Armed Forces Bill

Lord Thomas of Gresford Excerpts

2nd reading
Tuesday 7th September 2021 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, I associate these Benches with the tributes paid by the Minister and the noble Lord, Lord Coaker, to the expertise and professionalism of the British forces in the recent withdrawal from Afghanistan.

In February 1997, Lance-Sergeant Alexander Findlay of the Scots Guards, a veteran of the Falklands campaign and the Battle of Mount Tumbledown, successfully appealed to the European Court of Human Rights against his conviction for assault. Suffering from PTSD, he had held members of his own unit at pistol point and threatened to kill himself and them. The court held that the constitution of courts martial in the UK was such that they were not an independent and impartial tribunal, as required by Article 6.1 of the European Convention on Human Rights. The march to reform the system had begun. I declare my personal interest as chair of the Association of Military Court Advocates.

This Bill means that we have nearly reached the conclusion of that march. I pay tribute to the excellent review of His Honour Judge Lyons, who comprehensively covered the ground and made recommendations on the composition of the panel that tries these cases, including on numbers, on the need for more than a simple majority to convict and on the extension of membership to chief petty officers and their equivalent. He also proposed that a board need not be of single service composition in general discipline matters. I raised all these issues as amendments to the then Armed Forces Bills of 2006, 2011 and 2016, in step with the evidence given to the Commons committees by the highly experienced former Judge Advocate-General Jeff Blackett. Something once bitterly opposed by the Ministry of Defence, under Governments of every stripe, is now seen as uncontroversial and commonplace; I am grateful to the Government for that and to the noble Baroness, Lady Goldie, for the way in which she opened this case and has been open to discussion and consideration of these proposals.

The one recommendation of Judge Lyons that the Government rejected is that 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 judge thought it important enough to make it his first recommendation. In 2006, I moved an amendment to negative this novel extension of jurisdiction, introduced in the then Bill. My excuse for quoting myself is that my remarks were quoted in Judge Lyons’s review. I said:

“The purpose of my amendments is to maintain the present position. The present position traditionally has been that if a serious offence of treason, murder, manslaughter or rape is committed in the United Kingdom, as opposed to abroad, by a soldier or serviceman or a civilian subject to service discipline, those offences cannot be tried by way of court martial but can be tried only in the Crown Court”—


that is if the offences are committed in the United Kingdom. I continued:

“That is the position today. For some reason, which has not been adequately explained, although I have pressed the matter both in Committee and on Report, the Government think that it is right to extend the jurisdiction of the court martial court to encompass any criminal offence.”—[Official Report, 6/11/06, cols. 599-600.]


I lost the Division by 63 largely Liberal Democrat votes to 165 Labour votes. The Conservatives abstained.

What, then, is the reason given by this Government to reject Judge Lyons’s primary recommendation to restore the pre-2006 position: that cases should normally be heard in the civilian courts, as they always used to be? If a really exceptional case arose, an application could be made to the Attorney-General to transfer it to the court martial system; I suggest the possibility that a manslaughter case involving the failure of equipment or the exigencies of training might be such a case. I had a look at the justification given by Mr Leo Docherty in the other place in answer to the Labour amendment. He suggested:

“If the AG had to give consent, the process would be slower … there would be no easy way to transfer that case to the civilian system.”—[Official Report, Commons, 13/7/21, col. 251.]


The noble Baroness, Lady Goldie, tried to expand on his explanation by suggesting that it shows confidence in the service system if it can try everything. I do not think that is the right position. I am not aware of any case of a murder committed in the United Kingdom and involving service personnel that has been tried by court martial since 2006.

However, on rape, the Government’s position has been completely undermined by the Defence Sub-Committee’s report Women in the Armed Forces, published on 25 July—barely a month ago—and to which the noble Lord, Lord Coaker, referred. As it happens, the review was chaired by my own Member of Parliament, Sarah Atherton—the only Conservative in recorded history ever to represent the constituency of Wrexham. She said:

“Sexual assault and rape are amongst the most serious offences committed against female service personnel … It is difficult not to be moved by the stories of trauma, both emotional and physical, suffered by women at the hands of their colleagues. A woman raped in the military often then has to live and work with the accused perpetrator, with fears that speaking out would damage her career prospects … From our evidence, it is clear to us that serious sexual offenses should not be tried in the Court Martial system. It cannot be right that conviction rates in military courts are four to six times lower than in civilian courts. Military women are being denied justice.”


To underline those comments, Judge Lyons’s review contains a telling statistic: in 2017, of the 49 charges of rape preferred before a court martial, there were two convictions. This means that up to 47 victims and their families have been failed by the system. What does that do for the recruitment and retention of women soldiers? I leave it to your Lordships’ imagination. It undermines the trust and public confidence on which the whole criminal justice system, whether military or civil, depends.

Here, we have a number of factors coming together. Giving jurisdiction to courts martial to try murder, manslaughter and rape charges for offences committed in the UK was an aberration introduced by the Labour Government in 2006. It is not a hallowed part of service history. The Conservative Party did not support it at the time. In considering this Bill, the Labour Party has called for its removal in the other place. The jurisdiction has not been utilised, save for rape cases in a highly unsatisfactory way. As I said, the Conservative chair of the Defence Sub-Committee, after the investigation, stated:

“Military women are being denied justice.”


She is right. The Government, which cannot give a sensible explanation for its retention, should heed the voices from Wrexham and follow Judge Lyons’s recommendation.

Another issue that remains is that of sentencing. I have argued during the passage of each Bill that sentencing is a complex process resulting in varying disposals. I suggest again to your Lordships that it should be left to a professional judge to determine sentence, not to a panel whose members may well be making such a decision in respect of a defendant for the one and only time in their lives. Whereas they can impose sentences of up to life imprisonment, magistrates with lengthy experience of the judicial system can do no more than pass a sentence of 12 months. It is true that, these days, a judge sits in on and participates in the decision, but he does not have a casting vote.

Of course I pay tribute to our armed services—they are very close to all our hearts in this House—but we must have a justice system that is perfect. We have moved strongly in that direction. My noble friends Lady Smith of Newnham and Lady Brinton will deal with the important aspects relating to the military covenant, while the noble Baroness, Lady Garden, will deal with pensions. I fully support what they will say.