Overseas Operations (Service Personnel and Veterans) Bill (Fourth sitting)

Stephen Morgan Excerpts

Committee stage & Committee Debate: 4th sitting: House of Commons
Thursday 8th October 2020 Public Bill Committees

[Johnny Mercer]

Q Why do you think the MOD has not taken on your advice?

Judge Blackett: I think in terms of the six-month time limit, there were lawyers in the MOD who said that we did not put that in the Armed Forces Act 2006. There are commanding officers who do not want to be limited, because sometimes they need more time. In terms of better case management, I think that the MOD thinks that is a good idea, but I did not come to it until quite late in my time.

I will say one thing, though. In terms of IHAT and Northmoor, as the Judge Advocate General I wanted to be more involved, but I was kept out—properly, I suppose, because I might have to try the cases in the end. We expected a lot of cases to come out of those two matters, and as you know, not a single case came out of them, which tells its own story.

[Stephen Morgan (Portsmouth South) (Lab)]

Q Thank you, Judge Blackett, for being so willing to come before the Committee to hear our concerns and to help us improve the Bill. You described the Bill as ill conceived. Can you explain why you had that view?

Judge Blackett: Yes. Perhaps I can say this. I wondered why, in the face of all the opposition—there is huge opposition, from various bodies—the Government seemed intent to pursue this particular issue. I have three concerns about the Bill. One is the presumption against prosecution, one is the wording in clause 3(2)(a), and the other is the requirement for Attorney General consent.

I listened very carefully to what Johnny Mercer said to the Joint Committee on Human Rights a couple of days ago. He described a pathway that goes from civil claims for compensation. That becomes allegations of criminal behaviour. That leads to investigation. That leads to re-investigation. I think that is the pathway you described, Mr Mercer. He said the lock was a presumption against prosecution, and Attorney General consent. I can understand, looking back, how you might get to that, but I think that logic is flawed, because actually he agreed that the issue of concern is investigations, which is my concern as well, and the length of time they take. He accepted, as he would, that all allegations must be investigated. That acceptance and a presumption against prosecution just do not equate, in my terms.

Let us look at some statistics. In my time as JAG, we have had eight trials involving overseas operations, with 27 defendants, of whom 10 were convicted. There were obviously trials. I did the two murder trials. The first murder trial was about the murder of a chap called Nadhem Abdullah by 3 Para. That was a case called Evans. The events took place in 2003; the trial was in 2005. In the case of Blackman, Marine A, the unlawful killing took place in 2011; he and two others were tried in 2013. So the system worked and due process went along. There were eight trials.

At the same time, there were 3,400 allegations in IHAT and 675 allegations in Northmoor. We all know how long they took, and nothing came out of them. So I agree wholeheartedly with what the Minister is trying to do. I am absolutely behind protecting service personnel. I simply do not believe this Bill does it, because I cannot see that a bar on prosecution or—sorry—a presumption against prosecution is going to stop the ambulance chasing that the Government are so worried about.

My second concern, of course, was the International Criminal Court. Take a case like Blackman, for instance, where there was a video of him shooting somebody. Had that come to light over five years later and there was a presumption against prosecution, first of all, the investigation would have taken place. The prosecutor could have said, “The presumption exists. Therefore I am not going to prosecute.” That would lead to a victim right of review, perhaps. More importantly, it would lead the International Criminal Court to say, “You are unable or unwilling—article 17 of the Rome statute—to prosecute. Therefore we’ll take this and we’ll put him to The Hague.” That is a real concern of mine.

The prosecutor could decide there is a case to answer, but he would send it to the Attorney General, and the Attorney General says either, “Prosecute”—in which case, so what?—or no, and you have exactly the same thing: judicial review of his decision by all sorts of people, and the International Criminal Court saying, again, “You are unable or unwilling.”

In my view, what this Bill does is exactly the opposite of what it is trying to do. What it is trying to do is to stop ambulance-chasing solicitors and vexatious and unmeritorious claims. The Minister quite rightly said we want rigour and integrity. What it actually does is increase the risk of service personnel appearing before the International Criminal Court. That is why I said it was ill conceived.

[Stephen Morgan]

Q Thank you for that thorough and comprehensive answer. You mentioned earlier being kept out of discussions. One theme that has come out from the witnesses over the last few days has been about more engagement and consultation on what the Bill is trying to do and its contents. Is it unusual for someone in your position not to be formally consulted on the Bill’s contents?

Judge Blackett: No. My office is nearly always consulted on legislation, particularly when I went through the 2006 Act. I was heavily involved in that and, subsequently, with the other quinquennial reviews. I do not understand why my office was not consulted. There have been occasions in the past where paperwork has got lost when we have been consulted. I personally was not, but my office dealt with it. That was not the case here—we simply were not consulted.

[Stephen Morgan]

Q So it was quite unusual?

Judge Blackett: It was unusual. Whether it was pressure of time or whether officials wondered what I was going to say and did not want to hear it, I do not know.

[Stephen Morgan]

Q What difference would that formal consultation have made?

Judge Blackett: I would have hoped that we could have influenced the Bill, because I think a Bill is a good idea, but it has to have the right contents. Had I been able to have an input, perhaps on the format as I have just described, I do not know whether it would all have made it into the Bill, but at least it could have been discussed.

[Stuart Anderson]

Q On a point of clarification, you said it is very unusual for you not to be consulted, but you started off by saying you were not consulted on any of the other investigations when they were set up. Is that correct?

Judge Blackett: That is a different matter. That is apples and pears. I am consulted on policy development, even though I am an independent judge. In terms of individual cases then clearly—and properly, at the time—I was not consulted. I was going to have to deal with the serious matters that came out of it, so I was not consulted. I was told that there might be a case—“There is possibly a case. Can you clear seven weeks in the diary to sit in a case, sometime in the future?”—but I was not consulted about how the investigations were going on.