Armed Forces Bill

Lord Hope of Craighead Excerpts

Thursday 3rd March 2016 Grand Committee

[Lord Craig of Radley (CB)]

My Lords, this is clearly a probing amendment. It flies in the face of the norm that there is, in general, no time limit on investigating or bringing a charge for alleged criminal behaviour. My reason for tabling such an amendment is to encourage debate and a reasoned response from the Government. I shall not repeat my arguments, given at Second Reading, for bringing this to the Committee now. Noble Lords are well aware of the industrial growth in historical cases of alleged criminal behaviour of service personnel, going back over time not just years but decades. The Bill clearly indicates that it is acceptable for the Armed Forces to be treated differently in legislation where there is a military operational reason for so doing. An amendment on these lines, not necessarily using my precise words, would fit that purpose.

The growth in the number of historical claims now being dealt with by the MoD has been the topic of recent media coverage, which has quoted the irritation of Ministers and even the concern of the Prime Minister. Therefore, I hope to hear not only that the MoD is well aware of the growing problem but that it has specific plans in mind to tackle it. If it is to be by some form of inclusion in the Bill of Rights that we have recently heard about in the Chamber, I urge that it should be in the form of an amendment to the Bill before the Committee today. Better still, as I have already proposed—although I do not do so now with great hope—why not include the relevant part in the Bill before the Committee?

Wherever possible, legislation that applies to the discipline and behaviour of our Armed Forces should be contained in one Act. Not only will this alleviate the problem of potential conflicts between Acts, as has been happening with the Human Rights Act, it will make it easier for the Armed Forces themselves to be aware of and to be dealt with by their own specific legislation. I look forward to the Minister’s response on that point. I hope he will be as forthcoming as possible about the Government’s intentions in this area so that the opportunity to debate and help form acceptable legislation is not missed. This should not be in any way a party matter and I hope the debate will avoid any such approach. The Armed Forces are ultimately responsible to the Government of the day, regardless of which party may be in power. I look forward to the noble Earl’s response. I beg to move.

[Lord Hope of Craighead (CB)]

I just want to make one or two short points. It is interesting that although the noble and gallant Lord is perfectly correct that it is not the practice in the United Kingdom for there to be any statutory limitation on prosecution for crimes other than summary crimes, it is quite commonplace in the civil law countries for there to be limitations. So our allies in France or Germany, for example, would, I suspect, be protected by a limitation of the kind proposed. I am not suggesting that we should adopt that philosophy, which is quite contrary to our practice, as we can see in cases of historical child abuse. I wonder, however, whether the wiser course, rather than going into the area of limitation, which is so difficult and would be seen as an invitation to start doing this for other crimes, would be simply to have a blanket immunity for our servicemen when engaged in military operations, of the kind that I think used to be the case—I stand to be corrected—before the law was changed some years ago by the previous Armed Forces Act. This is certainly an important point to consider, but I favour doing so not by way of limitation but by way of exclusion entirely for acts of that kind while engaged on military operations, while making it quite clear that we are not dealing with cases of one serviceman on another—let us say of one serviceman assaulting another, stealing from him or things like that.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, as I indicated at Second Reading, I, too, am entirely sympathetic to the general feeling underlying this amendment. As the noble and gallant Lord has said, he is not wedded to this language. I am not clear, for example, whether,

“engaged in military operations outside the United Kingdom”,

would include peacekeeping operations in Northern Ireland, or matters of that character. However, I also see the basic difficulty, as my noble and learned friend Lord Hope indicates. This is certainly contrary and alien to English law down the years. We recognise the problems of delay, and if you can show plain and incurable prejudice through delay, you might well get the cases struck out. One would hope for a measure of fastidious thought before anybody launches prosecutions in these cases. It is deeply offensive to people that, in relation to the problems in Northern Ireland, amnesty was given to a whole lot of terrorists, but there is still a risk, apparently, on the part of the soldiers who were acting on our behalf.

I am a bit troubled by my noble and learned friend Lord Hope’s suggestion of a blanket immunity. What happens if there is a clear case of murder on the face of it? Should we really, with ample evidence and so forth, say that there can be no prosecution? I do not know: would Sergeant Blackman have taken the benefit of that? One must have regard to where these things go, but I certainly hope that the Government will give very sympathetic thought to this. A clever and ingenious lawyer might be able to find some formula whereby what I suspect all of us here feel could be reflected in some form of protection for those on active service abroad.

--- Later in debate ---

[Lord Brown of Eaton-under-Heywood]

My Lords, I had not intended to speak to this amendment; I ought to be better prepared. Down the years, I have often been involved with coronial law. Indeed, I was Treasury Counsel in the early 1980s when for the first time it was decided, contrary to my argument, that there could be an inquest in this country in respect of a death abroad. It was the Helen Smith case. She was the nurse who fell from a balcony in Jeddah on to some railings and impaled herself. There was long, fraught litigation in the early 1980s. Since then, this area has developed hugely and has been complicated and clouded by the impact, reverting to where we were earlier in the week, of Article 2 of the European Convention on Human Rights and the need, in certain circumstances, for an Article 2-compliant investigation into a death.

I confess that when I first read the proposed new clause, I rather thought that that essentially is the present law. I shall listen, fascinated, when the Minister tells us exactly what the present position is in terms of inquests in respect of such deaths as are encompassed here. Certainly, I understand that the coroner will be informed in every case. There will always be an inquest, and he will always determine by what means the death occurred. The phrase “and in what circumstances” may be more contentious because this is a very technical area and I seem to recall that that phrase has been the subject of a good deal of specific litigation about exactly what it encompasses.

There is routinely an inquest in these cases. As I understand it—but this is very much anecdotal—the result of our now having and retaining a chief coroner is that these inquests are now heard by a comparatively limited number of coroners and essentially they deal with these matters in a way which is regarded as essentially satisfactory on all sides. That may be a misunderstanding of the position, and I know there was a problem some years ago when coroners were thought to be seeking to investigate way beyond the scope of what ordinarily would be permitted in terms of inquiring into military supply and matters of that sort, but I thought it was now under control. However, I shall say no more. I do not think this is a very useful contribution. I shall listen to what the Minister says.

[Lord Hope of Craighead]

My Lords, there is one aspect of this amendment to which I think I should draw attention. It arises because of its scope. The amendment applies to every violent or unnatural death of every person subject to service law within the United Kingdom. The coronial system does not apply in Scotland. I do not know whether it is the intention that we should extend the coronial system to Scotland in the case of every violent or unnatural death, but the system which applies in Scotland is very simply this: every death of that kind is reported to the procurator fiscal of the area in which the event occurred. There is then an exercise of discretion because it does not follow that every death is subject to an inquiry. It is a matter for the procurator fiscal, possibly with the advice of a law officer or his counsel, to decide whether it is in the public interest that there should be an inquiry. If there is such an inquiry, it goes not to a coroner but to a sheriff, who does indeed determine by what means and in what circumstances the death occurred. It is there that the public interest is served because if there is something to learn from the event, the opportunity is taken through the accident inquiry to determine the circumstances and in some way to improve practice or inform the public about how events of that kind could be avoided in future.

As I listened to the debate I wondered whether that system applied in the case of persons subject to service law. I think I am right in saying that when one reflects on the tragic events on the Mull of Kintyre, when a Chinook helicopter flying from Northern Ireland to Scotland with a number of very senior people on board crashed and everybody was killed, that event was dealt with under the Scottish procedure. I would have thought that that procedure is perfectly adequate to cope with all that one would expect from events of this kind and the need for the circumstances to be inquired into.

There are two features that need to be stressed. First, not every death of this kind is the subject of an inquiry because it is only if the public interest requires it. On the other hand, where the inquiry is resorted to, it is a full inquiry, with the results that I think the noble Lord, Lord Thomas of Gresford, is looking for; that is, the lessons to be learned from the evidence that is laid. I wonder whether he really does intend that every death—even a road accident, for example—occurring north of the border should be subject to this system; or, to take another example, whether training exercises in the Highlands, where unfortunately deaths do occur due to the very severe weather on mountains, should be subject to the coronial system. I think the Scottish prosecutors—the procurators fiscal, I should say—would rather that they retained control of these events and dealt with them under the Scottish procedure, which they would believe is perfectly adequate to provide the lessons that people need to avoid these events occurring again.

[Lord Thomas of Gresford]

My Lords, there were specific provisions in the Coroners Act 2009 relating to investigations in Scotland. Sections 12 and 13 provided that the Secretary of State would notify the Lord Advocate if,

“the Chief Coroner thinks that it may be appropriate for the circumstances of the death to be investigated”,

and there would be an inquiry under the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976. I think that is the position.