Judicial Review and Courts Bill

Debate between Lord Thomas of Cwmgiedd and Lord Thomas of Gresford

Report stage
Thursday 31st March 2022 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, I do not think that the Government should hide behind the fact that an inquest is inquisitorial in procedure and not adversarial—that is a myth. It is not the case that there are no adversarial proceedings at an inquest. I have been in many inquests for trade unions, insurers and families, and each side tries to put forward a particular view of the facts which may impact considerably on questions of liability arising in civil proceedings later. I have nothing more to say, except that this amendment is limited to public bodies. I wish it was extended to more than public bodies and to any situation where a coroner faces a heavily weaponised side arguing one way and the family on the other. At that point, legal aid should be easily available to those who are disadvantaged.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, as the Minister said a short while ago, this is a very ancient office, but the genius of our system, and of the coronial system, is that it has moved and adapted itself over the centuries. Over the last 20 or so years, inquests have changed beyond all recognition. The amount of money and resource now devoted to them, and what the public expect from them, is enormous. It cannot be right that, where the state is involved and has heavy representation, the bereaved family is not also provided for by the state. The coroner cannot remedy that. It is a myth to say that he can do this through his inquisitorial powers; that is simply not possible when you need expert and other evidence, and trained lawyers. I very much hope that the Government will seriously consider this. It is a very modest amendment and I warmly support it.

Armed Forces Bill

Debate between Lord Thomas of Cwmgiedd and Lord Thomas of Gresford

Report stage
Tuesday 23rd November 2021 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, I am most grateful to the noble and learned Lord, Lord Morris of Aberavon, for his support, and I congratulate him on the attempts that he has made over a long time to civilianise military law. I am pleased that he mentioned Lord Elwyn-Jones, who admitted me to the rank of Queen’s Counsel in the Moses Room rather a long time ago.

The issue in Amendment 2 is: should members of the Armed Forces accused of murder, manslaughter, rape or other sexual offences alleged to have been committed within the United Kingdom be tried by court martial or in ordinary courts? The Mutiny Act 1689, in the reigns of William and Mary, laid down the principle that there should be annual renewals of the Armed Forces Act. The recital to it said:

“No man may be forejudged of life or limb, or subjected … to any kind of punishment … by martial law, or in any other manner than by the judgment of his peers and according to the known and established laws of this realm.”


That is the sentiment that the noble and learned Lord, Lord Morris of Aberavon, has just enunciated, and it is a principle derived from the Magna Carta.

But this recital in the Act contained an exception to that stirring principle. In respect of

“every person being mustered and in pay as an officer or soldier in their Majesty’s service, who excited, caused or joined in any mutiny or sedition in the Army, or deserted their Majesty’s service”,

the punishment was death.

The other means of disciplining service personnel was under the Articles of War, issued under the King’s sign-manual, but only for the purpose of operations abroad, particularly in the colonies, not in the United Kingdom.

The Mutiny Act applied throughout Great Britain and Ireland, so that even in peacetime a soldier mutinying or deserting would be tried and punished under martial law, not civil law, and without the protections offered through civil law procedures.

The great jurist Sir William Blackstone, writing in 1765, was incensed that soldiers should be dealt with by court martial in peacetime and regretted that

“a set of men, whose bravery has so often preserved the liberties of their country, should be reduced to a state of servitude in the midst of a nation of freemen!”

When, in 2006, therefore, the Labour Government introduced into their Armed Forces Act a provision which permitted the trial of service personnel by court martial for serious offences committed in this country—a course which I strongly opposed at the time—they were going against centuries of history. The serviceman was now open to court martial for any offence, including murder, manslaughter and rape, even when committed in the United Kingdom. Importantly, he had lost the right to be tried by an ordinary jury of 12 of his peers and was subject to the verdict and punishment of up to seven officers, arrived at by a simple majority.

That is enough history; we must look at the position now, in 2021. We have before us the strong recommendation of His Honour Judge Lyons in his review. As it happens, his first recommendation is that the court martial jurisdiction should no longer include murder, manslaughter and rape when those offences are committed in the United Kingdom, except with the consent of the Attorney-General. The Defence Sub-committee under Sarah Atherton, Member of Parliament for Wrexham, published its report in July, entitled Protecting Those who Protect Us. That report calls urgently for the implementation of His Honour Judge Lyons’s recommendation.

It is true that, in his recent report, Sir Richard Henriques accepted concurrent jurisdiction, as it is called, but the reason he gives is that there may be cases which occur both abroad and in this country, and consequently a single trial would be preferable. That reason would not have any force in respect of murder cases, where there is universal jurisdiction.

I do not believe that a murder case, for a murder committed in the United Kingdom, has been dealt with by way of court martial since 2006. However, I have been able to trace two cases where charges of manslaughter by negligence occurring in this country were tried in that way, both relating to the Castlemartin range in west Wales. In the most recent case, in 2012, a soldier was killed during a live firing exercise. That case was about the planning, organisation and running of that range and required reconstruction of the scene, with accurate grid references and bearings to establish to the criminal standard the origin of the fatal round. Three were convicted and the officer was sentenced to 18 months’ imprisonment, with the others receiving service punishments. It follows, and I do concede, that there may be cases involving complex military issues where a court martial may be appropriate, but these are very rare—two cases in some 14 years.

In reply to the Minister’s comments in Committee, I said that she had misinterpreted this amendment. I have used the word “normally”, which means what it says: that offences committed in the UK would be tried in the ordinary Crown Courts, or in their equivalents in Scotland and Northern Ireland. That would be part of the protocol of the DSP and the DPP. It would be in only exceptional cases of the nature to which I have referred that the Attorney-General would need to be approached. I am not suggesting that he should be involved in the decision-making process of venue ab initio. Incidentally, there is no bar to the Attorney-General making a decision on venue, just as he or she may do in deciding on the commencement of proceedings. The Minister suggested the contrary in her reply in Committee.

Much more common are cases of rape and sexual offences occurring in this country being tried by court martial. It is obvious from the report of Sarah Atherton’s Defence Sub-Committee that complainants, their families and the public simply do not have confidence in courts martial. We can argue about the figures, but if the level of conviction is so low then this perception will have an effect on recruitment and, more importantly, retention. There are many victims within the armed services who will wish to leave for a civilian life if their complaints are not upheld.

The noble Baroness also repeated the justification advanced in 2006 that public confidence can be maintained in the whole service justice system

“only if the service justice system not only has but can be shown to have the capability to deal with all offending fairly, efficiently and in a manner which respects and upholds the needs of victims.”—[Official Report, 27/10/21; col. GC 166.]

That was the justification in 2006 to give a boost to the status of the partly reformed system of courts martial.

I said at Second Reading that I generally welcome the reforms in this Bill. They nearly conclude the long journey since the Findlay human rights case in 1995 towards founding the service justice system on justice rather than, as it has been historically, on discipline. We have finally buried the Mutiny Act, under which General Braddock in the Seven Years’ War could issue the order of the day:

“Any Soldier who shall desert tho’ he return again will be hanged without mercy.”


This amendment is designed to complete the journey towards justice.

[Lord Thomas of Cwmgiedd (CB)]

There is one brief reason that I would add to what has been so eloquently said by the noble and learned Lord, Lord Morris, and the noble Lord, Lord Thomas of Gresford. We have always tried, and marked the seriousness of, crimes set out in the amendment by trial by jury. Magna Carta conferred on defendants the right to trial by jury. Today, we take account of the interests of the victim of such crimes and they have confidence only in trial by jury, particularly as so many of these cases turn on credibility. On that, the judgment of ordinary men and women, drawn from a jury, is the only way to achieve justice. For those three reasons, we should not deprive people of trial by jury in these cases.

Armed Forces Bill

Debate between Lord Thomas of Cwmgiedd and Lord Thomas of Gresford

Committee stage
Wednesday 27th October 2021 Grand Committee

[Lord Thomas of Gresford (LD)]

My Lords, I thank the Minister for seeing me and my noble friend Lady Smith yesterday, when we had a full and fruitful discussion of these issues. I very much support the thrust of this Bill, in particular, bringing the service justice system up to date and having majority verdicts at the heart of it.

Sentencing is a difficult and technical business. I suspect that I am the only person in this Room who has actually seen the judge in a case in which I was appearing put on a black cap and sentence my client to death. That was in Hong Kong. He was not actually executed but it is a solemn moment. Sentencing in the old days used to follow the verdict but not anymore. In any serious case there is an adjournment for sentencing to enable the judge to consider the sentencing guidelines, the pre-sentence reports, the technicalities which he or she must say in the sentencing remarks, the statements of relatives and the public interest in the whole matter. A balancing exercise is carried out.

Importantly, the guidelines may give the recommended range of the sentence, but the judge has to consider the aggravating and mitigating features of the case, which will increase or decrease the recommended sentence in the sentencing guidelines. If I can give an illustration, because it is apposite for next Saturday when Wales play the All Blacks, in rugby, a referee, with his touch judges or assistant referees and the television match official, will discuss something that might have happened. They talk together and they have the advantage of a replay of an incident from various angles so that they can actually see what happened, which does not happen in a court. But it is the referee who takes the decision, not the people who assist him in his decision.

In the court martial system, it is the panel that takes the decision on the sentence with the judge participating and advising. It is only if the board are equally divided that the judge has the casting vote. To take another example, in the magistrates’ court it is the decision of the magistrates, as advised by the clerk, who may or may not be legally qualified. The judge advocate is not a clerk advising; he is central to a trial. He controls the proceedings. He gives directions to the board and rulings, including dismissing the charges altogether, as happened in the 3 Para case in Colchester in 2005. There is an anomaly as well: if the defendant is a civilian subject to service discipline and thereby liable to court martial, the judge advocate sentences alone.

Of course, the panel could and should advise on any particular military facet of the case, but from my experience it should not be assumed that the members of the panel have any direct front-line operational experience comparable to that of the defendant before them. They might have, but there are many units and many roles in which modern British forces are involved. Very frequently, the officers on a court martial do not have anything like the same experience as the defendant and the pressures he has been under. On the other hand, the judge, who sits regularly as judge advocate in a military court, has considerable experience of the operational conditions from the cases that come before him.

Under the current system, an officer or warrant officer is summoned to be a member of the board, probably with no or limited experience of courts martial, save for the president. He might never have been near a court or a court martial, but he becomes a judge with very considerable powers. He will be given the responsibility of determining sentence in a difficult case. That is a power that has never been given to civilian juries in the history of the common law. But it can be only history which retains this unique power for the board in courts martial. Perhaps it is a throwback to when there were no civilian professional judges, but, as I said in opening in my remarks, we have advanced so far. The civilian judge advocate is so important to the system.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, in the light of the very full observations made by the noble Lord, Lord Thomas of Gresford, I want to add three observations. First, over the years the practice of sentencing has become much more complicated and difficult. From the early 1980s onward, the way in which you sentence in the criminal courts has been the subject of guidance from the Lord Chief Justice and the Court of Appeal Criminal Division. It was then followed by the Sentencing Advisory Panel and the Sentencing Guidelines Council. Now it is contained in very complicated and detailed documents drafted by the Sentencing Council.

--- Later in debate ---

[Lord Thomas of Gresford (LD)]

My Lords, prior to 2006, charges of murder, manslaughter and rape committed in the United Kingdom were tried in the ordinary courts, rather than by court martial, when a person subject to service discipline was involved. At that time, in 2006, the Labour Government gave concurrent jurisdiction to courts martial to try these matters. The Conservatives opposed the change, as did the Liberal Democrats. I suggested at the time that the purpose was merely to bolster the credibility of the new courts martial system, which was being totally reformed.

I am not aware of any murder or manslaughter case involving a person subject to service discipline that has been tried by court martial arising out of incidents in the United Kingdom, but rape and sexual offences are very different. A significant disparity in conviction rates in rape cases where courts martial have been employed was found by the statistics before Judge Lyons: 16% were convicted in a court martial, as opposed to 34% of defendants in the ordinary courts. That is an unacceptable disparity.

It was referred to in Sarah Atherton MP’s Defence Sub-Committee report published in July and entitled Protecting Those Who Protect Us. Paragraph 175 of that report, which is now only three or four months old, says:

“We do not believe that the problems highlighted by the Lyons Review in the handling of sexual offences in the Service Justice System have been fully resolved. While we accept there is a limited set of circumstances where it may be appropriate for the Service Justice System to be used for UK-based sexual offences (for example when there are offences both in the UK and overseas), this must require the Attorney General’s consent. There may be other compelling reasons, such as the young age and vulnerability of the victim, when it is more appropriate for the civilian justice system to hear these cases. In our view, the fact that a UK case may involve a victim and a perpetrator who are both Service personnel is not a sufficient reason for the Service Justice System to be used.”


Sarah Atherton’s report went on to call for the implementation of the very first recommendation of Judge Lyons’s review—he made a large number of recommendations—in which he said:

“It is … recommended that the Court Martial jurisdiction should no longer include murder, manslaughter and rape when these offences are committed in the UK, except when the consent of the Attorney General is given.”


The Atherton report also called for the implementation of the Lyons recommendations to place all domestic violence and child abuse cases in the civil jurisdiction when committed in the UK.

Why is that recommendation from Judge Lyons, repeated by the Defence Sub-Committee chaired by Sarah Atherton, a Conservative Member, resisted? The Government may now feel that reverting to the pre-2006 position may be seen as a vote of no confidence in the court martial system. I do not believe that to be so, and I do not think it a proper justification. In 2006 it was not seen by the Conservative Party to be a sufficient reason to support the Labour amendment of this historical common-law position that service personnel who commit offences in the United Kingdom will be tried in the ordinary courts.

It is a breach of the basic principles that a person subject to service law is still a citizen and that a British citizen has a right to be tried for serious offences by a randomly selected jury of 12 ordinary fellow citizens. That was a point strongly urged by the noble and learned Lord, Lord Thomas of Cwmgiedd, at Second Reading and in the extension of that in his amendment linked to this, which I fully support. I shall leave it to him to explain the purposes of that. I beg to move.

[Lord Thomas of Cwmgiedd (CB)]

I fully support the noble Lord, Lord Thomas of Gresford, on the first of these amendments but, before explaining my reasons, my primary purpose in tabling these amendments is to try to ensure the proper morale of Her Majesty’s Armed Forces and the standing in which they are held by the public. One has to bear in mind always that in the modern criminal justice system, where successive Governments have ensured that the victim or complainant —I will use the words interchangeably—is put at the heart of the system, that is taken fully into account. One can see this so often. For example, recently, the public look at the way in which the police investigate and they will look at the way in which people are tried. Are they being tried fairly and is there a proper balance?

It is important to realise that what I seek is, first, to achieve a much greater degree of certainty in relation to these matters and, secondly, to try to ensure that the Armed Forces are not subjected to yet more complaints about the nature of the justice system. It is evident from the report of Judge Shaun Lyons, a most distinguished Naval Judge Advocate—and a judge who is in charge of a major London criminal court—that there ought to be the change which the noble Lord, Lord Thomas of Gresford, has so carefully gone through. I fully support his amendment but, in view of the difficulties that arise, it is necessary to go a little further.

If I may explain, I want to deal with two issues, one of which, the position of crimes committed overseas, I regret to say the Minister was not happy about last time. However, there is a serious issue and I shall take a moment or two to refer in detail to the law on this subject. The other is in relation to crimes outside the ambit of the proposal to deal with sexual offences, murder and other serious offences.

It is right to begin by recording that, particularly in relation to the most terrible crimes that have occurred, one can go back a very long way. I have seen many of these crimes myself, although the first of them occurred one year after I was born. It concerned the involvement of a battalion of the Scots Guards in an event at a place called Batang Kali during the Malayan emergency. That case was not investigated properly at the time; it is now abundantly clear and there remained a residue, which went right down to the early 2000s, about the way in which it had been approached.

In more recent times, there were the cases involving Baha Mousa and others in Iraq. There was the Blackman case, to which I regret I will have to return, and there were the points raised by one newspaper last Sunday. From what I have seen in each case, regrettably, one has to be sanguine about the fact that such conduct may well occur again. We have to deal with it in a way that is fair and just, while maintaining the morale of the Armed Forces.

We shall turn to looking at investigation when we come to consider the report of Sir Richard Henriques but, on this amendment, we are concerned with jurisdiction. Who has jurisdiction to try a case? Jurisdiction is not like deciding whether you prosecute. It goes to the fundamental position of the court and, over the centuries, it has always been the position that Parliament controls the jurisdiction of the courts. As I mentioned at Second Reading, it is also a fundamental principle that for certain offences there is a right to trial by a jury of 12 people. It is very difficult to see any justification whatever for taking that right away from one of Her Majesty’s citizens. It is fundamental; one has only to read Lord Devlin’s classic work on the jury to realise how core this principle is to our justice system.