Armed Forces Bill

Lord Thomas of Gresford Excerpts

Report stage
Tuesday 23rd November 2021 Lords Chamber

I believe that every soldier, sailor and airman—and their female counterparts—should have the same rights as civilians to a trial by a jury of 12, with all the statutory protections for majority verdicts, which time has proved work well in ensuring both just and timely verdicts. There is no such provision in court martials. It may well be, as the Minister said, that verdicts of two to one occur in a small number of less serious cases, but they have no place in modern criminal jurisprudence. Neither does a system whereby the most junior member of a court martial is asked to give his verdict first. This is even more important now, given the provisions in Schedule 1 for the constitution of court martials to include other ranks. Every service person should have the same protection for his or her day in court as a civilian counterpart. Our forces are now much closer to those in civilian life than they were and should have the same rights, hallowed and developed over centuries, as civilians have, and it is with pleasure that I support Amendment 2.

[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.

--- Later in debate ---

Moved by

[Lord Thomas of Gresford]

2: Clause 7, page 4, line 27, at end insert—
“(4A) Guidance under subsection (3)(a) must provide that where offences of murder, manslaughter, domestic violence, child abuse, rape or sexual assault with penetration are alleged to have been committed in the United Kingdom, any charges brought against a person subject to service law shall normally be tried in a civilian court unless, by reason of specific naval or military complexity involving the service, the Attorney General consents to trial by court martial.”Member’s explanatory statement
This amendment would ensure the most serious crimes – murder, manslaughter, domestic violence, child abuse, rape and sexual assault with penetration – are tried in civilian courts when committed in the UK unless the Attorney General has specifically consented for such crimes to be tried by court martial by reason of complexity involving the service.

[Lord Thomas of Gresford (LD)]

My Lords, I am most grateful to the noble Baroness for her careful reply, but I feel that I must test the opinion of the House.

--- Later in debate ---

[Lord Robertson of Port Ellen (Lab)]

My Lords, I speak to Amendment 27, in my name and those of other noble Lords, which calls for an independent defence representation unit. The amendment moved by the noble and learned Lord, Lord Thomas of Cwmgiedd, is the principal amendment in this group, but this amendment is important and I am sure the Minister will have been well briefed on the subject. As the noble and learned Lord said rhetorically in Committee:

“I do not understand why we always expect the Armed Forces to have second best.”—[Official Report, 2/11/21; col. GC 295.]


And, in respect of independent representation, I fear that that is precisely what they get at the moment.

In Sir Richard Henriques’ fine report, he points to the fact that there is independent representation in Canada, Australia and South Africa but not for the British Armed Forces. There is talk that the present representation is a mere sticking-plaster solution. In Committee, the Minister said in mitigation of the stance that these proposals would not be accepted that,

“approximately 40 of these recommendations require policy and legal analysis … and I cannot accelerate that at the moment”

and

“we have so far been able to undertake only a light-touch analysis of some of his recommendations.”—[Official Report, 2/11/21, cols. GC 295, 297 and 288.]

I put it to the House that this recommendation is simple, clear cut and very necessary indeed. There is no reason why the Government need postpone further consideration of it. The Minister said in Committee that further consideration will be given when legislative time was allowed, and most of us know that that is usually shorthand for a long time in future. I strongly believe that a defence representation unit is urgent.

In his report, Sir Richard says he has considered the arguments carefully here, and that

“The Unit must be fully independent of the military command and act under the general supervision of the Attorney General. Any guidelines or instructions issued by the Attorney General must be published.”


He also makes the very strong point that

“there should be a significant saving on Legal Aid from the creation of this Unit. … Many of the delays at Court Martial may be avoided by the services supplied by the Unit.”

I do not intend to take up the time of the House this evening as we move through the consideration of this Bill, but I shall also read out paragraph 8.3.10 of Sir Richard’s report:

“Budgeting can only be a speculative process in this sphere. I have no doubt that there will be a saving in Legal Aid expenditure, the cost of Services Legal Aid approximating £1.8 million in the year 2019/2020. The cost of adjourned trials in the Court Martial caused by a lack of, or by delayed representation cannot be assessed. The provision of this facility to Service personnel and veterans should not be dictated by budgetary speculation, but by the moral obligation to provide proper support to those who serve or have served their country.”


His final sentence needs to be emphasised and repeated:

“The knock on the door will carry markedly less menace with the knowledge that competent legal assistance will be readily available.”


For the last couple of years, we have come to know precisely the anxiety and mental cost to serving and former members of the Armed Forces caused by that knock on the door. I therefore suggest to the Minister that Sir Richard Henriques’s recommendation that a defence representation unit be created to provide a triage service to service personnel and veterans under investigation for criminal conduct be a matter of some urgency. I look forward to the Minister saying to us tonight that that will be brought forward.

[Lord Thomas of Gresford (LD)]

There is no doubt that serious crimes are more difficult to investigate in the military than in civilian life due to the exigencies of service. On the other hand, serious crimes occur less often than they do in the territory of every civilian police force. That is why Sir Robert Henriques concluded that

“there should be a senior civilian appointment within the Defence Serious Crime Unit … with experience of major investigations and the ability and necessary experience to control a major incident room.”

He thought that such a number two should have the

“experience and ability to record, retain, manage and process several hundred allegations simultaneously using the most up to date technology.”

I would hope that the noble Baroness could explain, if she resists that particular proposal, that there is some system of training somebody up to the standard Sir Robert Henriques was talking about in his recommendation. How is a person going to get that experience to control a major incident room and carry out the various tasks he is referring to? It is not possible. That is the practical reason why he wanted a civilian as number two.

In recommendation 13 of his report, he said that the candidate would have

“achieved sufficient rank and recognition within civilian policing to act as an ambassador for the interests of Service police within the wider policing community.”

It is important that the service police are seen to be a first-rate service; there should be nothing second rate about the legal service provided to the Armed Forces on whichever side of a particular trial they may be. It is important that the service police should have status and expertise in all fields. I recall, for example, a court martial in Germany involving a German victim, where it was necessary to fly in a criminal pathologist from England to examine a body and later give evidence, and other scientists had to be imported as well. That was only one aspect of the case—the management of a large case is extremely difficult. I respectfully suggest that you cannot get that experience within the service police because they are scattered and do not organise themselves in that way.

I commented at very considerable length in Committee on the necessity to maintain the serious crime unit in a manner that is operationally independent of the military chain of command—for all the reasons that I gave then, and those so eloquently advanced by the noble and learned Lord, Lord Thomas of Cwmgiedd. I do not propose to repeat those comments but very strongly support what he has said.

I emphasise the need also to set up a strategy policing board of experienced civilians—as referred to in paragraph (5) of this amendment—to which the provost marshal for serious crime and the defence serious crime unit should be accountable. That should be done now. There was some suggestion that the provost marshal for serious crime had already been chosen—that is the wrong way round. You need to get together the body of people who will provide support and to whom these various bodies will be accountable.

I will say a brief word about Amendment 27. I strongly agree that there should be a defence representation unit. There are a number of very competent and able solicitors around the country who carry out this task, but it is not well paid, and they have to travel considerable distances to do it; legal representation is frequently delayed as a result.

I remember my great friend Gilbert Blades, who was the solicitor in the Finlay case that started all this off in 1995. His method of attracting clients was to drive around in a pink Rolls-Royce, the arrival of which at an army unit would cause something of a stir. I do not imagine that a defence representation unit would pay the sort of fees that would enable a person employed there to buy a Rolls-Royce, but there we are. It is very important that such a unit be set up; I support that amendment too.

[Lord Coaker (Lab)]

My Lords, we strongly support Amendment 23 moved by the noble and learned Lord, Lord Thomas of Cwmgiedd, to which my noble friend Lord Robertson, the noble Lord, Lord Thomas of Gresford, and I have added our names. I thank the noble and learned Lord for the clear and concise way in which he outlined the need for this amendment and why the Government should think again with respect to it.

We welcome the establishment of the DSCU but remain concerned as to why the Government will not accept something as seemingly sensible as this amendment. It seeks only to implement Henriques’ full vision for the unit. Without it, independence is not necessarily guaranteed—a point that a number of noble Lords have made—and nor are the other recommendations for how the unit will function. If the Government accept such recommendations, why not put them on the face of the Bill?

The Minister has argued that the other Henriques recommendations remain in the mix but do not need legislative underpinning; however, there is a difference of opinion between what does and does not need legislative underpinning. For example, the noble and learned Lord, Lord Thomas, has argued that there needs to be a statutory provision for the witness and victim care unit, but the Government seem to say that it is not needed. Can the Minister tell us what legal advice the Government have received to come to such a very different conclusion?