Lord Thomas of Gresford
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Armed Forces Bill
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“Membership of the Court Martial
(1) Section 155 of the Armed Forces Act 2006 (constitution of the Court Martial) is amended as follows.(2) In subsection (3)(b), leave out from “rest” to end of line and insert “may be drawn from all ranks who are qualified for membership and not ineligible under section 157.”(3) In subsection (4) at end insert “which may, in particular, provide that the persons specified in subsection (1)(b) be drawn from each and every branch of the armed services.””
Lord Thomas of Gresford (LD)
My Lords, I start by reminding your Lordships that at Second Reading I expressed my concern about the reputational damage that might be done to the forces’ disciplinary service by the possibility of future cases attracting the sort of adverse publicity that has occurred in the past. When we dealt with the 2006 Act we sorted out many of the problems that then existed, and the system was completely changed so as to reflect decisions made in the European Court of Human Rights about fair trial. I had no concerns about Sections 1 to 39 of the Act, which dealt with what I regard as disciplinary offences—indeed, “discipline” and “offences” are headings in Part 1 of the Armed Forces Act 2006. They might be offences such as assisting an enemy, mutiny, desertion, insubordination, neglect of duty, offences against service justice, hazarding of ships and so on. To my mind, those things were satisfactorily dealt with at that time.
However, Section 42 of the Act was concerned with criminal conduct. Repeating provisions in earlier service disciplinary Acts, it effectively made an ordinary criminal offence part of the service discipline system, so that:
“A person subject to service law, or a civilian subject to service discipline, commits an offence … if he does any act that … is punishable by the law of England and Wales; or … if done in England or Wales, would be so punishable”.
In other words, the whole corpus of the criminal law that is used in our ordinary criminal courts was imported into the service disciplinary system.
At that time, I moved certain amendments having regard to Section 42 which I hoped would mirror the proceedings that happen in the Crown Courts of this country when such criminal offences come before those courts. I do not apologise for repeating some of those amendments today.
We were concerned particularly about justice between state, the prosecution and the defendant, but there is another element in it which I think was of less significance at that time than it is now; that is, the position of victims. We have seen such adverse publicity—including, for example, the Sergeant Blackman case—which is damaging to the service disciplinary procedures. It is very often proceedings or publicity that is sought by the victims of various offences.
I want to take a step back to look at the police and the banks in this context. As an example, PC Harwood was prosecuted for manslaughter in the Old Bailey for the death of Ian Tomlinson, the person whom he struck in a demonstration in the City of London in 2009. If that prosecution had been carried out by senior officers in the police and they made the decision that he was not guilty of the manslaughter offence—as he was found by an ordinary jury in the Old Bailey—I am sure that there would have been very great public concern. Had the officers who were concerned with the death of Jean Charles de Menezes in 2005 been prosecuted before a panel of senior police officers, there would have been a public outcry.
Some years ago under the Labour Government we were concerned with attacks upon the jury system. There was a strong call at that time for there to be special juries consisting of City people—accountants, bankers—who would understand the workings of the City in a way which an ordinary jury, it was argued, could not possibly comprehend. That was before the 2008 crash. Bankers have become rather less popular than they were in those days. One can imagine the public outcry that would have followed if bankers had been asked to determine the guilt or innocence, the honesty or dishonesty, of one of their own kind.
I know that there are differences, but I use the police and bankers to illustrate public perceptions of justice that is carried out by the services. I do not agree that there is injustice, but I suggest that there is a lack of confidence among the public and victims regarding the way that their concerns may be treated in the military court martial system. I declare an interest as the chairman of the Association of Military Court Advocates. I have had experience of serious murder cases and so on in the services and I have every confidence in the judges and those who appear in those court martial courts. However, I am concerned about public perception.
There are two ways in which one can approach this. One can say, let us change the system so as to make it closer to the Crown Court. Or one can say, take the serious offences away from the court martial system altogether. I am following both as alternatives in the amendments I am putting forward. I am now speaking to Amendments 1, 2 and 3 and draw your Lordships’ attention to them.
The first amendment would widen the pool of those who can sit on the panel that decides guilt or innocence in a court martial. Instead of having officers and perhaps one warrant officer—the most senior of the other ranks—sitting on a court martial as at present, it should be open to all ranks. There are those who are used to looking at the forces as a family with a familial feeling towards its members and who feel that officers are responsible for their men, as they know them and they know the circumstances, and that they should be the people who decide and so on. I know that that is the system but there is nothing particularly revolutionary about having all ranks sitting on courts martial. Although there are criticisms of the American system of courts martial, voiced in particular by my opposite number in the United States and the national military justice organisation that he heads, nevertheless in 1952 it was decided that other ranks could sit on courts martial where a defendant asked for that.
It seems to me that the time has come to widen to other ranks the people who can appear in courts martial, so Amendment 2 says:
“A person is qualified for membership of the Court Martial if he or she is a serving member of the armed forces and is subject to service law”.
It does not have to be an officer or a warrant officer; people can be drawn from a wider pool. It is my view that that would give rather more public confidence in the system of courts martial than the top-down system that we have at the moment, and have always had, of officers and the warrant officer sitting in judgment.
Noble Lords will see that Amendment 3 deals with another aspect. Whereas in the ordinary courts of this country where we have a jury sitting, guilt is established either by the unanimous verdict of the jury or by a majority consisting of no less than 10:2 or, if the jury has dropped to 11 members, 9:2, the system in the Armed Forces is, and always has been, that it is determined by a simple majority. Therefore, if five sit on the panel, a person can be found guilty by 3:2, and, if seven sit, it can be 4:3. The way in which the panel votes is never made public. It is never said that this is a majority verdict; a simple majority verdict is returned. Consequently, in Amendment 3 I suggest that we should change the system and that, where there are not fewer than seven members of the court, five should agree on the finding, and, where there are five members of the court, four should agree on the finding.
I repeat that the current position is that the judge advocate has no vote. If the finding is one of guilt, the president should state in open court the numbers who agreed and dissented from the finding and the panel should have time, as does an ordinary jury, to consider reaching a unanimous verdict before coming to its conclusion. At the moment, it is theoretically possible for the panel to retire and for a verdict by a simple majority to be passed immediately, with the panel returning to court and delivering the verdict. If the verdict is one of guilt, the defendant does not know that there were those who did not accept the finding.
New subsection (5) proposed under proposed new subsection (2) in Amendment 3 is also important. Currently, the panel with the judge advocate taking a part determines the sentence, but we have got to a situation where sentencing is so complex that I suggest that the judge advocate alone should pass the sentence—there are so many options and precedents that it should not be decided by the panel—after consultation with the members of the court martial.
Lord Thomas of Gresford
My Lords, I am most grateful to the Minister for his lengthy and very careful response to what I have put forward. I was very amused to learn that rules had been passed that court martial panels may be drawn from across the services. When I proposed that precise amendment to what became the 2006 Act, I was seized by three noble and gallant Lords in the corridor, one of whom said that I should be shot for making such a suggestion.
Lord Thomas of Gresford
I am sure that the noble Lord, Lord West, would have added a keel-hauling or something of that nature.
I am grateful to the noble Lord, Lord Tunnicliffe, for his support for my amendments. No doubt we will have some fruitful discussion on a way forward. I agree with the noble Earl, Lord Attlee, that an investigation into how court martial panels deliberate would be apposite; it is a good suggestion. There are all sorts of problems around it, and if the public do not have confidence in the court martial system, which is what I believe and the thrust of what I am saying—that although I personally have confidence, the public do not—such an investigation would in one way or the other be very good.
However, the noble Earl may have misread my amendments. I am not looking for leniency. I have no reason to suppose that court martial panels that consisted of other ranks would be more lenient; I rather agree with him that they could well be tougher. What such panels would be is more understanding. They would appreciate things more. I know that the Armed Forces regard themselves as a family and I concede to what the noble Lord, Lord West, has said, but there is a gap in understanding between the other ranks and the officers of what motivates people. That is where an extended panel would be useful, helpful and more just. It is not about leniency at all. The noble Earl should not think that I am a particularly lenient person. I have sat as a judge and prosecuted many times, and leniency is certainly not a part of that.
I tend towards the thrust of the noble Earl’s comments, supported by the noble Lord, Lord West, that it is all about discipline. The fact is that if anyone is convicted at court martial of a serious offence, he is out and he loses his pension rights. It is not a question of discipline for a serious offence. As I indicated at the beginning, I have no objection to the court martial system in relation to Sections 1 to 39 of the 2006 Act, which cover mutiny, absence without leave, desertion and issues of that sort. But where I think the court martial system lacks public confidence is when it deals with other criminal offences which are normally dealt with in the Crown Court. The maintenance of discipline is not particularly apposite, in my experience. People who are convicted of serious offences, as I have said, are thrown out.
Many of the Minister’s remarks were addressed to the issue of sentencing. I do not believe that the sentences of the courts martial are particularly wayward, as we have a very good system of judge advocates who assist them in their deliberations. But the noble Earl will know that the current Judge Advocate-General has argued many times—as he did in 2006 before a committee of the House of Commons—that sentencing should be a matter for a professional judge, as judge advocates are, and not left to a panel of officers for whom it may well be their very first meeting with the criminal law in any context. They are not experts. They are appointed to a court martial board—perhaps the noble Lord, Lord West, has more experience of courts martial than most people, from all points of view—but most who sit on a panel do it perhaps once or twice. The president of the court is a more permanent official, of course, but a judge advocate is a professional judge who goes on training course after training course, sits in the Crown Court when not sitting as a judge advocate and has the fullest experience of sentencing and what is appropriate in a particular case. I do not suggest that he should sentence when uninformed himself, nor does the Judge Advocate-General, but that he should consult the members of the panel, listen to their views and take into account the maintenance of discipline, if that is what is required in the case.
Earl Attlee
My Lords, I am not quite sure why the panel should go outside the guidance of the judge advocate. For me, the noble Lord, Lord Thomas, has not produced a convincing case why it should do that. Why would it not adhere to the advice of the judge advocate because, as the noble Lord told the Committee, it is very good advice?
Lord Thomas of Gresford
I am not going to recount anecdotes but it is not necessary for the panel to follow the advice of the judge advocate who is sitting in a particular case if it chooses not to do so. Very often when a person is found guilty, the sentence may not be obvious. It may be a choice between various courses such as imprisonment, a sentence that does not involve imprisonment, or sometimes whether someone should go back to Colchester for retraining—a disciplinary approach—so there are different possibilities.
Earl Attlee
My Lords, surely the choice between prison and detention—in other words, “soldier on”—is a purely military one, which means that the officers on the panel are best placed to make that judgment of whether they can keep the serviceman in. In fact, some who go off for a period of detention turn out to be very good servicemen later on, as I am sure the noble Lord recognises. This is a purely military decision.
Lord Thomas of Gresford
I am not suggesting that the judge advocate should act entirely without the advice given to him by the panel. But where should the responsibility lie? That is the issue. I do not think that responsibility for sentencing—a highly complex and professional job for which people train for years, first as barristers or solicitors and then as judges—should be in the hands of people who have in all probability never been in a criminal court in their lives. Suddenly, they are faced with a particular problem and may have all sorts of views about it. Nor should it be thought that intellect and intelligence rest only with the officer class, as the noble Earl suggested. That is not necessarily so. Sitting on issues of fact, a panel composed across ranks would come to a better and safer conclusion which is more acceptable to the public. We cannot go on having demonstrations outside this House by present and retired members of the Armed Forces against the verdicts and findings of courts martial. You do not see that happening with Crown Courts but you see it with courts martial, and that cannot continue. I am concerned about the reputational damage to the services that such scenes show.
I will read all the detail of the Minister’s speech and come back to him about it but one or two points arose. For example, he stressed that a simple majority means that there is no need for a retrial. That may not be a very good thing. It may be that if a significant proportion of a panel hearing a case are not satisfied with the guilt of the defendant, there should be a retrial. The case should be put before the court and heard again. Retrials happen, not all that often, when juries are unable to reach a verdict in the Crown Court. They do not follow as of law; it is a question of the discretion of the prosecutor. I have stopped prosecutions after a jury had disagreed. “There is no need for a retrial” is not a mantra which sits very well with the Ministry of Defence.
“Restrictions on trial by Courts Martial
(1) Section 50 of the Armed Forces Act 2006 (jurisdiction of the Court Martial) is amended as follows.(2) In subsection (1) at end insert “save for—(a) murder;(b) manslaughter;(c) any offence under the Sexual Offences Act 2003;(d) any offence where the courts of any part of the United Kingdom have extra-territorial jurisdiction to try, determine or punish that offence committed abroad.””
Lord Thomas of Gresford
In moving this amendment, I will couple it with consideration of Amendments 15 and 16.
Perhaps I may go first to Amendment 15, which seeks to extend extraterritorial jurisdiction in sexual offences. Since 2006, the problem concerning sexual offences has come very much more to the fore in this country and elsewhere. Some 18 months ago, I gave evidence to a committee set up by the Department of Defense in Washington where precisely this issue was being considered. My purpose there was to outline the system of court martial in this country, specifically in dealing with sexual offences. I and the Director of Service Prosecutions, and one or two other experts in the field, gave evidence about the British system. The following day, no fewer than 24 generals and above—I am not quite sure what the term is—were giving evidence to that committee. They were headed by the chief of the general staff of the United States. Unsurprisingly, the committee came out in favour of the generals and not in favour of the British system of court martial.
Sexual offences are a matter where there is not, at the moment, extraterritorial jurisdiction. Amendment 15 has been tabled simply to give to the ordinary courts in this country—the Crown Courts—the jurisdiction, if my Amendment 4 were accepted, to deal with sexual offences in this country. It has no other purpose, so the important amendment is Amendment 4.
Prior to the 2006 Act, courts martial in this country had no jurisdiction to try cases of murder or manslaughter within the United Kingdom. Courts martial could try such cases if they were sitting abroad but not in this country. One of the amendments to the system made in 2006 was to give courts martial sitting in this country jurisdiction over murder and manslaughter.
The four types of offences that I have set out in subsection (2) of the new clause proposed in Amendment 4 are the most serious in the calendar. Murder and manslaughter are obvious. The offences under the Sexual Offences Act to which I have referred—I quoted specific clauses from the Sexual Offences Act 2003—are given extraterritorial jurisdiction by my Amendment 15 so that they can come before the courts of this country under Amendment 4.
Subsection (2)(d) of the proposed new clause deals with war crimes—torture and matters of that sort—where there is existing extraterritorial jurisdiction. I have been involved in a number of murder cases that have occurred abroad, in Iraq and Germany, and to my mind they have been unsatisfactory. I do not quibble with the results but I find it unsatisfactory that those trials should be by court martial. We are dealing with the most serious of cases—those that cause the greatest problems for the public—where public perception is either, if a person is acquitted, that he would be acquitted by fellow members of the armed services or, if he is convicted, that the officers have convicted him for murder whereas a British jury would not have done so. That is the thrust of the campaign about Sergeant Blackman, but there have been other cases where similar feelings have been expressed by the public.
I think that we have come to the end of trying these cases by courts martial. If a murder happens abroad—in Afghanistan, Iraq or Germany—the case is brought back to this country. Cases have not been brought back from Germany because we have been in Germany but we are retreating from there. Our Armed Forces are pulling back in November, so we can forget about that. The case of Martin, to which I referred at Second Reading, is a case in point. The 17 year-old son of a soldier—not a soldier but the son of a soldier—was brought back to this country, kept in Colchester prison and returned to be tried for murder in Germany by a court martial. Although the House of Lords Judicial Committee could not interfere as an abuse of process, as I said in my Second Reading speech, the European Court of Human Rights said that the trial was not fair. We cannot have that.
Let me go back a little. Courts martial abroad could try cases of murder and manslaughter because of the difficulty of travel. Back in the 19th century, if troops were deployed abroad, it would be quite impossible to hold somebody for trial by the civil courts here until such time as the forces returned to this country. Consequently, courts martial were necessary for trying murder and manslaughter abroad rather than having local courts do it, where the ability of the defendant to understand what was going on—never mind the quality of the justice proffered—was always an issue. That is not the case now. The practice is to bring them home and to try people accused in Iraq of murder, as in the case of Baha Mousa, which was tried in Bulford, or the case of the paratroopers who were tried at Colchester, or the Bread Basket case, which was tried in this country. The practice in serious cases is to bring people back. Where we are dealing with sexual offences, which are extremely delicate and difficult, and today attract sentences of up to 35 years, those too should be in the ordinary civil courts of this country before an ordinary jury.
I do not accept that an ordinary jury trying a military case is incapable of understanding the ethos, aura or context in which a particular offence has been committed. Juries every day may be trying a person for murder in a context with which they are completely unfamiliar. Whether it is an incident in the back streets of Birmingham or a fraud involving the City, juries cope. It is the duty of the prosecution in the case so to clarify the issues and the context that a jury is fully aware of the significance of the evidence that is put before it.
Things have changed. Juries can be really quite different. Not so long ago in Southwark Crown Court, for example, it turned out that a member of the jury was the sister of a High Court judge and of a Member of this House, and her father had been a Home Secretary. We did not know this; it just slipped out at the end of the case. Juries are an amazing cross-section of people who represent people and who each contribute to the decision that is taken. I have every confidence in Crown Court juries. Serious cases should be brought back and tried here. That is the purpose of my amendments.
However, Amendment 16 is different, as it is an alternative. If my submissions to the Committee are not acceptable to the Government, they ought to consider my Amendment 16 as an alternative. This is where a person who is alleged to have committed a service offence when on active service in operational circumstances can elect to be tried in the ordinary courts of this country. What is the purpose of that? The main purpose—really the only purpose—is that people and the media cannot criticise a Crown Court jury or, if the person has decided that he wishes to be tried by court martial but has been given the chance of a trial by the Crown Court, the system cannot be criticised for failing that individual and giving him the justice that he seeks. Amendment 16 contains an alternative approach that an accused person could elect to be tried in a civilian court. That would remove much of the sting of the criticism, which, as the Committee has heard, is my concern.
Lord Hope of Craighead (CB)
My Lords, I would add a word to what the noble Lord, Lord Thomas of Gresford, has said, mainly because he mentioned my name at Second Reading. I am afraid that this is one of two judgments for which I was responsible. He has been kind enough to say that this judgment is not subject to criticism on the grounds on which it was made. He summarised it quite accurately as the case of a civilian, a 17 year-old boy in Germany who was, I think, the son of a serviceman, and because of that was subject to military discipline in Germany. The noble Lord has narrated exactly the circumstances whereby the civilian spent time in Colchester. I think that he was sent back for trial by court martial in Germany.
My point—and the Minister may already have this in mind—is that one is dealing with a crime committed in another country. In the case of Germany, there is a very active and much-respected criminal justice system. The Germans might well have wanted to assert themselves, as this was a crime committed on their territory. However, under arrangements which we had in place, it was possible for us to say that this was a military matter which could be dealt with under our court martial system. The Germans were prepared to concede jurisdiction to the system which we had under military law.
I suspect that the situation is quite different in Iraq. I do not know what the criminal justice system is like there, but I have no doubt that we would insist that we bring people home. We do not have the same problem of maintaining a diplomatic dialogue there, which we certainly would have with the Germans if this amendment were to be carried. We must be rather cautious with this amendment in considering the various jurisdictions in which offences may be committed abroad. We would need be absolutely sure that these jurisdictions were prepared to concede jurisdiction to us under the extraterritorial system, when they could perfectly well assert their own right to try a case before their own civilian courts.
I dare say that the Minister has this carefully in mind but it seemed, recalling as best I can the circumstances of Martin, that that was part of the background. Of course I cannot take anything away from or add anything to the judgment which I wrote, but I think that it is proper to say that when I first saw the case I was taken aback by the fact that this boy was going to be tried by a court martial. It seemed to be a rather extraordinary thing to happen. However, having studied the legislation and been informed about the background, in the end I was satisfied that it was proper that the court martial should be allowed to proceed. There is this additional element to the issue, which I do not think that the noble Lord touched on in his address but which I respectfully suggest we should bear in mind in considering whether the line that he is urging us to take is a sound one.
Lord Thomas of Gresford
Does the noble and learned Lord agree that Martin could have been tried in this country and that it was not just an arrangement between the German authorities and the British military authorities that caused his trial to be in Germany? I think that it was a decision of the Attorney-General.
Lord Hope of Craighead
Of course we had extraterritorial jurisdiction, but the fact that the crime was committed in Germany was an important factor in deciding the proper course for bringing the case before a tribunal to try the boy for the offence. One has to be careful about the local jurisdiction; I seek to emphasise that point.
Lord Thomas of Gresford
I am most grateful again to the Minister for his careful outline of the Government’s position. I shall take up one point about the right to elect. At the moment, as I recollect, a serving soldier has the right to opt for trial by court martial as opposed to being dealt with by his CO—I have some support from my rear on that proposition—so the concept of opting for one mode of trial rather than another is already in the service discipline system.
The Minister referred to the limited scope of Amendment 16. It is confined—I checked the wording myself a moment ago—to,
“a person subject to service law”,
committing an offence or alleged to have done so,
“when on active service in operational circumstances”.
It would not cover the situation of a soldier who committed an offence who was not in such circumstances. For example, I do not think that that description would apply to anyone who is currently serving in Germany.
Having mentioned Germany, I refer to the contribution of the noble and learned Lord, Lord Hope, to say that yes, there have been agreements on jurisdiction where the Army is abroad, but they are coming back. The situation is quite different. We will not have all the substrata of support and so on in Germany that we have now. I imagine that these agreements will come to an end—is it November of this year when the forces are returning from Germany?—so I suggest that is not a point against the proposition that I am putting forward. So far as the other matters are concerned, they again require me to read what the Minister has said and before I do that, I beg leave to withdraw the amendment.
Baroness Jolly (LD)
My Lords, my first point was going to be the one that the noble Baroness, Lady Gould of Potternewton, has just made. It is not helpful to compare with other sectors. All our Armed Forces pretty much live cheek by jowl with each other. That is not the case elsewhere: if you work in a bank, you go home at five and come back in at nine. It might tell you something but it is not hugely helpful.
I am happy to support Amendments 5 and 6. There are absolutely no circumstances where either rape or sexual assault are acceptable—we have heard talk today about many high-profile cases that are now in the public domain so I shall not go any further there—and we know that at the very highest level the service chiefs would agree with that statement. Last summer the MoD launched the “Don’t Kid Yourself” campaign, so there is acknowledgement and awareness. However, the real commitment at the top has to be to changing attitudes as well as behaviour, which will take time. It takes evidence to check progress and offer confidence.
The point was made that it is not only women who can be victims, and there is possibly a different reaction to men who have been the victims of sexual assault or rape from the reaction to women in the same circumstances. In the service environment, men might feel shame in a slightly different way from the way that women might feel it, and that needs to be factored in as well. A parent would need reassurance that their son or daughter was joining an organisation committed to the eradication of sex offences. Recruits and serving members of the Armed Forces need that reassurance too.
I turn to Amendment 6. To make all feel confident—and I think this amendment is about confidence—there should be no discretion for a CO to refer this to the relevant police force. They should not handle it themselves. Sexual assault is a crime, as is rape, and if there is any doubt it is far better for this to be investigated by the police, who have the experience, rather than a CO, who does not. It has been said to me that COs have been sent on training to do this. I wonder, were I or noble Lords’ sons or daughters to be raped, would we want the case to be investigated by someone who had done some training a year or so before but had not seen a case in the intervening time? We need someone investigating these cases who has not only training but experience and sensitivity. These are very sensitive issues, and the noble Earl, Lord Attlee, made that point as he was explaining his personal experience.
To keep records and publish statistics annually on these cases would enable the Government, the public and members of the Armed Forces to measure progress. It would not be just another task to do; it would enable us to measure progress and to highlight any areas of concern. The Minister in the other place, Mark Lancaster, said during the passage of the Bill:
“I am determined to make the data that we publish robust, consistent and accessible. To that end, I am actively considering how best to publish the data as an official statistic”.—[Official Report, Commons, 16/12/15; col. 1623.]
Has the Minister’s honourable friend finished his considerations yet? What format might he use?
Lord Thomas of Gresford
My Lords, I am moved to join in this debate by the recitation by the noble Baroness, Lady Gould, of the figures for the past few years, which amount to hundreds. I should tell the Committee that in the investigation I was involved with in Washington in America, to the best of my recollection it was estimated that 32,000 sexual offences were committed in the United States armed forces, regarding which there were 5,000 complaints and prosecutions brought in the hundreds, with convictions a lower figure. It was a matter of very high political concern. There is a campaign regarding this by Senator Gillibrand, the junior senator for New York, assisted by Mr Ted Cruz, who has achieved some notoriety lately. So there are a Democrat and an ultra-right-winger and others all involved in dealing with this dreadful problem that they are facing. The issue really is the role of the CO in sexual offences, the very issue that Amendment 6 raises. I strongly urge it upon the Minister that sexual offences should be taken out of the purview of the CO altogether.
Earl Howe
My Lords, I understand the concerns which underlie these amendments. However, the case that I shall put to the Committee will show that I am not convinced that it is necessary or appropriate to make changes. The first amendment in this group would create a legal obligation to publish data about allegations of sexual offences. It would impose an obligation which, it is worth saying, is not currently imposed on other civilian authorities, although they do publish such information on a regular basis.
It may be helpful if I briefly set out the existing arrangements within the service justice system for the collection and publication of crime statistics. The Service Police Crime Bureau records, for all three services, allegations of rape and sexual assault that are made to the service police. That information is released regularly in response to Parliamentary Questions and freedom of information requests. In the case of the latter, the information is uploaded to the MoD’s online publication scheme where it can be freely accessed. Noble Lords have said that they do not regard that in itself as sufficient, but let me continue as there is more to say on this.
The noble Baroness, Lady Gould, said that the system of recording offences needs to be made more robust. In an effort to improve our recording of crime, the Service Police Crime Bureau has been liaising with the Home Office police forces to analyse their crime-recording practices and rules. I am pleased to say that, as a result, the bureau is to establish a post of crime registrar, similar to that found in Home Office police forces, with a remit to scrutinise and audit the recording of crimes on the service police investigation management system. That will undoubtedly improve the accuracy and consistency of the information and, in due course, lead to the production of useful management information about patterns and trends. I very much agree with the argument that it is highly desirable to have an accurate picture of the extent of sexual offending.
My noble friend Lord Attlee asked whether the service police are recording every case referred to them. I will reflect on that issue but, in doing so, I suggest that we need to bear in mind that an unproven complaint should not blight a person’s career. This is a very sensitive issue and it is one on which I suggest that we must be very careful.
Lord Empey
Does the noble Earl agree that we in the UK have a reasonably well documented example of that? Among members of the Royal Ulster Constabulary, who were effectively in a combat situation both in work and at home for many years, after the Troubles there was a substantial rise in the number of mental health issues that were presented. I am sure that the department would have those statistics available, and there might be some interesting things there.
Lord Thomas of Gresford
My Lords, I would like to say something about attitudes towards mental health. I remember in the 1970s appearing on behalf of a person who had been blown up rescuing a pilot from a plane in the Western Desert during the war some 30 years before. It was extremely difficult in those days to persuade the ministry—the War Department, I think it was—that he was entitled to a war pension. We succeeded in the Divisional Court, but in the next election when I was a candidate he stood up and told the people there that if they voted for anyone, it should not be that Liberal candidate as he had problems.
Lord Craig of Radley (CB)
My Lords, I support the thrust of this probing amendment. Clearly there are enormous differences between trying to deal with people who are still in the services and may be suffering from mental illness and those who have become veterans and, maybe many years later, develop or show symptoms of mental illness. How does that get related to their time in service? There are a number of other practical points that I think have been very well made. I would like to put on the record that I am for this in principle but I can see that there are many difficulties. No doubt the Minister will have a chance to tell us about them.
Lord Thomas of Gresford
Before he finishes, may I ask the noble Lord about claims against the Armed Forces? For example, Iraqi claims have been brought forward that rely, to some extent, on the Human Rights Act. What is the impact of his amendment on that?
Lord Mackay of Clashfern
This applies only to the injury or death of those serving in the military on behalf of the British Crown. As the noble Lord, Lord Campbell, pointed out to me just before we came in, operations nowadays may not be on behalf of only the British Crown. They may be carried out, for example, in combination with the Americans, the French or some other nation. That is a further complication which did not arise in the case of Smith. The same principles could possibly apply in that situation. However, it does not deal at all with actions against, for example, Iraqis or any other people among whom our Armed Forces might be serving. The jurisdiction applies, in this particular case, to the injury or death of those serving. There would be implications of other kinds, not dealt with in Smith, so far as people who are not members of the Armed Forces are affected by actions of the Armed Forces.
Lord Thomas of Gresford
I would be grateful if I could speak first because the noble and learned Lord might wish to comment on what I say. I do not think the issue is the liability of the military commander in the field directing operations. As I recall, the cases were about the provision of equipment which would have prevented the firing of one tank upon another—the “friendly fire” that caused the injuries—and, in the other, the use of Snatch Land Rovers in a situation where it was unsafe to use vehicles of that type. The Ministry of Defence, which really must promote something like this, should not get away with the provision of inadequate equipment of one sort or another. You would not expect a soldier to go into action in Arctic conditions wearing a tropical uniform that had been provided to him. It is a question of procurement, not of the decisions that are taken in the field.
I seem to recall the noble Lord, Lord West, saying at Second Reading that when you are in the field you have to get on with it and do what you can with what you have got. The fact that you have to do so does not mean to say that those who have provided you with inadequate equipment—who fail to give a steel helmet to a Tommy in the trenches, for example—should escape all liability or blame for what occurs by amendments to the Human Rights Act in this way.
Lord Hope of Craighead
I am very grateful to the noble Lord. One cannot invent cases. The trouble with the courts is that you simply have to take what you are given. That is the real problem, which I think the noble Lord correctly identified.
Lord Thomas of Gresford
I was going to put this question to the noble and learned Lord, Lord Hope, but does the noble and learned Lord, Lord Brown, consider that a way forward might be to attempt legislatively to put the boundaries of combat immunity forward?
Lord Brown of Eaton-under-Heywood
I am glad to have been asked that question because it gives me the opportunity of saying this. Combat immunity is not of relevance here in respect of the convention claims. It is highly relevant, and was the answer sought to be advanced by the ministry, to the negligence claims. What was held, as my noble and learned friend said, by not four but five members of the court was that it did not extend to the peacekeeping mission that was relevant to the negligence claims.
I would not deal with the negligence part of the claims by extending the scope of combat immunity. I would deal with those parts, as I said at Second Reading, by legislating under Section 2(2) of the Crown Proceedings (Armed Forces) Act which enables one, in effect, to disapply tort law in respect of our Armed Forces. However, I would give them the compensation that the noble Lord, Lord Tunnicliffe, is understandably intent that they should have by making sure that they do not lose out by getting less under the pension scheme than they would if there were successful common law claims. I would give them the money on a no-fault liability basis because they have incurred these ghastly injuries serving the national interest in combat abroad.
However, I regard that as having nothing whatever to do with the limited scope of this amendment, which is simply to disapply the relevant part of the convention to that aspect of these claims. It would disapply Articles 2 and 3 so that, if necessary, it could be tested in Strasbourg whether the majority in the court in Smith needed to go as far as they did in saying that Article 2 applied. As the noble and learned Lord, Lord Mackay, said, I believe that the court would say that the margin of appreciation here allows us not to apply Articles 2 and 3 in this sensitive situation where Armed Forces are serving in combat abroad.