Armed Forces Bill

Lord Thomas of Gresford Excerpts

2nd reading
Monday 6th July 2026 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, it is a pleasure to follow the noble Lord, Lord Morse, who spoke movingly of his experience of some 25 married quarters and the immense debt we owe to the services. I entirely agree with him. I declare an interest as president of the Association of Military Court Advocates, though I speak entirely on my own behalf.

In the last 30 years, the traditional court martial system has been completely overhauled as a result of the European Court of Human Rights decision primarily in the case of Findlay in 1997. It was ironic to hear the noble Earl, Lord Minto, talk about the modernisation of the justice system and at the same time call for the abolition of our membership of the European Court of Human Rights. I had a flash of when I was a bus conductor as a young man and the driver told me how, in his youth during the First World War, he had been tied to the wheel of a gun carriage and lashed. The military justice system has come a little way forward since those times.

As the noble and gallant Lord, Lord Craig of Radley, reminded us, the main reforming legislation was the Armed Forces Act 2006, which set up a justice system under the control of civil judges in serious cases and, in particular, independent of the chain of command. On our last excursion into this area in 2021, more reforms were pushed through which have now been brought into force. I am pleased to see further important reforms in this Bill, which I entirely support. It is extremely important to the recruitment and retention of personnel not just that the social and welfare conditions of the Armed Forces are maintained, matters with which this Bill also rightly deals, but that, where problems arise, the justice system is fair, appropriate to the conditions of service life, proportionate to the civil system and, above all, attracting the confidence of those who serve.

The area that has given rise to controversy is that of sexual and harassment offences. Although there has been a great deal of improvement in the investigation and support services, there remains a need for vigilance at all times. It is an area of concern to military justice not just in the United Kingdom but in the United States. I gave evidence to a Department of Defense review in Washington DC in September 2014 when the issue was very much alive in relation to American forces. My evidence concerned the matters I have referred to: the independence of the chain of command and, in particular, the employment of civilian judges experienced in Crown Courts. However, the US Department of Defense committee was persuaded by a formidable array of gold-braided generals, led by the chief of the general staff, to maintain its existing system of ranking military judges acting within the chain of command.

There are therefore significant procedural differences between British and US courts martial which have an impact on US forces stationed in this country. I am grateful to my noble friend Lady Brinton for raising the case of Captain Jacob Wulfson, referred to last week. Your Lordships will recall that this was a sexual attack by an off-duty US pilot on a British lady in civilian accommodation in the city of Cambridge. That offence in 2023 gave rise to concurrent jurisdiction between the British and US authorities. Prima facie, where an offence by an off-duty American serviceman against a British civilian takes place outside the ambit of an American base, the appropriate investigation should be by UK police and the prosecution should be brought in our own Crown Courts.

What happened in this case, however, was that the Cambridgeshire police waived jurisdiction and the trial took place by court martial before a US military judge and a convened panel in the Lakenheath base. It is undoubtedly the case that, without any of the measures we have developed to protect the victim as a witness, the attack on the lady’s character by a US defence attorney went far beyond what would be permitted in a UK Crown Court. Captain Wulfson was acquitted of a rape-type charge but convicted of strangulation—something he admitted had happened in the course of their encounter. In accordance with the practice at the time, the sentence on him was determined by the lay panel of fellow officers at the US base, and he received six months’ detention in a commodious detention facility on camp. He was also dismissed from the service.

Two issues arise, and the first is jurisdiction. On what basis did the Cambridgeshire police hand the case over to the US military police for investigation? There are unpublished agreements—the details of which we know nothing—between the Attorneys-General of the United States and the UK. Will the Government undertake to publish those agreements in the interest of transparency? Should there not be a register kept of decisions made by UK authorities to waive jurisdiction which would set out in writing the reasons for such waivers, whether by the police, the CPS, the Director of Public Prosecutions or the Director of Service Prosecutions? This would inform the public and enable a victim to challenge such decisions by way of judicial review if the quality of justice was at risk.

The second issue is sentencing. In this country, the sentence is determined by the board sitting with a judge advocate, who advises the members on the law and the scale of sentence recommended by the Sentencing Council for a particular offence. In the event of an equality of votes among the members of the board, the judge advocate has a casting vote. I have argued in the last two Armed Forces Bills that, in the modern era, the judge advocate in the UK system should sentence alone, on the basis that the exercise of sentencing today is highly technical and beyond the competence and experience of members of the board who, unlike magistrates, have no training and have probably never been in court before and are unlikely to be there again.

This sensible reform has always been resisted, on the basis that the board of senior officers and NCOs has the military experience valuable for addressing the just penalty. That view has been supported elsewhere. However, I would argue that a judge advocate sitting in courts marital on a daily basis has more than adequate experience of the military world. The wholly inadequate sentence passed in the Wulfson case shows what can happen when sentencing is left to amateurs. In the US system, the military judges’ role—in accordance with the practice then in force—was limited to indicating to the panel the maximum and minimum levels of sentencing. That US system has since been replaced and, had the offence occurred after December 2023, the process would have followed the system I have been putting forward for years, in which the judge passes the sentence alone. Wulfson was lucky. I hope to advance these areas in Committee.