Armed Forces (Court Martial) (Amendment) Rules 2024

Monday 20th May 2024 Grand Committee

Considered in Grand Committee

17:44

Moved by

[The Earl of Minto]

That the Grand Committee do consider the Armed Forces (Court Martial) (Amendment) Rules 2024.

[The Minister of State, Ministry of Defence (The Earl of Minto) (Con)]

My Lords, the statutory instrument before us today amends the 2009 court martial rules by introducing a new procedure for the court to view sentences under new Sections 304D and 304E of the Armed Forces Act 2006.

With the leave of the Committee, I will set out the provisions to which the statutory instrument relates. Section 304D enables a person who has been sentenced by the court martial to have their sentenced reviewed to take account of assistance that they have given, or offered to give, to an investigator or prosecutor under an agreement of the Director of Service Prosecutions. A case may be referred for such a review only if the Director of Service Prosecutions believes such a referral to be in the interests of justice. The review in court may reduce the sentence in return for the assistance given or offered.

A person who received a sentence that was fixed by law—for example, a life sentence for murder—may have that sentence reviewed only if they pleaded guilty to the offence for which they received that sentence. A review may further discount a sentence that has already been discounted or reduced if the person sentenced gives or offers to give further assistance. Conversely, Section 304E provides for the sentence of a person to be reviewed if that person received a discounted sentence in return for assistance offered to an investigator or prosecutor and then failed to give that assistance.

If the review in court is satisfied that the person knowingly failed to give the assistance, the provision allows the court to increase the sentence to take account of that failure. However, it can be increased only up to a term not exceeding the level that the court indicated would have been the sentence had there been no agreement to provide assistance. Again, a case may be referred for such a review only if the Director of Service Prosecutions believes such a referral to be in the interests of justice. These provisions closely follow those contained within the Serious Organised Crime and Police Act 2005, which applied to the civilian criminal justice system.

I draw the Committee’s attention to the right of appeal contained in both 304D and 304E, providing for appeals for any decision coming out of a sentence review. This appeal mechanism is available for a person whose sentence has been reviewed as well as the Director of Service Prosecutions who may also appeal against a decision on review. The Armed Forces (Appeal Against Review of Sentence) Regulations 2024, which were laid before Parliament on 13 May and is subject to the negative procedure, regulates Section 304D and 304E appeals.

The statutory instrument is somewhat technical in nature. It inserts a new Part 14A into the 2009 court martial rules to set out the basic court rules governing review of sentence proceedings. It also notes various technical amendments to the general provisions of the court martial rules so that they apply to review of sentence proceedings. For example, Rule 6 of these rules amends Rule 23 of the 2009 rules, so that if the court martial dealing with a review of sentence proceedings decides to substitute the original sentence with a new one, that substituted sentence must form part of the record of proceedings.

As your Lordships will see, the changes are technical, but they are needed to ensure that Sections 304D and 304E work as intended. I beg to move.

[Baroness Buscombe (Con)]

My Lords, I respond to the regulations by saying that I very much support the proposals. I do so having compared the process for court martial with that for discharge from the Royal Navy on medical grounds. The latter is the most inhumane and unfair process that I have ever come across. I ask the Committee’s leave to bear with me for a few moments so that I can put on record why I am unashamedly using this opportunity to speak on court martial to alert the Minister to the truth about the process applied to serving personnel who may not be operating at full capacity in the Navy due to an illness, an illness that was most likely contracted or occurred while in service.

The key point is that a court martial allows serving personnel to be represented and the opportunity to make his or her case to rebut the charges in person. In contrast, the Royal Navy’s employability board acts behind closed doors, even when someone has asked, with detailed reasons and letters of support from others within the Navy and the medics, for his or her case to be reviewed. Instead of an interview with serving personnel in person, in the first instance, the board sends out what it calls a signal, which means an alert for a line manager to call an individual and say, “You’re discharged”. The line manager then informs that individual that they are discharged and because the line manager most probably does not know what the process is because he or she has not been told, he or she unknowingly gives the individual incorrect advice about an appeal process and timing.

No reasons or explanation for the discharge are given at that point, so an individual who wishes to appeal that decision is up against a time limit and cannot know what they are appealing against. Eventually—too late—a letter couched in the most appalling, unpleasant language arrives in the Navy post. It basically writes someone off, even if that individual has skills, experience and capabilities of which we know the Navy is in dire need. The result is that years of training, service, commitment and adaptability are wasted, and an individual who has served his or her country is devastated, on the floor. No one has even bothered to sign that letter.

If the individual asks for their case to be reviewed and submits detailed reasons, again, there is no interview by the employability board and no consideration of a possible transfer to other branches to utilise experience and capabilities, attributes that may be supported by others in the Navy who work with and know the applicant. No reference is made where an individual who has moved heaven and earth to return to 100% fitness, most probably at their own expense, confirms a marked improvement or an expectation of full recovery in the short term. No reasons are given in the event that the review is unsuccessful. Another signal just goes out to the line manager stating “no change”.

Will the Minister therefore take time to meet me so that I can share in more detail this unacceptable and frankly shocking truth? I believe it sends a terrible message, not least to all those who have signed up to the Armed Forces covenant. In a court of law, that message would not stand up to the most basic principles of transparency and fairness, coupled with the accountability of the board.

I close by confirming that no armed forces personnel, serving or veteran, are aware of my decision to make this statement today.

[Lord Thomas of Gresford (LD)]

My Lords, it is a privilege to follow the noble Baroness’s speech. I hope that she has my success in dealing with the Navy. Many years ago, I put down a Question to the noble Lord, Lord Bach, who was then in the Ministry of Defence, about the practice of marching the defendant in a court martial into the court at the point of a cutlass. I thought that that was perhaps not appropriate when there is the presumption of innocence and that it was not appropriate in our day and age. Between putting down the Question and getting the Answer, the ancient custom was abolished for all time.

It is a privilege to be debating with the noble Earl, Lord Minto. I am sure he does not remember this, but we last exchanged words at the gate of his home, Minto House in Scotland. He may remember that I expressed my huge admiration for his ancestor, the first Earl of Minto, who was a very liberal governor-general of India and a wonderful politician for whom I have the greatest respect and about whom I have written a lot. So it is a pleasure to be in the noble Earl’s company again.

I declare an interest as the president of the Association of Military Court Advocates, although I am not speaking on its behalf and the views I express are not the considered view of that association.

As the noble Earl said, this draft SI derives from Sections 304D and 304E, which were inserted into the Armed Forces Act 2006 by the Armed Forces Act 2016. That was eight years ago, not now, so perhaps the Minister can explain why it has taken eight years for the appropriate secondary legislation to be put in place.

Section 304D applies where the review is to consider a reduction of a sentence for co-operation or assistance. Section 304E applies where a person has been given a discount on sentence but has failed to co-operate. In my experience in the Crown Court, the common law position was that, where a convicted person wished to take advantage of any assistance he may have given or was offering to the prosecution, a “text”—it was commonly called that—was prepared by the police or the prosecution and handed to the judge in chambers. This was a secretive procedure, and usually the defendant had to rely upon the good faith of the police or the security services. He did not see the text and the judge did not refer to it in court. Your Lordships will appreciate that giving assistance to the investigating authorities is positively dangerous for a person who has been sentenced and is serving a prison sentence.

This clandestine procedure was given statutory force in the Serious Organised Crime and Police Act 2005, as amended by the Sentencing Act 2020. I note that the Explanatory Memorandum does not refer to the 2020 Act, and I wonder whether it was prepared in 2016, in the light of the Armed Forces Act, prior to the amendments to SOPA.

The civilian provisions in SOPA introduced the possibility of a review of a sentence after it had been passed and while it was being served. They involve a careful series of steps to be taken by prosecutors, and the consideration of a number of factors by the court. To qualify for a review of his sentence, the offender may offer to give King’s evidence, as it is called, in a subsequent trial of his associates, or he may simply provide intelligence of their activities, or both. In most cases, the anonymity of the prisoner is maintained for obvious reasons. Copious and lengthy guidance notes for prosecutors are published by the Crown Prosecution Service, covering a variety of topics, including the criteria for allowing a review, the obtaining of a written agreement, the conduct of interviews, the need to inform the police or other investigating authority of the proposal, the documents to be supplied to the court and so on. My first question is: will the Service Prosecuting Authority or the Director of Service Prosecutions rely on those guidance notes, or will specific Service Prosecuting Authority guidance be published?

18:00

Sections 304D and 304E require that a review of sentence be carried out by the original court martial board “if possible”—that is what they say—but what happens if the original board is not, or members of it are not, available? Can the review be carried out by a judge and a panel who have not heard the original case? Another feature permitted by these draft regulations is that the members of the panel may attend remotely. So they envisage a hearing in which a decision can be made following a Zoom conversation with the defendant attending remotely, presumably also on Zoom.

However, I have a more fundamental objection. This SI provides that the decisions relating to the disputes of fact on the review of sentence should be taken by a simple majority; that is what new Rule 117C in the instrument proposes. Following the Lyons review, which took place after 2016, the Armed Forces Act 2021 introduced qualified majority verdicts into the court martial system. The Act says that the finding of a court martial on a charge must be determined by votes of the members of the court martial other than the judge advocates—that is, the lay members—and, where there are three lay members, there must be a finding with which no fewer than two of them agree. Where there are four of them, three must agree; where there are five, four must agree; and, where there are six, five must agree.

I accept that proposed Rule 117 follows the current rules on sentencing that take place at a court martial trial. The panel can decide sentence after trial on a simple majority. In 2021, I introduced amendments to the then Bill to abolish the powers of board members to be involved in the sentencing process at all. My argument was, and is, that the sentencing process generally has become hugely complicated and detailed but, in effect, the lay members of the court martial are participating as one-off jurors. We do not let jurors determine sentence in the civilian courts. The panel’s members are not used to sitting as judges at all; some of them may never have sat in courts martial before. Unlike magistrates, they have no training for the role of sentences. They are not used to sitting as judges regularly and, in the case of a serious offence, they have no comparators from previous cases, as a judge or a magistrate would. I believe that they cannot possibly understand the implications or be cognisant of the policies that apply to passing sentences in a criminal court.

It is said that the judge advocate sits in on the sentencing process at a court martial and can advise. Indeed, in the guidance notes on sentencing published by the SPA, the panel is actually directed to follow the advice of the judge advocate; in which case they are there merely as ciphers performing no independent role. I await the next Armed Forces Act in 2026, if I survive that long, to take this point up again. I have been in disagreement with the former Judge Advocate-General, the very experienced and respected judge Jeff Blackett—it happens to be his birthday today—but I believe that my point remains a valid one. I think that Judge Blackett is concerned that the sentence should be owned by the military, with the issue of military discipline to the fore, but our Armed Forces are entitled as citizens to be treated neither more nor less harshly than other citizens.

The outside world will be very conscious that the 2021 Act did not follow the recommendations of the Lyons review that rape and other sexual offences should be moved into the civilian system of justice. The Atherton review of 2021 referred to the findings of a five-year study that rape convictions in civilian courts were at a rate of 31%, as opposed to a mere 14% in military courts.

This is a very sensitive area and it requires security. As I said before, the “text” common-law process took place very privately in the judge’s room. However, this SI envisages remote hearings on Zoom, with members presumably conversing over the wire, and a different composition of the courts martial from the hearing itself. There is a lack of safeguards for the defendant, who may well be reluctant to co-operate with the police or investigating authorities as a result. What is more, it can result in an increase of sentence for the offender who secures a review.

My view is that this statutory instrument is not only late—eight years after the Act was passed—but flawed, for the reasons I have stated. I shall make these points in the Chamber when the draft rules come up for approval in the House.

[Baroness Anderson of Stoke-on-Trent (Lab)]

My Lords, I remind the Committee of my entry in the register of interests, specifically my roles with the Royal Navy. I thank the Minister for his comprehensive introduction to this piece of secondary legislation. Subject to what we have heard from the noble Lord, Lord Thomas, this is straightforward and I do not plan to delay the Committee for long. As my friend in the other place, Luke Pollard, made clear, His Majesty’s Opposition do not object to this legislation, but we do have some questions pertaining to the detail and government policy.

The outlined rules are not controversial and Labour Party policy is clear that we would like to see more, not less, criminal activity explored through the civilian courts—not least murder, manslaughter and rape. Given that these amendments bring the service justice system further in line with the criminal justice system, is it not time that MMR committed in the UK by service personnel should be included in the civilian justice system? This is all the more important given recent scandals.

Can the Minister expand on the decision to limit the jurisdiction of these amendments? Why do they not apply to Gibraltar? There is a growing body of Armed Forces legislation that applies to UK personnel everywhere except Gibraltar. Why should offences committed in Gibraltar be treated in a different and out-of-date fashion, not in line with what we now consider to be best practice?

The Minister in the other place, Dr Murrison, was asked to expand on the rationale of the eligibility criteria. He opted not to do so. Can the Minister assure the Committee that consideration will be given to previous service when considering the eligibility criteria? Will relationships built during years of service but not at the time of the alleged offence be considered? This is not in the Explanatory Memorandum. What about the role of sustained joint operations? Will people who serve in a sister unit still be eligible to sit on a relevant court martial?

Broadly, this is a welcome update. I look forward to hearing from the Minister on those points of clarification. Before I finish, I also thank the noble Baroness, Lady Buscombe, for raising the challenges surrounding medical discharge. I am sure the Minister heard her testimony and will seek further details on the circumstances that she raised.

[The Earl of Minto (Con)]

My Lords, I thank noble Lords who have contributed to this debate, in particular my noble friend Lady Buscombe for her unsettling but powerful speech. I am more than happy to meet her and discuss in full detail the points she raised. Given the conversations we have had in the Chamber about forces numbers, recruitment and retention, it is extremely disturbing to hear that this is dealt with, as she said, in an inconsiderate and inhumane way. It is not acceptable and we will take that up.

I will probably catch most of the questions. I do not think I am particularly suited to the issues in law that the noble Lord, Lord Thomas of Gresford, raised, so, if I may, I will write in full detail to him about them.

The question of why it has taken so long has been addressed, but I fully agree that eight years is a very long time to get to this point. There has been activity for some while but there has been a certain amount of toing and froing and the process could have been speeded up. As I said, we are not intending to alter the process; we are just following up the existing one. That is one of the key points.

The noble Lord, Lord Thomas of Gresford, asked how this will work in practice. It is important to note that a review itself is not an appeal against a sentence but an entirely separate process that takes place because new circumstances have arisen. The review process will not be inhibited by the fact that the Court Martial Appeal Court may already have heard or decided against the original sentence or whether the sentence was varied on appeal. Again, it is a separate process. I fully understood the noble Lord’s point about the sensitivity of some of these issues concerning whether these reviews should take place in person rather than virtually, on Zoom. We will certainly consider that.

Although the equivalent measures in the criminal justice system are rarely used, they are still an important feature of the justice system, as noble Lords will agree. There will be cases where the evidence from a witness or offender/defendant could be crucial but fears about self-incrimination might stop an individual coming forward and providing essential information. As with any case, prosecutors need to consider competing public interest issues, which, in these types of cases, include issues relating to the victim of the original offence.

The commencement of these provisions from 2016 is well overdue and, as the noble Lord, Lord Thomas of Gresford, said, this brings a sensible improvement to the service justice framework. I am sure the Committee will appreciate that it is not appropriate for me to speculate on how and when these provisions may be used in the future.

The Armed Forces Act does not extend to Gibraltar, so the statutory instruments made under the Act do not extend there either. The extent is simply the jurisdiction in which Armed Forces legislation forms part of the local law. Gibraltar is referenced as an exception, as Armed Forces legislation extends to all other British Overseas Territories. I do not know—I will find out and write—but I imagine that it is a historical quirk from some point in the past.

Finally, the whole question of MMR is contained within this, and it is an extremely important and valid point. We are trying to align these amendments with what is currently in the civil criminal law.

I hope the Committee will agree that, although these measures are technical, they are necessary to improve the functioning of the military justice system, and I therefore commend this instrument to the Committee.

Motion agreed.