and defence, and pre-sentence reports from experienced probation officers are available where required. Sentences are reasoned in open court and may be reviewed subsequently by the Court Martial Appeal Court.
It is also important to remember that, while military experience informs sentencing, it does not displace the legal principles governing it. Any mitigation advanced on behalf of an offender—whether arising from previous operational service, commendations, awards or personal circumstances—must be assessed within the sentencing framework directed by the judge advocate and in accordance with applicable sentencing guidelines. To be clear, board members are not free to substitute personal views of military merit for the lawful sentencing exercise, and any sentence that failed properly to reflect the relevant legal principles would be liable to appeal.
As court martial sentencing includes service-specific sentences such as dismissal, reduction in rank and service detention, military board members are particularly well placed to assess the practical effect of those sanctions on both the individual to be sentenced and the wider service community. Board members are lay decision-makers directed to exercise their own independent judgment: importantly, they are not representatives of the chain of command. Their current military experience assists the court; it does not compromise the court’s independence.
The Government argue that the amendment would therefore reduce the service character of the court martial without adding any significant additional safeguard. We believe that the current balance is the right one: the judge advocate provides the legal expertise and safeguards; the lay board members provide current military experience and independent judgment. Together, they produce a sentence that is lawful, reasoned and properly informed by the service context. For these reasons, I ask the noble Baronesses not to press the amendments.
Baroness Goldie (Con)
My Lords, I am very grateful to the Minister for his response to my amendment. My concern focused on the specific issue of where a senior officer faces a court martial. The pool of eligible serving officers able to sit without any prior connection to the defendant is small. My question was not one of overall capacity, which was, I suggest, the issue that the Minister chose to address.
I do not want to make a meal of this—can the Minister go back to his officials and seek an assurance that they are not aware of any specific case of it proving difficult to man a court martial where a senior officer is charged with an offence and it is important and necessary to secure a pool of comparably qualified officers?
Baroness Goldie (Con)
In that case, I am grateful to the Minister and I therefore beg leave to withdraw the amendment.
Baroness Goldie
“Removal of presumption of suspended sentence orders(1) The Armed Forces Act 2006 is amended as follows.(2) In section 200 (suspended sentence orders), omit subsections (1)(aa) and (1)(ba).(3) Omit section 200ZB.”Member’s explanatory statement
This amendment removes the presumption of a suspended sentence order from the service justice system.
Baroness Goldie (Con)
My Lords, Amendment 37 is tabled in my name and that of my noble friend Lord Minto. This issue has caused deep disquiet on these Benches for many months. We have opposed the Government’s introduction of a presumption of suspended sentence orders for sentences of over 12 months on numerous occasions. We opposed this presumption when it was introduced in the Sentencing Act and we opposed it again when the Government resisted our attempts during the passage of the Crime and Policing Bill to carve out exceptions for repeat and dangerous offenders.
My noble friend Lord Davies of Gower warned this House at the time that, under this presumption, a stalker could breach a protection order or a suspended sentence order and still never see the inside of a prison cell. My noble and learned friend Lord Keen of Elie pressed similarly and rightly for sexual offenders and domestic abusers to be excluded from a presumption that treats a 12-month threshold as an almost automatic bar to custody. The Government and the Liberal Democrats resisted both attempts. We believe that events will prove these warnings correct and we do not resile from them now. Our objection to this presumption has never been confined to any one category of offence. It is a broader objection that Parliament should not instruct judges as a starting proposition to look away from custody before they have even considered the facts before them.
The evidence on breach itself gives us little comfort. Where a suspended sentence order is actually breached, whether by reoffending or by failing to comply with its requirements, research from the Sentencing Academy shows that only around half result in the sentence being activated in full or in part. In practice, that means an offender can breach the very order that was meant to hold a custodial sentence hanging over their heads and still avoid serving it. Given that theft offences, including shoplifting and offences of violence, make up a substantial share of those receiving suspended sentences, this presumption risks something close to the effect of decriminalisation of persistent minor theft. An offender can be convicted, be sentenced, breach the terms without sentence, and still walk away.
It is our view that the presumption generally is a folly, but it is equally a folly for the presumption to exist in the service justice system. Indeed, I would go further. The case against it is, if anything, stronger in a service context. Good order and discipline within the Armed Forces depend on offences being met with a proportionate and, where necessary, custodial response, determined by the court on the facts of the case, not nudged towards suspension by a statutory thumb on the scales. A commanding officer’s confidence in the system and the confidence of the wider service rest on knowing that serious or persistent offending will be met with a sentence that reflects it.
This amendment would simply restore to the service courts the same sentencing discretion that existed before this presumption was imported wholesale from the civilian system. Given all we have discussed today regarding sexual abuse, stalking and the general treatment of female members of the Armed Forces, I think it is a dereliction of duty to allow this presumption to stand. I beg to move.
Baroness Smith of Newnham (LD)
My Lords, I am grateful to the noble Baroness, Lady Goldie, for introducing her amendment and clarifying why she believes it is necessary. What I would be grateful to hear from the Minister is an explanation or clarification about whether a breach of a suspended sentence order would not then trigger the sentence. It is one thing having a presumption of a suspended sentence order in the first instance, but if there are then cases of people breaching those orders, the noble Baroness, Lady Goldie, is right that that seems to be decriminalisation. Surely that is not the intention of the legislation as it stands. If it is, can the Minister tell us whether he feels that is undermining service justice?
Lord Coaker (Lab)
It was all going so well. I do not think there is a unanimity of view on this one. I start, however, by thanking the noble Baroness, Lady Goldie, for moving the amendment. I think we will probably end up debating this issue again; we may all be a little bit more excitable in the way that we deal with it.
In answer to the point from the noble Baroness, Lady Smith, of course a breach of an order means someone can be recalled. That is like any court order; if it is breached, the court has the power, capability and capacity to bring people back and deal with it appropriately then.
Amendment 37 would remove the presumption of suspended sentence orders from the service justice system. In doing so, it would reverse a reform that was introduced to align the service justice system’s sentencing practices with wider government sentencing policy while preserving the unique requirements of service discipline. The presumption forms part of the Government’s response to former Lord Chancellor David Gauke’s Independent Sentencing Review 2025, which recommended reducing the use of short custodial sentences and increasing the availability of suspended sentence orders. The policy was based on evidence that short custodial sentences are often less effective at reducing reoffending than community-based interventions. It therefore sought to encourage rehabilitative disposals that better support longer-term public protection.
The reform—this is the crucial point—does not remove the ability of service courts to impose immediate custody. Courts retain the discretion to do so where there are exceptional circumstances or where immediate custody is necessary to maintain service discipline. I think that is the fundamental point: in the end, the court makes the judgment as to whether it should apply immediate custody or allow a suspended sentence. Suspended sentence orders remain an effective sanction, carrying punitive and rehabilitative requirements and the prospect that the custodial sentence will be activated, which is the point I have just made to the noble Baroness, Lady Smith, if the offender fails to comply.
It is the Government’s long-standing policy that the service justice system should emulate the civilian criminal justice system unless there are compelling service-specific reasons to deviate from it. The Government are not persuaded, and neither am I personally, that such a case has been made here. Furthermore, removing the presumption in the service justice system alone could lead to different sentencing outcomes for similar offenders across the civilian and service jurisdictions. It could also complicate decisions about the appropriate jurisdiction where there is no service interest justifying divergence.
For these reasons, the Government consider that the current approach strikes the right balance between rehabilitation, judicial discretion, service discipline and consistency across the justice system. I therefore invite the noble Baroness, Lady Goldie, to withdraw this amendment, although my suspicion is that we may return to this particular debate and discussion. As I say, we might do it at a more excitable time when we can all explore what is a fundamental point within our society that needs to be aired.
Baroness Goldie (Con)
My Lords, I am grateful to the noble Baroness, Lady Smith, and indeed to the Minister for his response. We are not going to conclude with consensus between us, but we shall bear our disagreement with a smile upon each other.
The Minister argued that the alignment with the civilian system is what justifies this change, but service justice depends on proportionate case-by-case judgment and the maintenance of discipline. I have heard nothing today to persuade me that a presumption of suspended sentence orders is desirable, sensible or right. Therefore, I beg leave to withdraw the amendment, but the Minister is correct in his prediction: I reserve the right to return to this on Report.