Armed Forces Act 2006

Lord Morris of Aberavon Excerpts

Thursday 23rd November 2017 Lords Chamber

Asked by

[Lord Morris of Aberavon]

To ask Her Majesty’s Government whether they have any plans to set up a widely drawn working party, using the expertise of Treasury counsel, into the working of Section 42 of the Armed Forces Act 2006.

[Lord Morris of Aberavon (Lab)]

My Lords, the Minister, the noble Baroness, Lady Goldie, gave your Lordships a most helpful reply to my Question on 23 October on the review of the Armed Forces Act for the next Bill, in 2020, in so far as it deals with serious offences committed by members of the Armed Forces. That is my main concern, not the civilianisation of disciplinary procedures in general. In any event, military prosecutors will ensure the protection of the military interest.

As a young subaltern newly qualified as a barrister—I learned I had passed my exams in the cookhouse of the Royal Welch Fusiliers in Wrexham—and totally without experience, I was in some demand in courts martial when I served in Germany. After that, despite 50 years at the criminal Bar, I took no interest, or, more importantly, my clerk took no interest, in court martial work. As Attorney General, I believe I signed a protocol with defence and many other agencies to confirm the supervisory role of the law officers. I was never, in fact, troubled. A further protocol was signed by the noble Lord, Lord Robathan, as he is now, and others in 2011 confirming the overriding principle of “fair and efficient justice” for persons subject to service law.

I surmise that for offences other than serious ones the present system may work reasonably well in the delivery of those aims. It is the recent case of Sergeant Blackman, heard in the Court Martial Appeal Court with considerable publicity and public interest, that has caused me to take your Lordships’ time tonight. Section 42 of the Armed Forces Act 2006 changed the jurisdiction of courts martial to deal with cases of murder, manslaughter and rape, although the court martial system could already deal with serious cases such as murder if they were committed abroad. It could convict by a majority but sentence to death had to be unanimous.

I believe that the time has come, in the Minister’s words,

“for an independent and more in-depth look at the service justice system so that we can be assured that it is as effective as it can be for the 21st century”.—[Official Report, 23/10/17; col. 766.]

I have looked at the records for 2005 to 2010 and there appear to have been seven cases of homicide/manslaughter. There were also many more cases of serious assault. It is the handling of the more serious cases that needs scrutiny. The United Kingdom’s most senior military judge is the Judge Advocate-General, a senior civilian lawyer. In 2013 the Judge Advocate-General, His Honour Judge Blackett, said that the rules for military courts looked unfair and could be challenged in future cases.

A court martial comprises a judge advocate, and between three and seven members of the jury, known as the board. They are officers or warrant officers but can include civilians. The membership is hierarchical but I understand that when they vote, the most junior member votes first. Whether seniority in membership plays a part in the discussions, I do not know; I can only guess. The verdict is delivered at the end of the trial. The defendant does not know whether or not it is unanimous. It can be by the thinnest of majorities—three to two is sufficient.

When majority verdicts were introduced in English and Welsh courts, as a mainly defence lawyer, I was troubled initially, but I can say with long experience that a system of a verdict of at least 10 to two when the jury remains 12 in number works. It succeeds in weeding out unreasonable failure to reach a verdict because of the dissent of one or two. However, the directions for reaching a majority verdict as opposed to a unanimous verdict, including an exhortation to strive for unanimity, are set out in statutory detail and are absolutely transparent to the defendant and the public. The voting figures are made known.

I share Judge Blackett’s concern that a defendant can be convicted if only three members of the court martial had voted for a guilty verdict while the other two had supported an acquittal. Three to two is not enough, in my view. Not to reveal the figures is also a matter of concern in this day and age. The House will be interested that the system in New Zealand has changed recently. It has used the England and Wales system as a model, with one difference: it decided that all convictions must be unanimous. I am conscious of the fact that the Court Martial Appeal Court, headed by the then Lord Chief Justice, the noble and learned Lord, Lord Judge, in the case of R v Twaite, held that a majority verdict did not infringe the right to a fair trial or produce an unsafe conviction. It found no reason to conclude that the finding of guilt on the basis of a simple majority was inherently unsafe. I invite the review to consider this judgment and the views of the Judge Advocate-General, and draw from the experience of New Zealand.

Although I respect the court’s judgment, I believe that an in-depth review should consider, first, whether a majority verdict with such a slim majority is appropriate, in the Minister’s words, “for the 21st century”; secondly, whether the fact that the verdict is not unanimous should be made public; thirdly, whether the hierarchical system of board membership is appropriate; and, fourthly, whether the directions for a verdict should be set out, as they are in ordinary criminal law, and also consider the relevance and the working of Rule 26 of the Armed Forces (Court Martial) Rules 2009.

It was put to me recently by a most eminent lawyer that in the most serious cases, we might consider moving to a system more akin to an ordinary trial by jury. This would do away with the hierarchical system of board membership. I had also raised this possibility in my Question on 23 October. I would like to hear what might be the objections to, and particularly the difficulties in, such a system and whether it might apply only to the more serious cases.

I would like the review to consider one other issue: whether a judge advocate, given the figures for the number of homicide cases in recent years, is the best presiding judge for serious cases such as murder or rape. Only the most senior and experienced of circuit judges hear rape cases and they are licensed to do so—likewise with murder cases, I believe. While a High Court judge has in the past sat as a judge advocate in serious or unprecedented cases, I believe consideration of who should preside should be more of a routine issue.

I therefore suggest that the president of the Queen’s Bench Division, who I understand allocates the High Court Bench for the most serious cases in our courts, should be asked to nominate a High Court judge to try such cases where he sees the need. It is the fact of the rarity of such cases which calls into question whether a judge-advocate is the best form of tribunal. I am sure that the in-house lawyers of the Ministry of Defence, which I served many years ago, would benefit from outside advice. I have in mind Treasury counsel, or particularly former Treasury counsel, who have actual experience of handling court-martial cases and serious cases such as murder. Hence my welcome for a widely drawn inquiry to review the working of Section 42 and use the opportunity to consider other aspects of the court-martial system.