Armed Services: Claims
Lord Thomas of Gresford Excerpts(7 years, 5 months ago)
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Lord Brown of Eaton-under-Heywood (CB)
My Lords, 60 years ago, as a young national serviceman, I was on active service in Cyprus. I record this not as a declaration of interest but rather as a boast because, together with a great number of other people, I am proud to have served Queen and country and it now distresses me, as it plainly distresses lots of others, to see how today, often years after valiant service in conflicts abroad, our forces are subject to apparently endless claims and allegations of misconduct. Not only is this upsetting, but it affects our nation’s combat capabilities by damaging morale, recruitment and our fighting strength. The problems of these largely now historic allegations are so many and so diverse that I have scarcely time even to outline them, let alone elaborate their possible solutions. There are multiple criminal allegations, multiple civil claims, claims by foreign combatants, claims by foreign civilians caught up the conflicts and claims by our own forces against the MoD. Essentially, as I shall finally come to suggest, the way ahead I would propose is not merely, as recently foreshadowed by government, to derogate from the ECHR in future combat but to reverse the trend of recent years whereby human rights obligations have been extended beyond the domestic sphere even to foreign battlefields.
First, however, I shall briefly chart the way these problems have developed and how we have reached our present sorry situation. The great majority of the criminal allegations and civil claims date from 2003 to 2009 in Iraq. Those years covered three phases: the initial invasion, the occupation and then four years as part of a multinational force assisting the Iraqi Government to maintain law and order. IHAT, the Iraq Historic Allegations Team, was established in 2010 to investigate the alleged ill treatment of Iraqi civilians in British custody. It was later extended to those not in custody. Initially this duty arose under the Armed Forces Act 2006 and previous such Acts, but later it had to be greatly extended to discharge what in 2011 Strasbourg held to be the UK’s investigative obligations under Articles 2 and 3 of the convention. Its initial case load of 165 cases to be completed by 2012 has grown hugely over the years, so that even in April this year there still remained 325 allegations of unlawful killing and over 1,300 cases of alleged ill treatment—hopefully to be completed by December 2019 at the cost of some £57 million.
Over the years, IHAT’s difficulties have increased, largely from the Strasbourg Court’s ruling in Al-Skeini in 2011 that, contrary to all previous understanding, the convention applied to our operations in Iraq. First, IHAT’s investigators were held to be insufficiently independent, and military police had to be replaced by naval and retired civilian police. Then IHAT was found insufficiently independent of the Executive for Article 2 and 3 investigations, for which inquisitorial inquiries on the model of coroners’ inquests were held to be required.
I should add that IHAT’s inquiries were serving also to meet the requirements of the ICC, whose prosecutor in 2014 opened a preliminary examination into war crimes—the alleged systematic abuse of detainees in Iraq. This followed a report by a retired senior judge into the notorious death of Baha Musa in 2003. Later, however, in December 2014, another retired judge reported in the al-Sweady case rejecting most of the Article 2 and 3 allegations arising from a number of detentions in 2004. Later still, in September this year, Sir George Newman published a report into the death of Ahmed Ali, who drowned in a canal as one of a number of looters driven into the water as punishment. The judge found a manifest disregard for the risk to Mr Ali’s life, but his greater criticism was the Army’s failure to train, instruct and guide the men in policing methods and how to deal with lawlessness, not least widespread looting, as in Basra.
Of course it is imperative in any future conflict that our troops should be better prepared for what often become essentially peacekeeping missions. Equally obviously, our troops should be held to the highest standards and any truly credible allegations of criminal wrongdoing should be properly investigated. However, it is fervently to be hoped that never again will it be necessary to embark on another vast IHAT-like process and engage in a series of Article 2 and 3-compliant judicial inquiries, with all the enormous problems that these face. It is unsurprising that in his September 2016 review of IHAT Sir David Calvert-Smith described the interviewing of witnesses as,
“the single most intractable problem”,
that it faces. Indeed, we now find ourselves paying Iraqi witnesses to travel abroad to give evidence against British soldiers.
One should note that despite all this huge effort and expenditure, barely a handful of investigations have led to any further action, and punishment thus far has been limited to a single fine. Meanwhile, alongside these endless criminal investigations—and, no doubt, to a degree prompted by them—a growing number of civil actions have been brought against the MoD, both public law claims for convention-compliant investigations and private law claims for compensation. Mostly these allege ill treatment, unlawful detention and in some cases unlawful killing. In September this year the Court of Appeal in al-Saadoon recorded over 1,200 public law claims and over 600 compensation claims, in addition to some 250 claims already settled. True it is that the UK has indeed paid out some £20 million or £30 million to settle a number of claims, most of which were doubtless well founded, though one suspects that few were of the Baha Musa kind. However, it seems likely that many claims are spurious. As the judge concluded in the al-Sweady inquiry,
“the vast majority of the allegations made against the British military … including all the most serious allegations … were wholly and entirely without merit or justification”.
Those are just the Iraqi claims. A series of cases also had to deal with a number of claims arising from the Afghanistan conflict—largely claims for wrongful detention—the lead case, Serdar Mohammed, being brought by a Taliban commander.
What, then, can be done to stem such a tide of claims following on from any future foreign combat? I am of the clear view that it is international humanitarian law, sometimes called the law of armed conflict, based largely on the Geneva Conventions, which strikes the appropriate balance between military necessity and humanity and which therefore should regulate the conduct of such operations, not the human rights convention, which is, rather, designed to regulate the domestic exercise of state power. Our American allies, for example, are not subject in such conflicts to inappropriately exacting human rights requirements; nor does the Canadian Charter of Rights and Freedoms apply to its forces fighting abroad.
We should therefore, in any future military conflict overseas, derogate, so far as we are able, under Article 15 of the convention, but I cannot pretend that derogation is a simple, straightforward and guaranteed route to immunity from all future human rights claims. Alas, I have no time today to go into the problems and limitations of derogation, but I understand that my noble and learned friend Lord Hope of Craighead will touch on these. So I would not stop with derogation. Rather, I would legislate to overcome the central problem we face following Strasbourg’s 2011 judgment in Al-Skeini holding, contrary to all previous understanding and this House’s earlier decision in the same case, that the convention applies not just within Council of Europe states but anywhere—in broad terms, whenever a state through its agents can be said to exercise control, an approach which itself leads to grave doubts and confusion as to its limits.
I am certainly not advocating that we should withdraw from the convention, so, subject to whatever may be achieved through derogation, we shall remain liable on the international law plane to any future Strasbourg ruling. But we could and, I believe, now should legislate for domestic law purposes to amend the Human Rights Act itself to confine its application to the UK. In 2007, when Al-Skeini was before this House, we had to decide, first, whether the Act applied extraterritorially and, secondly, who is within the UK’s jurisdiction for the purposes of the Convention. The late and great Lord Bingham of Cornhill, the wisest among us, dissented on the first point. He would have held that the Act has no extraterritorial application. The remaining four of us, however—unwisely, as I now think—held the contrary. We thought the Act should track the convention, but we did so explicitly on the basis that the convention itself applied only within the area of the member states with, as I myself put it,
“just a limited extra-territorial reach in certain closely defined circumstances”,
such as in an embassy abroad or, by analogy in Baha Mousa’s case, in a British military detention unit abroad. Naturally, one is reluctant to deny complainants any domestic law remedy, it being implicit in all this that we may choose not to give effect to some adverse international law ruling. For my part, however, I would find this much easier to justify in the present context than with regard to, say, prisoner voting, where it seems to me that the Government are being just plain silly.
Thus far, I have said nothing in respect of claims of deaths and injuries suffered by our own forces in conflicts abroad: claims against the MoD both under the Human Rights Act and in negligence. A number of such claims have been brought and, following a 4:3 majority judgment in the Supreme Court in Smith in 2013 refusing to strike them out, they remain undecided. I say nothing today as to whether the majority judgment may be regarded as right or wrong, but there seems little doubt that it has caused serious concerns in the MoD and the military about what the noble and learned Lord, Lord Mance, called, “the judicialisation of war”, and that it may lead to our Armed Forces becoming dangerously hyper-cautious in conflict.
What, then, should be done about this? Much has been written on this topic, perhaps most helpfully last year in the Policy Exchange paper, Clearing the Fog of Law. With regard to claims in negligence, I would suggest that the time has come, not to expand the rather elusive common law doctrine of combat immunity but rather to make a ministerial order under Section 2(2) of the Crown Proceedings (Armed Forces) Act 1987 to revive, in the case of warlike operations outside the UK, the effect of Section 10 of the old Crown Proceedings Act 1947, which had prevented claims for injury or death on military service. Section 10 was repealed in 1987 really because personal injury damages had by then risen way beyond the benefits payable to those injured on service under the Armed Forces pension scheme.
In fairness, and indeed as a matter of political reality, a ministerial order ending tort claims would now need to be accompanied by a scheme to compensate the injured fully on a no-fault basis. This would avoid all the problems of legal proceedings by way of stress, delay and expense and, of course, end the basic problem presented by Smith that the risk of litigation itself results in a damagingly risk-averse approach to soldiering.
As for human rights claims by our own forces—
Lord Brown of Eaton-under-Heywood
As this is a time-limited debate, I think I should be allowed to finish. As for human rights claims by our own forces, if the HRA is confined territorially, as I suggest it should be, such claims could be brought only in Strasbourg, and as to this, I tend to share the view of the minority in Smith that that court would itself shrink from adverse judgments based necessarily on reviewing the conduct of our military operations abroad.
All I have said is really but a thumbnail sketch of the many difficult questions that arise, and I now look forward to hearing the views of the number of real experts—all noble and several gallant, too—who I am delighted to note are to follow in this debate.
Lord Thomas of Gresford
My Lords, first I declare an interest as chairman of the Association of Military Court Advocates, with experience of courts martial and military matters over a period of some 20 years.
Regarding claims against the Ministry of Defence, I am with the noble and learned Lord, Lord Hope, in pointing out that these claims have been essentially on procurement issues. Even the case to which the noble and gallant Lord, Lord Stirrup, referred—regarding friendly fire—was as a result of inadequate communications equipment between the tanks that fired and the troops who received that fire. It was essentially an equipment problem. These claims against the Ministry of Defence are not on the basis of wrong orders, or no orders, being given in the field of battle but merely the putting of our troops into that battle without the necessary and proper protections that they should have. What has followed from that, and I know that noble and gallant Lords will appreciate this, is that the equipment has been improved in every case. They have been given better equipment; their service has been made that much safer as a result of the claims that have been brought.
I do not believe in a scheme of statutory compensation, as the noble and learned Lord, Lord Brown, suggested—though I congratulate him on bringing this debate forward, because it is very important—for the reason given by the noble and learned Lord, Lord Hope: that such statutory schemes tend to get more and more parsimonious. I was once a member of the criminal injuries compensation board when compensation was paid on the basis of civil damages, and kept in step. I resigned from that board when, back in 1992, the scheme was altered so that a tariff scheme, without regard to the particular circumstances of the individual, was introduced. Statutory schemes are not the answer.
I turn now to the claims for torture and inhuman and degrading treatment brought by people as a result of their alleged treatment by members of our Armed Forces. I ask the Minister: has a single one of the 326 cases, for which £19.6 million has been paid by way of settlement, been brought by a combatant as a result of injuries that he received in actual warfare—in combat? I should have thought that combat immunity, although it may shade a little at the edges, is a sufficient defence to any such claim. I think that we are dealing simply with prisoners of war and civilians and the treatment that has been meted out to them. If combat immunity is at all vague, it is because it is generally a question of fact, not of law.
I was in the Baha Mousa case—I represented one of the officers who was charged with neglect of duty—and I very much recall what it was about. It was an absolute disgrace. Do your Lordships appreciate that the case against the corporal who pleaded guilty to a war crime and received 12 months’ imprisonment for it was standing at the door of the stinking prison in which these prisoners were kept, inviting passers-by—military personnel—to come in and take a shot at hitting or kicking the Iraqis who were hooded and tied in that compound? That was the sort of circumstance that led to Baha Mousa receiving 93 separate injuries, as the evidence said.
In the al-Skeini case, it was decided that the civil claim could go forward on the basis that the prison could be regarded as an equivalent to an embassy. Certainly there were no Ferrero Rocher things being handed out there. It was the most dreadful place, and for it to be compared with an embassy to give jurisdiction was completely wrong.
Reference has been made to Lieutenant-Colonel Mercer, who served some 20 years as a lawyer in the Army. He served in Northern Ireland and also in Bosnia. He volunteered his expertise to the defence team of which I was one—in fact, specifically to me—when we were defending seven paratroopers from the 3rd Battalion of the Parachute Regiment in a court martial in Colchester in 2005. They were all acquitted. I remember that case for one very good reason.
An Iraqi lady had been brought over from a village in Iraq because she had complained that a paratrooper had ripped off the front of her dress and exposed her to the villagers, and to be exposed in that way was the worst thing that could happen to a woman in Iraq. She came to the witness box and took the oath on the Koran. Then, to the surprise of everybody, she announced, “I have now taken an oath on the Koran, and I have to tell you that everything I’ve said so far has been a lie”. That was the quality of the evidence in that case. Judge Blackett, the Judge Advocate-General, when dismissing the case said that,
“most of the Iraqi witnesses have exaggerated their evidence”.
Three women, one of whom was pregnant at the time of the incident,
“have admitted telling lies that they were seriously assaulted when they were not … Others have been shown to tell lies”.
He added:
“In their own admission these Iraqis saw an opportunity to seek financial advantage from the British Army. They frequently spoke of fasil, or blood money, and compensation in relation to what were patently exaggerated claims”.
I certainly had my eyes opened by that case; falsified claims could very easily be brought, and discovered.
Article 1 of the European convention requires states to uphold the rights guaranteed by the convention within its jurisdiction—not its territory, its jurisdiction. The noble and learned Lord, Lord Brown, suggested that the extent of the European covenant should be confined to the United Kingdom. That, of course, would have meant that the Baha Mousa family could not have brought any proceedings. But the al-Skeini judgment was considered by the European Court of Human Rights, and it said that,
“if universality truly is the foundation of human rights, why should it matter for the purpose of its extraterritorial application that the ECHR is a regional treaty? Jurisdiction either means control of a territory or it does not, and people either are within the state’s jurisdiction or they are not”.
It held that,
“following the removal from power of the Ba’ath regime … the United Kingdom … assumed in Iraq the exercise of some of the public powers normally to be exercised by a sovereign government”.
In other words, it was within the United Kingdom jurisdiction. So we ought not to confine the convention territorially to the United Kingdom.
As for derogation, I follow the noble and learned Lord, Lord Hope, again in saying that it is very difficult to derogate from the convention. The phrase,
“in time of war or other public emergency threatening the life of the nation”,
could not possibly be applied to our invasion of Iraq or Afghanistan.
I was brought up in a world in which barratry still existed—that is the stirring up of litigation. It was abolished only in 1967. Ambulance chasing was against the law but, since that time, it has started again. I was against the legal profession advertising its services, but that stopped in 1986. That has led to the sorts of abuses that we have seen by certain very limited firms of lawyers who are facing professional obloquy. I do not believe that commanders in the field are afraid of firms of lawyers of that calibre, and I am quite sure that they follow far more readily the legal advice that is always at their hand.
The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, I am very grateful to the noble and learned Lord, Lord Brown, for tabling this Motion. The issues that it covers have been debated on a number of occasions in this House in recent years. I thank the noble and learned Lord for his continued concern about these matters, his masterly résumé of the issues involved and this timely opportunity to take stock of recent developments. The contributions to this debate have shown how much is at stake here, above all the ability and confidence of our Armed Forces to conduct effective operations in our national interest.
Before I outline the measures we are taking to mitigate these issues, I should start by emphasising the point well made by the noble and gallant Lord, Lord Stirrup: that the Armed Forces of the United Kingdom are required, without exception, to comply with all applicable domestic and international law. That said, a series of court judgments have created uncertainties about some aspects of the law relating to the conduct of armed conflict, or unintended consequences that could well impact on our Armed Forces’ ability to train and operate. The Government have expressed their concerns about this in recent years, and the manifesto commitment last year, which was to,
“ensure our Armed Forces overseas are not subject to persistent human rights claims that undermine their ability to do their job”,
was a clear signal of their intent to tackle the effects of legal claims and legal developments.
The strength of interest and the quality of debate we have heard here today demonstrate the breadth and complexity of the challenges we face. Military operations in Iraq and Afghanistan have led to an unprecedented volume of litigation about, for example, ECHR jurisdiction, detention, and how international humanitarian law and the European Convention on Human Rights interact in armed conflict, and which include thousands of private law claims for compensation. The personal impact on service personnel has been brought to light in the context of IHAT—the Iraq Historic Allegations Team. We have also seen what I will simply call questionable conduct on the part of some law firms, as well as escalating costs for defending claims or conducting investigations where the evidence or allegations are, at best, unsubstantiated or, at worst, based on lies, as witnessed in the Al-Sweady public inquiry.
All these problems require a broad-based response; there is no simple remedy. The Government have accordingly been giving careful consideration to how to manage the adverse effects of these legal challenges and avoid similar difficulties in the wake of future conflicts. We have already taken a number of steps to help this mitigation. First, as a number of noble Lords have mentioned, the Prime Minister and the Defence Secretary have already set out the Government’s intention to derogate from the European Convention on Human Rights, where appropriate. I was grateful for the comments of the noble and gallant Lord, Lord Richards, on this issue. Let me be clear here: there is no question of a blanket opt-out from the ECHR. If and when a derogation is made, it could be made only from certain Articles of the convention and would have to be fully justified by the circumstances pertaining at the time. Where justified in the light of circumstances, it could serve to limit some of the opportunistic ECHR-based claims we have seen, and would reflect what we consider to be the right balance between these rights and the law of armed conflict.
I am afraid I must take issue with the noble Baroness, Lady Kennedy, who criticised the idea that we might derogate from the ECHR. This would not, as she certainly implied, put British troops above the law. She stated that international humanitarian law would not be enough to ensure that justice would be done. Our Armed Forces are, at all times, subject to UK service law, which includes the criminal law of England and Wales. International humanitarian law, based on the Geneva Conventions, will still apply in situations of armed conflict and there are some rights that cannot be derogated, such as protection from torture and slavery. The noble Lord, Lord Thomas of Gresford, asked whether any cases involving Iraqi prisoners had been brought by combatants. The answer is no—these cases do not involve the principle of combat immunity. The vast majority result from the ECHR decisions that UK forces did not have the right to detain people suspected of insurgency.
On another point made by the noble Baroness, Lady Kennedy, to deduce from the many millions paid out in compensation that there has been extensive wrongdoing would be wrong. The vast majority of the sums paid out were paid because the European Court of Human Rights decided that the UK had no right to detain dangerous insurgents in Iraq. The court has since significantly altered its position on that point, but we will not be able to recover the money. It is worth adding that Article 4 of the International Covenant on Civil and Political Rights also permits states to derogate from certain rights, providing the conditions as set out are met. I emphasise that, if and when the UK does derogate, care will be taken to ensure that it is wholly consistent with our other international legal obligations, as required by Article 15 of the ECHR.
It is important that I should make one other thing clear, especially in response to the noble Lord, Lord Dannatt. We take seriously our legal and moral duty to investigate credible allegations of criminal offences and to prosecute, where appropriate. I agree with the noble Baroness, Lady Kennedy, that the case of Baha Mousa serves as a reminder that a small number of serious offences were undoubtedly committed. I stress that the overwhelming majority of service personnel deployed on operations conduct themselves to the highest standards and in accordance with the law. The Al-Sweady inquiry, which I mentioned, has demonstrated that some allegations will be exaggerated or even false—the noble Lord, Lord Thomas of Gresford, referred to others in that category.
The noble and learned Lord, Lord Hope, suggested that any derogation should be subject to parliamentary approval. Let me make clear what the process would be. A designation order can be made by the Defence Secretary, which would come into force from the date made. However, under the existing law, a designation order under the Human Rights Act must be subsequently approved by each House of Parliament within 40 days from that date in order to amend the terms of the Human Rights Act. In this context, perhaps I could address a point made by the noble Lord, Lord Bilimoria. It is important to note that, to date, derogations from the ECHR by other states, including the United Kingdom, have been in respect of activities on their own territories. The announcement by the UK to derogate, where appropriate, for armed conflict overseas is, I hope, a clear statement of intent.
The noble and gallant Lord, Lord Craig, and the noble Lord, Lord Dannatt, suggested that we should remove ourselves from the jurisdiction of the International Criminal Court, as the United States has done. I would just point out that the obligation to investigate serious allegations against our Armed Forces is based squarely on UK domestic law. As long as that is done, we have nothing to fear from the International Criminal Court. We should remember that, in the context of the Baha Mousa case, it is not true to say, as the noble Lord, Lord Thomas, did, that the family could not have brought proceedings had it not been for the ECHR. The Baha Mousa family was in fact able to sue the Ministry of Defence under common law. A settlement was eventually reached as a result of mediation.
Earl Howe
I am grateful to the noble Lord for his comments if I misunderstood him.
The noble and gallant Lord, Lord Richards, asked whether the Government would retrospectively end prosecutions. The Government are extremely reluctant to propose retrospective legislation because it compromises the principle of legal certainty. However, we will seek to ensure that investigations are brought to a close as quickly as possible.
Lord Thomas of Gresford
I certainly did not say that. I said that I could not imagine any case arising that the Ministry of Defence would settle where combat immunity was a defence.
Earl Howe
I am grateful. However, to clarify this point, the Challenger case mentioned by the noble Lord turns on training rather than procurement, but the important point here is that no one now knows the extent to which military decisions may be questioned in court. That is the problem the Government must, and will, address. I also suggest that combat immunity is a real problem. We have three major cases progressing through the courts at the moment, and many others are stayed behind them. Therefore, to suggest that this is only a minor issue involving one or two people is incorrect.
The noble and learned Lord, Lord Hope, suggested that the Armed Forces compensation scheme should be made subject to statute. In fact, the scheme covers any claims made since 6 April 2005. It was made part of the Armed Forces Act of that year.
The noble and learned Lord, Lord Brown of Eaton-under-Heywood, suggested that one solution would be to reinstate Section 10 of the Crown Proceedings Act. I am hesitant about that solution. It is one of the options we have been looking at but it would be possible only under certain specific circumstances, and careful consideration would need to be given to the impact on service personnel. Certainly, I agree with the noble and learned Lord that such a step would not be sufficient on its own.
I also want to make it clear that we remain unequivocal in our commitment and duty to look after our Armed Forces and veterans, particularly those who are subject to investigation. What is more, we remain steadfast in our commitment to support those who face legal proceedings. In respect of the Iraq conflict, the IHAT is now making rapid progress towards its expected completion by the end of 2019—a point which Sir David Calvert-Smith affirmed in his recent review of the IHAT. Some 70% of the more than 3,000 allegations received have already been disposed of, the vast majority without the need to interview service personnel or veterans. I say to the noble Lord, Lord Touhig, that we are confident, based in part on Sir David Calvert-Smith’s report, that the IHAT will be able to meet the progress targets it has set. The IHAT’s workforce is comprised of Royal Navy Police and experienced former civilian police officers who are dedicated to conducting their investigations as sensitively and effectively as possible. The noble Lord, Lord Touhig, questioned whether three days was enough training on the conditions in Iraq, and said that perhaps Ministers were not briefed about the proceedings often enough. There is a balance to be struck here. Ministers absolutely respect the IHAT’s independence, but I am sure they will take full account of any recommendations the Commons Defence Committee makes on this matter.
I think the noble and learned Lord, Lord Brown of Eaton-under-Heywood, suggested that we are actively paying Iraqi witnesses to travel to interviews. I make it clear that the IHAT pays only travel and subsistence expenses and loss of earnings. That is essential if the necessary investigations are to proceed.
My noble friend Lord Robathan turned our attention to issues in Northern Ireland, and said very powerfully that something has to be done about prosecutions of veterans in Northern Ireland 30 or 40 years after the event. I very much share my noble friend’s concern that these legacy investigations must recognise that the vast majority of deaths in the Troubles were the direct responsibility of the terrorists. Northern Ireland would not be the peaceful place it is today without the tireless work and many sacrifices made by the Armed Forces.
The noble Lord, Lord Bew, also referred to issues in Northern Ireland, and in particular the soldiers from Bloody Sunday who face prosecutions, whereas the terrorists do not. The noble Lord will recognise that, as a Ministry of Defence Minister, I cannot comment on or influence possible prosecution decisions. I am sure that those who make such decisions will take due note of his words.
I shall of course write to noble Lords whose questions I have not had time to answer today. At the end of a debate of this kind it is right for me to conclude by reiterating my unwavering admiration for our Armed Forces. The job they do, protecting and defending our freedom, security and prosperity in often difficult and challenging circumstances, is second to none. In this spirit the Government are seeking to move forward and deliver their manifesto commitment to ensure that our Armed Forces are able to do their job effectively, safe in the knowledge that they have our full and unstinting support, and confident in our ability and intent to protect their freedoms when they return home.
British Servicemen: Vexatious Law Suits
Lord Thomas of Gresford Excerpts(7 years, 6 months ago)
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Earl Howe
As regards combat immunity, the Government have previously made it clear that we will not rule out legislating, which is being considered among a range of options. It has been suggested that we should simply reinstate Section 10 of the Crown Proceedings Act; that is one of the options we are looking at, but it would be possible only under certain specific circumstances. No plans are in train for any immediate change on that front.
Lord Thomas of Gresford (LD)
My Lords, I have professional experience of fraudulent claims and of legitimate claims like the Baha Mousa case, where the deceased received 95 injuries before he died. I note that the Ministry of Defence has settled 326 claims at a cost of £32 million; I assume that those were legitimate claims. Do the Government now intend to abolish or prevent all claims being brought by prisoners or civilians who are injured in the course of operations, regardless of whether they are legitimate or vexatious?
Earl Howe
As the noble Lord is aware, the Iraq Historic Allegations Team looks into these allegations, which have totalled more than 3,300 to date. The current case load is around 1,600 and it expects to reduce that number to 250 by next January. We cannot simply close it down, because that would mean leaving these allegations open to referral to the International Criminal Court in The Hague, with the possibility of trials there. We must therefore investigate properly in this country.
Investigatory Powers Bill
Lord Thomas of Gresford Excerpts(7 years, 10 months ago)
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Lord Keen of Elie
I note what the noble Lord says and welcome the suggestion that we speak to the Northern Ireland Office to see what its experience has been over the past 16 years and take that into account. However, at this stage, without further elaboration, and appreciating that the Committee understands the issue of principle that we are concerned with, I invite the noble Lord to withdraw the amendment.
Lord Thomas of Gresford (LD)
I have listened with puzzlement. I know that anecdotes do not go down terribly well, but some years ago I was playing rugby for the northern circuit of the Bar against the Irish Bar. I became friendly with an American spectator and talked with him; I think that I introduced him to the Chief Justice of Ireland that evening at dinner in the King’s Inns. However, the following Wednesday half a page was written about the American, who was on the run from the United States for spying. Everything comes into that, including surveillance. I thought no more about it for a fortnight until the phone rang, and it was him. He said, “I want your advice”. I said, “Where are you?”. He said, “I’m in Paris”. I said, “What do you want to know?”. “He said, “Which countries don’t extradite to the United States?”. I could not conceivably breach legal professional privilege by telling your Lordships what my advice was, but would that merit a warrant for interception of the telephone call to me at my home from somebody in Paris in such circumstances?
Lord Keen of Elie
There might be circumstances in which the relevant individual was intent upon a terrorist outrage in Paris, and if the fact that he was going to communicate with the noble Lord was known to the authorities, they might consider that piece of intelligence to be absolutely critical to preventing that terrorist atrocity. In those circumstances, it is possible that the information could be obtained.
Lord Thomas of Gresford
But not the fact that he was proposing to escape charges of spying by going to another country. Was there something iniquitous about our conversation?
Lord Grabiner (Non-Afl)
There probably was because no solicitor was engaged. So privilege was not attracted at all.
Lord Keen of Elie
The noble Lord makes a good point, and it may be that the noble Lord, Lord Thomas, wishes to refer himself to the Bar Standards Board. However, I understand that the rules have changed since then.
Lord Thomas of Gresford
The first thing I did was to instruct a solicitor to go and see him.
Lord Mackay of Clashfern
One possible approach would be to consider what is meant by legal professional privilege. It is a privilege of the account that the client gives to the solicitor of the facts on which the client wishes to be advised, and the advice that the solicitor gives in return to that application. A statement of where, for example, the client is at that particular time is not part of either of those. Therefore, that is not, strictly speaking, covered by legal professional privilege at all. This is a way of looking at this matter that is slightly differently from trying to make conditions on legal professional privilege.
Iraq Inquiry
Lord Thomas of Gresford Excerpts(7 years, 10 months ago)
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Lord Thomas of Gresford (LD)
My Lords, the decision to go to war in Iraq is not history; it is the here and now. I have to reject the assertion made today by the noble Lord, Lord Blunkett, that the conflict between Sunni and Shia that is ravaging Iraq and Syria has nothing at all to do with the decision of the Blair Government to join with the USA in the invasion of Iraq. As the noble Lord, Lord Williams of Baglan, pointed out, since that invasion Iraq has never become a functioning state.
Chilcot throws light on matters of which we knew nothing in late 2002 and 2003. I will focus on legality. On 4 January 2003, Mr Blair had concluded that the “likelihood was war” and, if conflict could not be avoided, the right thing to do was fully to support the US. On 14 January, the Attorney-General, the noble and learned Lord, Lord Goldsmith, gave draft advice that Resolution 1441 would not by itself authorise the use of military force. Indeed, the purpose of that resolution was to set up an enhanced inspection regime under Dr Blix with the aim of bringing to full and verified completion the disarmament process established by Resolution 687. There was nothing in it to authorise war.
On 27 February the Attorney-General told No. 10 officials that the safest legal course for future military action would be to secure a further Security Council resolution. However, he had reached the view that a “reasonable case” could be made that Resolution 1441 was,
“capable of reviving the authorisation to use force in resolution 678 (1990) without a further resolution, if there were strong factual grounds for concluding that Iraq had failed to take the final opportunity offered by resolution 1441”.
He advised that to avoid undermining the case for reliance on Resolution 1441, it would be important to avoid giving any impression that the UK believed that a second resolution was legally required. That was the get-out clause.
Germany, Russia and France stated on 5 March that they would not let a resolution pass that authorised the use of force. It was Mr Straw who suggested on 11 March that the UK should adopt the strategy floated by the Attorney-General as a “reasonable case”, his alternative approach.
The critical letter from the Attorney-General to the Prime Minister on 14 March passed the parcel: it placed the issue of legality foursquare in the hands of the Prime Minister. Mr Blair was advised that an essential ingredient of the legal basis was that he himself should be satisfied of the fact that Iraq was in breach of Resolution 1441. To no surprise, Mr Blair simply announced that Iraq was, and remained, in breach, a point strongly made by the noble Lord, Lord Morgan. Was that honourable, as the noble and right reverend Lord, Lord Harries of Pentregarth, would suggest? I do not think so. No record was kept of that decision, and Chilcot says that,
“the precise grounds on which it was made remain unclear”.
They are unclear because there was no evidential basis for that assertion by Mr Blair, as any lawyer would know, and there lies the essence of Mr Blair’s culpability.
On 17 March, three days before the invasion of Iraq began, my noble friend Lord Goodhart initiated a debate on the legality of going to war—it was thought that we would make one last attempt. He said that the Attorney-General’s opinion reached,
“a highly questionable conclusion, which is based on a dubious interpretation of deliberately ambiguous wording … The idea that vague and ambiguous words in those resolutions can be read as implying a delegation”,
to take decisions on the use of military force from the United Nations,
“to the United States, with or without the United Kingdom”—
as the Attorney-General had argued—
“verges on the absurd … The Government should face up to the fact that what we are about to do is not lawful. They will have to bear the consequences of that, and so will we”.—[Official Report, 17/3/03; cols. 70-72.]
The noble Lord, Lord Touhig, said that opposition to the invasion was treated with respect. I remind him that a Member of this House described my noble friend’s argument as “bizarre”. Noble Lords from the Labour Benches—the noble Lords, Lord Archer of Sandwell and Lord Brennan, both of whom were distinguished lawyers—were in support. I said that it was for the Security Council to decide whether and to what extent Iraq was in breach of its obligations and to determine what the appropriate action was. I said:
“The United Kingdom may, by promoting a resolution in cahoots with the United States and Spain, act as prosecutor, but it has to persuade the jury of world opinion, represented by the Security Council, that there has been a material breach of Resolution 1441 which is punishable only by recourse to war. Neither the United Kingdom nor the United States is entitled to enforce the ‘will’ of the Security Council”—[Official Report, 17/3/03; col. 79]—
when it has not been expressed.
Three days later, the invasion began and the United Kingdom became embroiled in an illegal war of aggression. The International Criminal Court now has jurisdiction over the crime of aggression. It was defined in 2010 by the state parties as,
“the planning, preparation, initiation or execution by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations”.
I consider that the invasion of Iraq without the consent of the United Nations was a manifest violation of its charter. Mr Blair has a case to answer and, as the noble Lord, Lord Owen, pointed out, his reaction is simply defiance.
The International Criminal Court postponed the exercise of its jurisdiction over the crime of aggression until 2017 and it will not be retrospective—so what can one do about instituting a war of aggression? There are calls for Mr Blair to be brought before Parliament for contempt of Parliament on the grounds of his misleading the House of Commons. Such an offence has a long and ancient history in law, and it is not obsolete. It was used in Canada as recently as March 2011; as a result, the then Canadian Government fell and there was a general election. I support those who seek to move in that direction—as, judging by his speech, the noble Lord, Lord Owen, clearly does, supported, I believe, by the noble Lord, Lord Bew.
For the moment, Mr Blair faces the court of public opinion. Chilcot supplies the evidence which convicts both him and those who surrounded him in making that fatal decision.
Armed Forces Bill
Lord Thomas of Gresford Excerpts(8 years ago)
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“Majority verdicts
For section 160 of the Armed Forces Act 2006 (decisions of Court Martial: finding and sentence) substitute—“Majority verdicts(1) The finding of the Court Martial need not be unanimous if—(a) in a case where there are not less than seven members of the court, five of them agree on the finding;(b) in a case where there are five members of the court, four of them agree on the finding;(c) in a case where there are three members of the court, two of them agree on the finding.(2) The judge advocate shall not vote on the finding.(3) Where the finding of the Court Martial is guilty, the judge advocate shall not accept the finding unless the President has stated in open court the number who respectively agreed to and dissented from the finding.(4) The judge advocate shall not accept a non-unanimous finding under subsection (1) unless it appears to the judge advocate that the members of the Court Martial have had such a period of time for deliberation as the judge advocate thinks reasonable having regard to the nature and complexity of the case.””
Lord Thomas of Gresford (LD)
My Lords, the issue raised by Amendments 1 and 2 is whether a serving member of the Armed Forces is a citizen in uniform and entitled to the same protection of his rights and freedoms as any other citizen, or indeed as a member of any other disciplined service, such as the police, or whether, as a matter of policy, he and his family should, if they come with the character of persons subject to service law, be subject to a fundamentally different judicial procedure in respect not just of breaches of the disciplines inherent in his trade or calling, but, under Section 42 of the Armed Forces Act 2006, of the entire body of criminal law, including the most serious charges.
The system of jury trial probably predates the Norman Conquest. It involves the trial of serious criminal charges by 12 members of the public. It has been like that for the best part of 1,000 years. From at least 1367, unanimity was required, whether the verdict was guilty or not guilty. Six hundred years later, by Section 13 of the Criminal Justice Act 1967, majority verdicts were allowed in the ordinary criminal courts. With the consent of the trial judge, after a period of appropriate deliberation and directions, a verdict by a majority may be received. Where there is a finding of guilt, the vote has to be stated in open court. Where there is an acquittal, no majority is stated.
The criminal standard of proof is guilt beyond reasonable doubt: the jury has to be sure. Sir Patrick Devlin said, in his famous book Trial by Jury:
“The criminal verdict is premised upon the absence of reasonable doubt. If there were a dissenting minority of a third or a quarter that would of itself suggest to the popular mind the existence of a reasonable doubt and might impair public confidence in the criminal verdict”.
That was in 1952, when majority verdicts might suggest that a reasonable doubt existed.
Public confidence is everything. I do not propose to repeat everything that I said at Second Reading and in Committee but it is obvious, by the series of media storms that we have endured and the public demonstrations that have taken place, that the verdict of a court martial does not command public confidence. To draw a very topical parallel, it is inconceivable that if police officers involved in the Hillsborough disaster were to be tried for gross negligence and manslaughter by a panel of senior police officers, the outcome would be acceptable.
The system of courts martial has its origins in a statute of Edward I in 1279, which enacted that, by virtue of the royal prerogative, the sovereign of England has the right to command, and thereby the power to regulate and discipline, the military forces of the nation. The Court of the Constable and Marshal administered military law, although the office of constable was effectively abolished when Henry VIII beheaded the then Lord High Constable—so the right to try military offences devolved to an ad hoc committee of officers, known first as Marshal Courts and then as courts martial. The authority of courts martial later derived from a succession of Mutiny Acts passed between 1678 and 1878, then subsequently by the Army Act of 1881 and its successors, which will shortly include this Bill. So the two systems of civil and military law had quite different origins and it is only very slowly that they have converged—but converged much more rapidly since the European Court of Human Rights delivered a devastating verdict upon the system back in about 1989.
Every move has met with resistance from the military and the civil servants advising them. For example, I read with interest today a debate of 1926 in the other place where Ernest Thurtle, the Member of Parliament for Shoreditch and the son-in-law of George Lansbury—later leader of the Labour Party—sought the abolition of the death penalty for cowardice or desertion. The same old familiar arguments were produced: that it was bad for discipline and would reduce the determination of soldiers to fight if the death penalty for cowardice were abolished. The Government of the day had no answer to the argument that the Australians were under no such constraint when their bravery and discipline at Gallipoli and elsewhere could not be doubted. That Bill eventually got through in 1930 under a Labour Government but was rejected by the House of Lords, notably led by Lord Allenby and other retired generals. The House of Commons had to insist upon it for it to go through.
My Amendment 1 seeks to replace the current Section 160 of the Armed Forces Act 2006 to take another step towards convergence. In the third edition of Rant on the Court Martial and Service Law, edited by the current Judge Advocate-General, Judge Blackett, paragraph 5.126 states:
“An undisclosed simple majority decision in a serious case where the defendant is at risk of a significant custodial sentence might be perceived as being inherently unsafe, since the outcome rests on a knife edge … This provision is a legacy from the past, which represents a significant weakness in the Service justice system and a striking contrast with the much more secure arrangements in the Crown Court. When there is legislative opportunity the law should be changed”,
in a court martial, said the Judge Advocate-General,
“to require either a unanimous verdict, as, for example, is the case in the Court Martial system in other Commonwealth countries such as New Zealand or at least a significant and disclosed majority”.
Earl Howe
The noble Lord makes a very important point. This is certainly one of the factors that will need to be looked at in detail. If there is justification for changing the system, we will need to look at all the reasons that have been advanced for such changes. I agree with the noble Lord that we need to get to the bottom of whether there is a lack of public confidence in the way the system currently works. I can undertake that that will be part of the scrutiny we will conduct.
Lord Thomas of Gresford
My Lords, on that point, I gave a whole series of instances in Committee, which I have not repeated this evening. Let me give just two. I was involved in the Baha Mousa case, and as a result of the acquittals the Government set up an inquiry that lasted three years and took a lot of evidence, at great cost, in order to find out what went wrong.
I happen to have a room overlooking Old Palace Yard, and I hear every demonstration that takes place outside. During the Sergeant Blackman case, there were demonstrations in Old Palace Yard by serving as well as retired military people. I have never come across such a public demonstration against the result of a trial, even in very controversial cases. In Committee, I cited the case during the miners’ strike involving the murder of a taxi driver with a concrete block, in which I prosecuted. There was no public demonstration after that; but there seems to be a public demonstration after every controversial military decision. That includes newspapers beyond the Daily Mail, which of course carried out—and is carrying out—a campaign in the Blackman case.
The argument that the system is for the maintenance of discipline, and that we should have courts martial for that purpose, was the argument used in 1926 in the debate, to which I referred, to try to retain capital punishment for cowardice. The same arguments were advanced—that if you do not have the death penalty hanging over you, you will never go over the top or face military confrontation.
The noble and learned Lord, Lord Hope, referred to the Scottish system and the fact that there are no retrials. Personally, I think it is an argument for another day to weigh whether a not proven verdict is more satisfactory than having a retrial. To my mind, a not proven verdict leaves individual defendants in limbo.
Having made those comments, I welcome the fact that the Government are prepared to carry out a review of the current arrangements, and I shall await its results with considerable interest and anxiety. In my view, something has to be done. I have personal experience of courts martial and what happens as a result of them.
On sentencing, I would not be arguing the point if we were concerned only with service discipline, such as absent without leave charges, desertion or even mutiny. The trouble is that Section 42 of the 2006 Act brings into the purview of courts martial murder, manslaughter and rape—the most serious cases imaginable. To my mind, it is wrong that there should be a divergence from the rest of society in the way that a small but important group are tried and treated, particularly given that there are groups in the rest of society that require precisely the same discipline as the Armed Forces. However, I do not propose to pursue these matters to a vote, and I beg leave to withdraw the amendment.
Earl Attlee
My Lords, the noble Lord, Lord Berkeley, just mentioned Deepcut. I urge anyone who has the slightest worry about Deepcut to read the Blake report, which explains what happened.
I agree with the general thrust of these amendments, particularly the sensible approach from the noble Lord, Lord Touhig. In Committee, the Minister was sympathetic to our concerns but he has rather too much faith in the commanding officer. Yes, commanding officers are extremely experienced and they are specially trained to be commanding officers. There is a course for commanding officers-designate. My experience is that with every level you go up in terms of promotion, you get more information about what your responsibilities are and what the difficulties are.
Nevertheless, the power of the commanding officer can be delegated to more junior officers, so quite often—in terms of discipline, for instance—minor offences can be dealt with by a major or a lieutenant-commander. These cases are exceptionally difficult for the commanding officer to investigate. Clearly he will not be able to investigate them personally. He may even be out of the country when the allegation arises. The commanding officer or the acting or delegated commanding officer will have to appoint someone else in the unit to carry out the investigation, and that person will not be any better trained. Furthermore, the fact that someone else in the unit may have to be appointed to carry out the investigation may deter someone from making an allegation in the first place.
Amendment 5 covers only sexual assault; it does not cover inappropriate contact, by which I mean touching. However, this can also be a problem and it can be a precursor to more serious problems. As I said in Committee, my belief is that the service police should keep records of allegations of sexual assault and inappropriate contact. They would then know whether a person had made this type of complaint before and could ask whether they could be a serial complainant, and they would also have records of someone who had had a similar allegation made against them before and they might even know the MO, so they would understand whether the allegation was likely to be true or malicious. If the service police keep records, investigations can be facilitated, and it is better to achieve this through a policy change rather than through the amendment, which, as I said, has the defect of not covering inappropriate contact.
The noble Baroness, Lady Jolly, referred to the culture in the Armed Forces as a reason for publishing the statistics. She will be aware that the Armed Forces carry out continuous attitude surveys that measure changes. She made the important point, from her own background and experience, about measuring changes. In Committee, the Minister explained what information is already released and the noble Lord, Lord Touhig, told us how difficult it is to access it. However, my concern is that the media—particularly the print media—will use these statistics to produce an easy story. It is easy to quote a horrendous number of incidents without comparing them with the number of such incidents in civil society.
In conclusion, I feel very strongly about the need for record-keeping by service police to facilitate investigations. These are very difficult matters for officers and warrant officers in a unit to investigate. Frankly, I do not think they relish it; they would rather hand it over to the service police, who have the relevant experience.
I hope the Minister can say something helpful to us, but I am also happy to join noble Lords later in keeping up the pressure on my noble friend the Minister, because I know that he enjoys getting pressure from me.
Lord Thomas of Gresford
Schedule 2 to the Armed Forces Act 2006 lists the offences that a commanding officer is required to report to the service police for investigation. There is a long list of offences, including, in paragraph 12(at), any offence under Part 1 of the Sexual Offences Act 2003,
“except one under section 3, 66, 67 or 71”.
Section 3 is a very important part of the Sexual Offences Act 2003. It relates to sexual assault, which of course can vary from a very serious sexual assault to the sort of touching that the noble Earl, Lord Attlee, referred to a moment ago. That provision means that the commanding officer is not required to pass on for investigation to the service police a complaint of sexual assault. I imagine that he most certainly would pass on an allegation of serious sexual assault, but there is a great loophole there because commanding officers differ. Some may have one view on what a sexual assault is and another may have a completely different view, in effect telling the complainant to go away and not be silly. So there is a problem there. At the moment it is an unexploded bomb within the system.
“Extra-territorial jurisdiction for sexual offences
In section 42 of the Armed Forces Act 2006 (criminal conduct), after subsection (1) insert—“(1A) If a person subject to service law, or a civilian subject to service discipline—(a) does an act in a country outside England and Wales, and(b) the act, if done in England and Wales would constitute a sexual offence under any of sections 1 to 12, 14 to 19 and 30 to 37 of the Sexual Offences Act 2003,that person or civilian is guilty in England and Wales of that sexual offence.””
Lord Thomas of Gresford
My Lords, the courts of this country have long had extra-territorial jurisdiction to try in this country offences of murder, manslaughter, piracy, treason and certain other, more obscure offences. However, they do not have extra-territorial jurisdiction for sexual offences. Amendment 11 would give the courts of this country jurisdiction to try somebody in the ordinary civil courts, if that person is subject to service law or is a civilian subject to service discipline, who commits an act in a country outside England and Wales that would be a sexual offence. Various sections from the Sexual Offences Act 2003, which I have quoted, relate to serious sexual offences. That would mean that a sexual offence committed abroad would be subject to the protocols in this country that now exist between the Director of Public Prosecutions and the Director of Service Prosecutions and could be tried in the ordinary civil court, as opposed to the courts martial. Courts martial are now established courts, with centres at Bulford, Catterick and Colchester. A person who commits a sexual offence who is subject to service law abroad now could be brought to this country and tried for the sexual offence by way of court martial but could not be tried in the ordinary courts. That is the purpose of Amendment 11: to extend extra-territorial jurisdiction to cover sexual offences.
As for election for trial in the UK, my amendment suggests that such a person, who is subject to service law and has committed an extra-territorial offence that could be tried by a court martial at Bulford, Catterick or Colchester, could elect to be tried in the ordinary courts if he or she so wished. Of course, he or she would have to take advice on what was more appropriate, but it would mean that he or she would have the opportunity to be tried not by officers but by 12 ordinary jurors in this country. I beg to move.
Lord Hodgson of Astley Abbotts (Con)
Will the noble Lord, Lord Thomas, clarify one thing? I am a member of the Secondary Legislation Scrutiny Committee and this past week we have been looking at the agreement with the Government of Kenya for the provision of two training areas. There are various changes taking place within that, and one is that all Armed Forces personnel going there will have to obtain visas in future. How, then, does what the noble Lord proposes tie in with the provisions of Kenyan law for people who are in that country? Does our military discipline law come ahead of Kenyan domestic law, and how does that tie in with what he is proposing in terms of its extension and its further extra-territorial application?
Lord Thomas of Gresford
When British service personnel operate abroad and are stationed abroad, there is an agreement made with the Government of that particular country. A protocol is brought about whereby decisions can be made according to the machinery agreed in that protocol about whether a person committing an offence in, for example, Kenya, should be tried by the local courts or by court martial. Obviously, that would apply to all cases of offences that are committed in Kenya which would be contrary to its law. In all probability, as has happened in Germany, very much would depend on whether the local population was involved. For example, under a protocol with the Kenyan Government, the rape of a Kenyan woman would almost certainly be tried in a Kenyan court. On the other hand, if it involved personnel who were on duty there together, it would almost certainly be dealt with under the protocol by the service disciplinary system. I am proposing that if it amounts to a serious sexual offence, or an extra-territorial offence such as I have described, it could be heard in this country.
Lord Tunnicliffe
Amendments 11 and 12 were Amendments 15 and 16 in Committee. I have reread the debate and do not note anything, other than Kenya, that has been added to them tonight. They go to the essence of the scope of military law. We were not persuaded to support them in Committee and we will not do so now.
Lord Thomas of Gresford
My Lords, I am very grateful to the Minister for his detailed and considered reply, and indeed for the very helpful conversations I had with the Bill team earlier this week. I am persuaded by the Minister’s argument and therefore beg leave to withdraw the amendment.
Armed Forces Bill
Lord Thomas of Gresford Excerpts(8 years, 2 months ago)
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Lord Thomas of Gresford (LD)
My Lords, there is no limitation on serious criminal cases, and that is part of the criminal law. In this area, I think of the war crimes that, until very recently, were still being brought forward relating to the Second World War as a result of investigations into the actions of German soldiers in prison camps and elsewhere. The thought that that type of case would be barred through limitation would have a very unfortunate effect on the victims of the Holocaust, who feel those crimes so strongly, and rightly so.
As a result of the debates we had on Tuesday, and this debate, my view is that the clever and ingenious lawyers in the Ministry of Defence should be thinking about putting the concept of combat immunity into some statutory form, to define the boundaries of it so that commanders who are engaged in warfare know that if they are in a combat situation they do not have to worry about criminal civilian law affecting them personally, and so that the soldiers involved do not subsequently face criminal charges as a result of their conduct in the clash of arms—the warfare itself. But “military operations” as in the amendment can cover such a wide area and I do not think that we should go against the whole thrust of the common law and the whole purpose of the criminal law by an amendment of this sort. There are other ways. What is combat immunity? What are the boundaries? They may be fuzzy at the edges but I am sure they are capable of statutory definition.
Lord Brown of Eaton-under-Heywood
I do not want to be tiresome but combat immunity, as I understand it, has never applied in the context of criminal law at all. It is a purely civil law concept.
Lord Thomas of Gresford
Perhaps it could be used as a criminal law concept. Perhaps the lawyers would like to think about it. I follow what the noble and learned Lord says on that.
The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, this amendment would introduce a time bar on bringing prosecutions against members of the Armed Forces, shielding them from prosecution for their actions while engaged in military operations outside the United Kingdom. The time bar would apply to their acts where more than 20 years had passed since those acts took place.
It is important to be clear, as noble Lords have observed, that the amendment would prevent personnel being prosecuted under either the service justice system or the civilian criminal justice system. It would cover all offences, not only against civilians or prisoners of war but against members of our own Armed Forces; for example, if evidence eventually came to light that a soldier had murdered another soldier while on operations, there could not be a trial if more than 20 years had passed.
I have much sympathy with the reasons that I know underlie the amendment. If criminal allegations are raised many years after the events in question, witnesses may be dead, memories may have faded and documentary evidence may have been lost. Indeed, those difficulties can be encountered even after a few years, never mind many years. However, I was grateful for the comments of the noble Lords, Lord Tunnicliffe and Lord Thomas of Gresford, and the two noble and learned Lords, among others. Members of our Armed Forces engaged in military operations must be subject to the rule of law and I cannot support a blanket ban on prosecutions of members of the Armed Forces after a stated period.
As the Committee is aware, the Armed Forces Act 2006 contains a system of service law that applies to members of the Armed Forces wherever in the world they are operating. This makes provision that a member of the Armed Forces commits a service offence if he or she commits any act overseas which would be an offence under the law of England and Wales were it done here. I am afraid I cannot see on what principle we should make an exception from the criminal law for those in military service overseas.
It is worth emphasising that, in both the civilian and service justice systems, when considering any case prosecutors are required to consider not only whether there is sufficient evidence to provide a realistic prospect of conviction but whether a prosecution is in the public interest. It has never been the rule that a prosecution will automatically take place once the evidential stage is met. Similarly, in the service system prosecutors are required to consider whether a prosecution is also in the service interest, including service interest factors. Clearly, if the offence is more serious, the public interest for a prosecution is more compelling.
It should also be noted that before a former member of the Armed Forces can be prosecuted for a criminal conduct service offence in respect of things that they did during their service, the consent of the Attorney-General must be obtained if more than six months have passed since they left the Armed Forces.
I am of course aware of the concerns expressed by the noble and gallant Lord over investigations by the service police of events in Iraq many years after those alleged events. In many of these cases, the allegations were not made immediately—for reasons which are not always clear. I assure the noble and gallant Lord, and the Committee, that intensive efforts are being made to bring these investigations to a conclusion as soon as possible. We are investing considerable resources in this area. We are looking at streamlined processes to ensure that those cases without substance are weeded out quickly, and so on. The Iraq Historic Allegations Team is doing an excellent job given the difficulties it faces. It has completed a number of investigations.
I do not believe for a moment that this process will still be in progress when the 20-year limit envisaged by the new clause would be reached. Indeed, the only theatre in which, so far as I am aware, criminal investigations or prosecutions of soldiers or veterans are in progress relating to events from more than 20 years ago is Northern Ireland, which is excluded from the scope of this clause because it covers only operations outside the UK.
I also assure the Committee that, while the Ministry of Defence will discharge its duty to provide any information in its possession relevant to such police investigations, it will also provide effective support, legal and pastoral, to veterans who may find themselves facing investigation for matters related to their duties. Although, I repeat, I sympathise with the concerns behind the new clause, in principle it would be wrong to provide an exception to the criminal law for members of the Armed Forces serving overseas in this way. On that basis, I hope that the noble and gallant Lord will agree to withdraw his amendment.
“Inquests
Every violent or unnatural death of every person subject to service law whether within or outside the United Kingdom shall be reported as soon as practicable to a coroner who shall determine by what means and in what circumstances the deceased came to his death.”
Lord Thomas of Gresford
My Lords, in 2006 I moved an amendment in these terms to the 2006 Bill with the support of my noble friend the late Lord Garden. At that time, inquests involving the services were very much a controversial area. There were long delays and lots of families were very concerned about the fact that these inquests took such a long time and seemed to be so unsatisfactory. At the same time, coroners were making some very trenchant criticisms. Lord Garden and I thought it would be right to have a statutory duty making it quite clear that the coroner should have jurisdiction in this area and that cases should be reported to him by commanding officers, in the terms of the amendment that I put forward.
That amendment was not accepted, but after that the Army itself became concerned and set up Project Ajax, and in 2008 the Defence Inquests Unit was formed. It is interesting to note that Mr Mike Venables, the head of that unit, said that,
“the MOD was struggling with how we handled inquests because there was no focus … The families were dissatisfied by the service they were getting and by the way that inquests were working. Many didn’t understand why we were having them or what they were for”.
The unit went to work. It seemed to have a number of aims. On the first aim, Mr Venables said:
“Our role is to support bereaved families”.
Its next role was to train coroners and explain the particular circumstances in which a death had taken place, to identify and locate military witnesses, to furnish reports and information to the coroners and to organise a familiarisation event—annually, as it turned out—so that coroners would know what vehicles and kit were used on operations and what mine clearance drills were, and could experience the weight of packs that troops carried, and so on.
Case officers under the unit read through the Royal Military Police reports, Special Investigations Branch reports and witness statements before handing them to the coroner. Colonel Newell, who was in charge, said:
“We read through everything first and redact them for security—which is something that they do worry about so we explain that … We point them”—
the coroners—
“to what we see as the salient information and suggest who we see as the key witnesses who should be called to the inquest. We provide them with a Rolls-Royce service”.
The next function was to provide support to witnesses. Mr Venables said:
“It can be a hugely difficult experience for some witnesses … we don’t…coach them. All we say is, ‘you’ve got nothing to fear from this, all you have to do is tell the truth’”.
So the unit seems to have various conflicting aims.
The purpose of my tabling this probing amendment today—in identical terms to the one we tabled in 2006—was to inquire into how the system is working and whether it is satisfactory. Case officers under the unit appear at inquests for the Ministry of Defence, so not only are they training and advising coroners, and redacting witnesses’ reports; they are actually appearing for the Ministry of Defence at inquests. That must cause concern to families who wonder whether their purpose is to protect the Ministry of Defence from the sort of trenchant criticisms that, as I indicated, were very much abroad in 2006 when we first approached this problem.
I will be interested to hear the Minister’s response. I may not have expressed quite clearly the full scope of my intention in tabling this amendment—I apologise for that—but I commend it to the Committee.
Earl Attlee
My Lords, I am grateful to the noble Lord, Lord Thomas of Gresford, for raising the issue of inquests. He has raised some important issues.
For many years, I have not been able to give my counsel on this matter because sadly we were taking many casualties on operation and, therefore, the timing was completely wrong. I must stress that I have no intention of pressing any of my own amendments relating to this issue at a later stage—I am merely giving my counsel—but I intend to compete with noble Lords who are lawyers in terms of the amount of detail that I will give. I accept that matters have improved with these inquests, but I am still not convinced that holding detailed inquests into fatalities incurred on operations overseas is likely to reduce casualties or be a good use of resources. I hope the Committee will allow me to explain why before calling for the silken rope.
All members of our Armed Forces should be highly motivated. Most of them will have a secret dream of being able to have strategic effect, even if it involves a significant risk to themselves. By “strategic”, I mean an action they take that significantly alters the outcome of the campaign. That is why many servicemen with particularly good qualities seek selection for Special Forces. Their incentive is that they are very likely to be able to have strategic effect at some point. One can also have strategic effect by denying the enemy’s strategic effect. That is what the off-duty serviceman did in France in that train attack, and it is an issue to which I will return at a later stage.
I understand that, prior to the mid-1980s, it was not necessary to have an inquest into an overseas operational fatality. The law changed, but it did not matter, because there were very few hot operations. If we had ever engaged in conflict with the Warsaw Pact, we would not have been worrying about inquests. I am very sorry, but I think that these inquests into operational fatalities have limited utility. If we think that we need inquests to learn from what went wrong, we are deluding ourselves. As I touched upon in the human rights amendment on the first day of Committee, quite often the deceased, or someone closely involved, made a misjudgment or a mistake. That is the nature of military operations. As I said then, this makes it extremely difficult for the MoD or the chain of command to explain these facts, because we would be shocked if those on the ground at the time were blamed. According to Wikipedia, in Sergeant Roberts’s case, very unfortunately, the soldier who fired the coaxial machine gun on the Challenger tank did not know, or he forgot, that there was a parallax effect in short range. Does anyone seriously think that that error would not have been immediately reported back to the Armour Centre in Bovington and compared with the existing training plans? Of course not.
One inquest that I read about centred on electronic countermeasures. The feedback cycle in this area is extremely fast: days, if not hours. It must be extremely demoralising for the experts—sometimes, I think the term “boffin” is rather more complimentary—at the Defence Science and Technology Laboratory, to read these unfair criticisms in the press. The reality is that we have a fabulous capability in this area and we should be very grateful. Think how demoralising it must be for the Taliban to take the very real risk of planting an IED, only for the initiation system to fail for some mysterious reason at the crucial moment.
Some argue that we need the coronial system to identify any defects in training and procurement. I touched on this during the first day of Committee and remind your Lordships of my inverse law: the attention and scrutiny applied to a fatality on operations is inversely proportional to the number of fatalities taken. That is why I believe that inquests into operational fatalities have limited utility. I also remind the Committee that they soak up considerable amounts of staff effort that could be better spent on prosecuting the campaign. I fear, however, that this is nothing compared to the negative effect.
In order for the enemy’s leaders to motivate their own side to make a very risky or even suicidal attack on coalition forces, it would be an enormous help to them if they could show that the attack would have strategic effect. We cannot avoid the MoD making the formal announcements of casualties or fatalities: we know perfectly well that it would be deeply damaging to mislead the nation regarding the level of casualties that we are taking on an operation.
What we actually do is have an exercise to publicly blame Ministers and then the chain of command for things that have or are alleged to have gone wrong when, for reasons I explained, they cannot effectively defend themselves without acting improperly and damaging morale. It should also be remembered that service personnel in theatre read newspaper reports and have access to the internet. It must be quite easy to damage confidence, especially that of more junior personnel. Reports of discord can also be shown by the enemy’s leaders to their subordinates to motivate them to make an attack which they can, frankly rightly, claim will have strategic effect.
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.
Earl Attlee
My Lords, the noble and learned Lord, Lord Hope, talked about training fatalities. My view is that all training fatalities, wherever they arise, should be subject to an inquest. I think there is a far bigger problem with training accidents than with operational fatalities. Those occur where the enemy has a better position on you and sadly some servicemen are unlucky, but with a training accident, it is quite likely that something has gone wrong.
Lord West of Spithead
In the Navy, the rules are not quite so direct, but you are given guidance to be sure that you do not raise issues that would become extremely difficult. But I always felt that that gave you quite a lot of scope. As we know, rules are for the obedience of fools, and one was able to do quite a lot in those letters.
Lord Thomas of Gresford
I am grateful to the noble Lord, Lord Touhig, who drew my attention to a Scottish television report of September 2012, which says:
“Investigations into the deaths of Scottish military personnel killed abroad will be able to take place in Scotland for the first time from later this month. Up until now inquests into the deaths of servicemen and women have often had to be heard in England, forcing their bereaved families to travel long distances to take part in the hearings. But a change in the law means that from next Monday, September 24, the inquests will be able to be held north of the border”.
The mechanism is that the chief coroner, Peter Thornton, can,
“recommend to the Lord Advocate … that an investigation be transferred to Scotland”.
It arises out of 14 servicemen dying when their Nimrod crashed in Afghanistan; they were based in Moray, at RAF Kinloss, and the inquests were held in England.
Lord West of Spithead
We have gone down the route of the coronial system. As Plato said, only the dead see the end of war. Sadly, I am afraid that at some stage we will be in a war when we lose thousands of people, and I have no idea how the system will work at that stage or what the thought processes are about that.
Earl Attlee
I do not really expect the Minister to give me a precise figure, but I am very grateful to him for saying that he will reflect on what I have suggested. I do not expect him to get particularly far, but I am grateful for his attitude to my speech.
Lord Thomas of Gresford
My Lords, those of us who were around in 2009 will recall the great controversy in the Coroners and Justice Bill about whether we should have a chief coroner. Eventually the argument prevailed that we should have a chief coroner. We have a highly competent, able and experienced person in the shape of Peter Thornton. I am sure he will deal with many problems unless and until the system is overwhelmed, as the noble Earl suggested. I am very reassured, and I am grateful to the Minister for his careful response which brings me up to date on where we stand with the inquest system. I will reflect on what he said to see whether there is any necessity for me to take this issue further. I beg leave to withdraw the amendment.
Baroness Smith of Newnham
My Lords, I welcome the probing amendment from the noble Lord, Lord Hodgson. He is absolutely right to raise one of the issues that upsets huge numbers of the British population in any military intervention—the danger of civilian casualties. The idea that that should be added to the report that is brought quarterly is clearly welcome. I very much hope that the Minister will be willing to look into that. One advantage of the United Kingdom entering into the war in Iraq and over Syria was precisely that we have precision weapons. The suggestion that we have not caused any civilian casualties in the past three months is clearly welcome.
I realise that this is only a probing amendment, but I am slightly concerned that the noble Lord suggested that for the quarterly report there should be working definitions of the terms “civilian” and “combatant”. How do the UK Government define those terms? I would hope that it would be something in the glossary, not something that would be redefined every three months. There is a suggestion that perhaps the United States has a rather more generous definition of combatant that we would in the United Kingdom, and that males over the age of 15 are seen as combatants if they are in certain areas. I would very much hope that that is not a definition we would ever consider.
This is a welcome probing amendment, and we would very much like the definitions. My noble friend Lady Jolly has also asked whether the Minister could tell us what work has been done to assemble figures so far.
Lord Thomas of Gresford
The Minister will recall that I asked a Question on this topic two or three weeks ago. I support the amendment proposed by the noble Lord, Lord Hodgson. There is a danger, when we are concerned with a definition of UK deployment that includes,
“any airstrikes carried out by UK personnel operating manned or unmanned aircraft”,
that we may forget that we are part of a coalition under joint command. It is a joint operation and, in such a situation, we cannot say that we are responsible only for these bombs but not for other bombs dropped by other countries under the same command as ourselves. This country is bound legally and morally by the activities of all those operating in the coalition. We carry that responsibility for the deaths and maiming of civilians, whoever’s bomb it is. Civilians do not care whose bomb it is if they are maimed. If it is under joint command, we have a responsibility.
Lord Touhig
My Lords, living as we do in a time when news reporting is constant, continuous and around the clock, the public rightly expect Governments to be the same, especially when reporting on conflicts in which our Armed Forces are engaged. Parliament and the British people have the right to be kept informed about not only what happens to our forces but also the impact our actions might have on civilians in the conflict zone. The Government currently report on civilian casualties in a number of different conflicts that we are involved in, including Iraq, Syria, west Africa—the Ebola response—and Afghanistan. That is the right thing to do. It demonstrates openness, transparency and proper regard for the loss of life that inevitably occurs in conflict, whether military or civilian deaths.
None of us who supported the Government’s decision to use air strikes against ISIL in Syria did so lightly. I have not spoken to a single person who did not have concerns that there would be casualties among the civilian population. To date, the Government have stated that there have been no reports of civilian casualties as a result of our air strikes. Having said that, I look forward to hearing from the Minister what guidelines the Government set themselves for collecting data and reporting on casualties, whether military or civilian, in any conflict in which we are currently engaged.
On this side, we certainly welcome the aspirations that motivated this amendment but we have doubts that it is the best way to deal with the issue of reporting on civilian casualties—I am grateful for the excellent briefing on this that I was given earlier today. For example, the amendment addresses the matter of reporting civilian casualties caused by air strikes but says nothing about reporting civilian casualties caused by ground forces. Often, ground operations are in play as well as air strikes. More than that, if we are to enshrine in primary legislation the reporting of civilian casualties in conflict, this is not the right vehicle to do so. Some might argue that reporting on civilian casualties is not simply an Armed Forces issue alone but has wider foreign affairs and international development implications. If that argument were accepted, we would need a cross-government input and approach to legislation to achieve the objectives that would be set out.
We certainly welcome the opportunity that this amendment gives us for debate and we have had some important and useful contributions. I look forward to the Minister’s reply and hope that we will have regular reports to Parliament on the conflicts, especially details of the number of casualties—even where there are none. That is very important. We welcome the opportunity for debate that the amendment affords but in its present form we would not support it.
Armed Forces Bill
Lord Thomas of Gresford Excerpts(8 years, 2 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
“Membership of the Court Martial
(1) Section 155 of the Armed Forces Act 2006 (constitution of the Court Martial) is amended as follows.(2) In subsection (3)(b), leave out from “rest” to end of line and insert “may be drawn from all ranks who are qualified for membership and not ineligible under section 157.”(3) In subsection (4) at end insert “which may, in particular, provide that the persons specified in subsection (1)(b) be drawn from each and every branch of the armed services.””
Lord Thomas of Gresford (LD)
My Lords, I start by reminding your Lordships that at Second Reading I expressed my concern about the reputational damage that might be done to the forces’ disciplinary service by the possibility of future cases attracting the sort of adverse publicity that has occurred in the past. When we dealt with the 2006 Act we sorted out many of the problems that then existed, and the system was completely changed so as to reflect decisions made in the European Court of Human Rights about fair trial. I had no concerns about Sections 1 to 39 of the Act, which dealt with what I regard as disciplinary offences—indeed, “discipline” and “offences” are headings in Part 1 of the Armed Forces Act 2006. They might be offences such as assisting an enemy, mutiny, desertion, insubordination, neglect of duty, offences against service justice, hazarding of ships and so on. To my mind, those things were satisfactorily dealt with at that time.
However, Section 42 of the Act was concerned with criminal conduct. Repeating provisions in earlier service disciplinary Acts, it effectively made an ordinary criminal offence part of the service discipline system, so that:
“A person subject to service law, or a civilian subject to service discipline, commits an offence … if he does any act that … is punishable by the law of England and Wales; or … if done in England or Wales, would be so punishable”.
In other words, the whole corpus of the criminal law that is used in our ordinary criminal courts was imported into the service disciplinary system.
At that time, I moved certain amendments having regard to Section 42 which I hoped would mirror the proceedings that happen in the Crown Courts of this country when such criminal offences come before those courts. I do not apologise for repeating some of those amendments today.
We were concerned particularly about justice between state, the prosecution and the defendant, but there is another element in it which I think was of less significance at that time than it is now; that is, the position of victims. We have seen such adverse publicity—including, for example, the Sergeant Blackman case—which is damaging to the service disciplinary procedures. It is very often proceedings or publicity that is sought by the victims of various offences.
I want to take a step back to look at the police and the banks in this context. As an example, PC Harwood was prosecuted for manslaughter in the Old Bailey for the death of Ian Tomlinson, the person whom he struck in a demonstration in the City of London in 2009. If that prosecution had been carried out by senior officers in the police and they made the decision that he was not guilty of the manslaughter offence—as he was found by an ordinary jury in the Old Bailey—I am sure that there would have been very great public concern. Had the officers who were concerned with the death of Jean Charles de Menezes in 2005 been prosecuted before a panel of senior police officers, there would have been a public outcry.
Some years ago under the Labour Government we were concerned with attacks upon the jury system. There was a strong call at that time for there to be special juries consisting of City people—accountants, bankers—who would understand the workings of the City in a way which an ordinary jury, it was argued, could not possibly comprehend. That was before the 2008 crash. Bankers have become rather less popular than they were in those days. One can imagine the public outcry that would have followed if bankers had been asked to determine the guilt or innocence, the honesty or dishonesty, of one of their own kind.
I know that there are differences, but I use the police and bankers to illustrate public perceptions of justice that is carried out by the services. I do not agree that there is injustice, but I suggest that there is a lack of confidence among the public and victims regarding the way that their concerns may be treated in the military court martial system. I declare an interest as the chairman of the Association of Military Court Advocates. I have had experience of serious murder cases and so on in the services and I have every confidence in the judges and those who appear in those court martial courts. However, I am concerned about public perception.
There are two ways in which one can approach this. One can say, let us change the system so as to make it closer to the Crown Court. Or one can say, take the serious offences away from the court martial system altogether. I am following both as alternatives in the amendments I am putting forward. I am now speaking to Amendments 1, 2 and 3 and draw your Lordships’ attention to them.
The first amendment would widen the pool of those who can sit on the panel that decides guilt or innocence in a court martial. Instead of having officers and perhaps one warrant officer—the most senior of the other ranks—sitting on a court martial as at present, it should be open to all ranks. There are those who are used to looking at the forces as a family with a familial feeling towards its members and who feel that officers are responsible for their men, as they know them and they know the circumstances, and that they should be the people who decide and so on. I know that that is the system but there is nothing particularly revolutionary about having all ranks sitting on courts martial. Although there are criticisms of the American system of courts martial, voiced in particular by my opposite number in the United States and the national military justice organisation that he heads, nevertheless in 1952 it was decided that other ranks could sit on courts martial where a defendant asked for that.
It seems to me that the time has come to widen to other ranks the people who can appear in courts martial, so Amendment 2 says:
“A person is qualified for membership of the Court Martial if he or she is a serving member of the armed forces and is subject to service law”.
It does not have to be an officer or a warrant officer; people can be drawn from a wider pool. It is my view that that would give rather more public confidence in the system of courts martial than the top-down system that we have at the moment, and have always had, of officers and the warrant officer sitting in judgment.
Noble Lords will see that Amendment 3 deals with another aspect. Whereas in the ordinary courts of this country where we have a jury sitting, guilt is established either by the unanimous verdict of the jury or by a majority consisting of no less than 10:2 or, if the jury has dropped to 11 members, 9:2, the system in the Armed Forces is, and always has been, that it is determined by a simple majority. Therefore, if five sit on the panel, a person can be found guilty by 3:2, and, if seven sit, it can be 4:3. The way in which the panel votes is never made public. It is never said that this is a majority verdict; a simple majority verdict is returned. Consequently, in Amendment 3 I suggest that we should change the system and that, where there are not fewer than seven members of the court, five should agree on the finding, and, where there are five members of the court, four should agree on the finding.
I repeat that the current position is that the judge advocate has no vote. If the finding is one of guilt, the president should state in open court the numbers who agreed and dissented from the finding and the panel should have time, as does an ordinary jury, to consider reaching a unanimous verdict before coming to its conclusion. At the moment, it is theoretically possible for the panel to retire and for a verdict by a simple majority to be passed immediately, with the panel returning to court and delivering the verdict. If the verdict is one of guilt, the defendant does not know that there were those who did not accept the finding.
New subsection (5) proposed under proposed new subsection (2) in Amendment 3 is also important. Currently, the panel with the judge advocate taking a part determines the sentence, but we have got to a situation where sentencing is so complex that I suggest that the judge advocate alone should pass the sentence—there are so many options and precedents that it should not be decided by the panel—after consultation with the members of the court martial.
Lord Thomas of Gresford
My Lords, I am most grateful to the Minister for his lengthy and very careful response to what I have put forward. I was very amused to learn that rules had been passed that court martial panels may be drawn from across the services. When I proposed that precise amendment to what became the 2006 Act, I was seized by three noble and gallant Lords in the corridor, one of whom said that I should be shot for making such a suggestion.
Lord Thomas of Gresford
I am sure that the noble Lord, Lord West, would have added a keel-hauling or something of that nature.
I am grateful to the noble Lord, Lord Tunnicliffe, for his support for my amendments. No doubt we will have some fruitful discussion on a way forward. I agree with the noble Earl, Lord Attlee, that an investigation into how court martial panels deliberate would be apposite; it is a good suggestion. There are all sorts of problems around it, and if the public do not have confidence in the court martial system, which is what I believe and the thrust of what I am saying—that although I personally have confidence, the public do not—such an investigation would in one way or the other be very good.
However, the noble Earl may have misread my amendments. I am not looking for leniency. I have no reason to suppose that court martial panels that consisted of other ranks would be more lenient; I rather agree with him that they could well be tougher. What such panels would be is more understanding. They would appreciate things more. I know that the Armed Forces regard themselves as a family and I concede to what the noble Lord, Lord West, has said, but there is a gap in understanding between the other ranks and the officers of what motivates people. That is where an extended panel would be useful, helpful and more just. It is not about leniency at all. The noble Earl should not think that I am a particularly lenient person. I have sat as a judge and prosecuted many times, and leniency is certainly not a part of that.
I tend towards the thrust of the noble Earl’s comments, supported by the noble Lord, Lord West, that it is all about discipline. The fact is that if anyone is convicted at court martial of a serious offence, he is out and he loses his pension rights. It is not a question of discipline for a serious offence. As I indicated at the beginning, I have no objection to the court martial system in relation to Sections 1 to 39 of the 2006 Act, which cover mutiny, absence without leave, desertion and issues of that sort. But where I think the court martial system lacks public confidence is when it deals with other criminal offences which are normally dealt with in the Crown Court. The maintenance of discipline is not particularly apposite, in my experience. People who are convicted of serious offences, as I have said, are thrown out.
Many of the Minister’s remarks were addressed to the issue of sentencing. I do not believe that the sentences of the courts martial are particularly wayward, as we have a very good system of judge advocates who assist them in their deliberations. But the noble Earl will know that the current Judge Advocate-General has argued many times—as he did in 2006 before a committee of the House of Commons—that sentencing should be a matter for a professional judge, as judge advocates are, and not left to a panel of officers for whom it may well be their very first meeting with the criminal law in any context. They are not experts. They are appointed to a court martial board—perhaps the noble Lord, Lord West, has more experience of courts martial than most people, from all points of view—but most who sit on a panel do it perhaps once or twice. The president of the court is a more permanent official, of course, but a judge advocate is a professional judge who goes on training course after training course, sits in the Crown Court when not sitting as a judge advocate and has the fullest experience of sentencing and what is appropriate in a particular case. I do not suggest that he should sentence when uninformed himself, nor does the Judge Advocate-General, but that he should consult the members of the panel, listen to their views and take into account the maintenance of discipline, if that is what is required in the case.
Earl Attlee
My Lords, I am not quite sure why the panel should go outside the guidance of the judge advocate. For me, the noble Lord, Lord Thomas, has not produced a convincing case why it should do that. Why would it not adhere to the advice of the judge advocate because, as the noble Lord told the Committee, it is very good advice?
Lord Thomas of Gresford
I am not going to recount anecdotes but it is not necessary for the panel to follow the advice of the judge advocate who is sitting in a particular case if it chooses not to do so. Very often when a person is found guilty, the sentence may not be obvious. It may be a choice between various courses such as imprisonment, a sentence that does not involve imprisonment, or sometimes whether someone should go back to Colchester for retraining—a disciplinary approach—so there are different possibilities.
Earl Attlee
My Lords, surely the choice between prison and detention—in other words, “soldier on”—is a purely military one, which means that the officers on the panel are best placed to make that judgment of whether they can keep the serviceman in. In fact, some who go off for a period of detention turn out to be very good servicemen later on, as I am sure the noble Lord recognises. This is a purely military decision.
Lord Thomas of Gresford
I am not suggesting that the judge advocate should act entirely without the advice given to him by the panel. But where should the responsibility lie? That is the issue. I do not think that responsibility for sentencing—a highly complex and professional job for which people train for years, first as barristers or solicitors and then as judges—should be in the hands of people who have in all probability never been in a criminal court in their lives. Suddenly, they are faced with a particular problem and may have all sorts of views about it. Nor should it be thought that intellect and intelligence rest only with the officer class, as the noble Earl suggested. That is not necessarily so. Sitting on issues of fact, a panel composed across ranks would come to a better and safer conclusion which is more acceptable to the public. We cannot go on having demonstrations outside this House by present and retired members of the Armed Forces against the verdicts and findings of courts martial. You do not see that happening with Crown Courts but you see it with courts martial, and that cannot continue. I am concerned about the reputational damage to the services that such scenes show.
I will read all the detail of the Minister’s speech and come back to him about it but one or two points arose. For example, he stressed that a simple majority means that there is no need for a retrial. That may not be a very good thing. It may be that if a significant proportion of a panel hearing a case are not satisfied with the guilt of the defendant, there should be a retrial. The case should be put before the court and heard again. Retrials happen, not all that often, when juries are unable to reach a verdict in the Crown Court. They do not follow as of law; it is a question of the discretion of the prosecutor. I have stopped prosecutions after a jury had disagreed. “There is no need for a retrial” is not a mantra which sits very well with the Ministry of Defence.
“Restrictions on trial by Courts Martial
(1) Section 50 of the Armed Forces Act 2006 (jurisdiction of the Court Martial) is amended as follows.(2) In subsection (1) at end insert “save for—(a) murder;(b) manslaughter;(c) any offence under the Sexual Offences Act 2003;(d) any offence where the courts of any part of the United Kingdom have extra-territorial jurisdiction to try, determine or punish that offence committed abroad.””
Lord Thomas of Gresford
In moving this amendment, I will couple it with consideration of Amendments 15 and 16.
Perhaps I may go first to Amendment 15, which seeks to extend extraterritorial jurisdiction in sexual offences. Since 2006, the problem concerning sexual offences has come very much more to the fore in this country and elsewhere. Some 18 months ago, I gave evidence to a committee set up by the Department of Defense in Washington where precisely this issue was being considered. My purpose there was to outline the system of court martial in this country, specifically in dealing with sexual offences. I and the Director of Service Prosecutions, and one or two other experts in the field, gave evidence about the British system. The following day, no fewer than 24 generals and above—I am not quite sure what the term is—were giving evidence to that committee. They were headed by the chief of the general staff of the United States. Unsurprisingly, the committee came out in favour of the generals and not in favour of the British system of court martial.
Sexual offences are a matter where there is not, at the moment, extraterritorial jurisdiction. Amendment 15 has been tabled simply to give to the ordinary courts in this country—the Crown Courts—the jurisdiction, if my Amendment 4 were accepted, to deal with sexual offences in this country. It has no other purpose, so the important amendment is Amendment 4.
Prior to the 2006 Act, courts martial in this country had no jurisdiction to try cases of murder or manslaughter within the United Kingdom. Courts martial could try such cases if they were sitting abroad but not in this country. One of the amendments to the system made in 2006 was to give courts martial sitting in this country jurisdiction over murder and manslaughter.
The four types of offences that I have set out in subsection (2) of the new clause proposed in Amendment 4 are the most serious in the calendar. Murder and manslaughter are obvious. The offences under the Sexual Offences Act to which I have referred—I quoted specific clauses from the Sexual Offences Act 2003—are given extraterritorial jurisdiction by my Amendment 15 so that they can come before the courts of this country under Amendment 4.
Subsection (2)(d) of the proposed new clause deals with war crimes—torture and matters of that sort—where there is existing extraterritorial jurisdiction. I have been involved in a number of murder cases that have occurred abroad, in Iraq and Germany, and to my mind they have been unsatisfactory. I do not quibble with the results but I find it unsatisfactory that those trials should be by court martial. We are dealing with the most serious of cases—those that cause the greatest problems for the public—where public perception is either, if a person is acquitted, that he would be acquitted by fellow members of the armed services or, if he is convicted, that the officers have convicted him for murder whereas a British jury would not have done so. That is the thrust of the campaign about Sergeant Blackman, but there have been other cases where similar feelings have been expressed by the public.
I think that we have come to the end of trying these cases by courts martial. If a murder happens abroad—in Afghanistan, Iraq or Germany—the case is brought back to this country. Cases have not been brought back from Germany because we have been in Germany but we are retreating from there. Our Armed Forces are pulling back in November, so we can forget about that. The case of Martin, to which I referred at Second Reading, is a case in point. The 17 year-old son of a soldier—not a soldier but the son of a soldier—was brought back to this country, kept in Colchester prison and returned to be tried for murder in Germany by a court martial. Although the House of Lords Judicial Committee could not interfere as an abuse of process, as I said in my Second Reading speech, the European Court of Human Rights said that the trial was not fair. We cannot have that.
Let me go back a little. Courts martial abroad could try cases of murder and manslaughter because of the difficulty of travel. Back in the 19th century, if troops were deployed abroad, it would be quite impossible to hold somebody for trial by the civil courts here until such time as the forces returned to this country. Consequently, courts martial were necessary for trying murder and manslaughter abroad rather than having local courts do it, where the ability of the defendant to understand what was going on—never mind the quality of the justice proffered—was always an issue. That is not the case now. The practice is to bring them home and to try people accused in Iraq of murder, as in the case of Baha Mousa, which was tried in Bulford, or the case of the paratroopers who were tried at Colchester, or the Bread Basket case, which was tried in this country. The practice in serious cases is to bring people back. Where we are dealing with sexual offences, which are extremely delicate and difficult, and today attract sentences of up to 35 years, those too should be in the ordinary civil courts of this country before an ordinary jury.
I do not accept that an ordinary jury trying a military case is incapable of understanding the ethos, aura or context in which a particular offence has been committed. Juries every day may be trying a person for murder in a context with which they are completely unfamiliar. Whether it is an incident in the back streets of Birmingham or a fraud involving the City, juries cope. It is the duty of the prosecution in the case so to clarify the issues and the context that a jury is fully aware of the significance of the evidence that is put before it.
Things have changed. Juries can be really quite different. Not so long ago in Southwark Crown Court, for example, it turned out that a member of the jury was the sister of a High Court judge and of a Member of this House, and her father had been a Home Secretary. We did not know this; it just slipped out at the end of the case. Juries are an amazing cross-section of people who represent people and who each contribute to the decision that is taken. I have every confidence in Crown Court juries. Serious cases should be brought back and tried here. That is the purpose of my amendments.
However, Amendment 16 is different, as it is an alternative. If my submissions to the Committee are not acceptable to the Government, they ought to consider my Amendment 16 as an alternative. This is where a person who is alleged to have committed a service offence when on active service in operational circumstances can elect to be tried in the ordinary courts of this country. What is the purpose of that? The main purpose—really the only purpose—is that people and the media cannot criticise a Crown Court jury or, if the person has decided that he wishes to be tried by court martial but has been given the chance of a trial by the Crown Court, the system cannot be criticised for failing that individual and giving him the justice that he seeks. Amendment 16 contains an alternative approach that an accused person could elect to be tried in a civilian court. That would remove much of the sting of the criticism, which, as the Committee has heard, is my concern.
Lord Hope of Craighead (CB)
My Lords, I would add a word to what the noble Lord, Lord Thomas of Gresford, has said, mainly because he mentioned my name at Second Reading. I am afraid that this is one of two judgments for which I was responsible. He has been kind enough to say that this judgment is not subject to criticism on the grounds on which it was made. He summarised it quite accurately as the case of a civilian, a 17 year-old boy in Germany who was, I think, the son of a serviceman, and because of that was subject to military discipline in Germany. The noble Lord has narrated exactly the circumstances whereby the civilian spent time in Colchester. I think that he was sent back for trial by court martial in Germany.
My point—and the Minister may already have this in mind—is that one is dealing with a crime committed in another country. In the case of Germany, there is a very active and much-respected criminal justice system. The Germans might well have wanted to assert themselves, as this was a crime committed on their territory. However, under arrangements which we had in place, it was possible for us to say that this was a military matter which could be dealt with under our court martial system. The Germans were prepared to concede jurisdiction to the system which we had under military law.
I suspect that the situation is quite different in Iraq. I do not know what the criminal justice system is like there, but I have no doubt that we would insist that we bring people home. We do not have the same problem of maintaining a diplomatic dialogue there, which we certainly would have with the Germans if this amendment were to be carried. We must be rather cautious with this amendment in considering the various jurisdictions in which offences may be committed abroad. We would need be absolutely sure that these jurisdictions were prepared to concede jurisdiction to us under the extraterritorial system, when they could perfectly well assert their own right to try a case before their own civilian courts.
I dare say that the Minister has this carefully in mind but it seemed, recalling as best I can the circumstances of Martin, that that was part of the background. Of course I cannot take anything away from or add anything to the judgment which I wrote, but I think that it is proper to say that when I first saw the case I was taken aback by the fact that this boy was going to be tried by a court martial. It seemed to be a rather extraordinary thing to happen. However, having studied the legislation and been informed about the background, in the end I was satisfied that it was proper that the court martial should be allowed to proceed. There is this additional element to the issue, which I do not think that the noble Lord touched on in his address but which I respectfully suggest we should bear in mind in considering whether the line that he is urging us to take is a sound one.
Lord Thomas of Gresford
Does the noble and learned Lord agree that Martin could have been tried in this country and that it was not just an arrangement between the German authorities and the British military authorities that caused his trial to be in Germany? I think that it was a decision of the Attorney-General.
Lord Hope of Craighead
Of course we had extraterritorial jurisdiction, but the fact that the crime was committed in Germany was an important factor in deciding the proper course for bringing the case before a tribunal to try the boy for the offence. One has to be careful about the local jurisdiction; I seek to emphasise that point.
Lord Thomas of Gresford
I am most grateful again to the Minister for his careful outline of the Government’s position. I shall take up one point about the right to elect. At the moment, as I recollect, a serving soldier has the right to opt for trial by court martial as opposed to being dealt with by his CO—I have some support from my rear on that proposition—so the concept of opting for one mode of trial rather than another is already in the service discipline system.
The Minister referred to the limited scope of Amendment 16. It is confined—I checked the wording myself a moment ago—to,
“a person subject to service law”,
committing an offence or alleged to have done so,
“when on active service in operational circumstances”.
It would not cover the situation of a soldier who committed an offence who was not in such circumstances. For example, I do not think that that description would apply to anyone who is currently serving in Germany.
Having mentioned Germany, I refer to the contribution of the noble and learned Lord, Lord Hope, to say that yes, there have been agreements on jurisdiction where the Army is abroad, but they are coming back. The situation is quite different. We will not have all the substrata of support and so on in Germany that we have now. I imagine that these agreements will come to an end—is it November of this year when the forces are returning from Germany?—so I suggest that is not a point against the proposition that I am putting forward. So far as the other matters are concerned, they again require me to read what the Minister has said and before I do that, I beg leave to withdraw the amendment.
Baroness Jolly (LD)
My Lords, my first point was going to be the one that the noble Baroness, Lady Gould of Potternewton, has just made. It is not helpful to compare with other sectors. All our Armed Forces pretty much live cheek by jowl with each other. That is not the case elsewhere: if you work in a bank, you go home at five and come back in at nine. It might tell you something but it is not hugely helpful.
I am happy to support Amendments 5 and 6. There are absolutely no circumstances where either rape or sexual assault are acceptable—we have heard talk today about many high-profile cases that are now in the public domain so I shall not go any further there—and we know that at the very highest level the service chiefs would agree with that statement. Last summer the MoD launched the “Don’t Kid Yourself” campaign, so there is acknowledgement and awareness. However, the real commitment at the top has to be to changing attitudes as well as behaviour, which will take time. It takes evidence to check progress and offer confidence.
The point was made that it is not only women who can be victims, and there is possibly a different reaction to men who have been the victims of sexual assault or rape from the reaction to women in the same circumstances. In the service environment, men might feel shame in a slightly different way from the way that women might feel it, and that needs to be factored in as well. A parent would need reassurance that their son or daughter was joining an organisation committed to the eradication of sex offences. Recruits and serving members of the Armed Forces need that reassurance too.
I turn to Amendment 6. To make all feel confident—and I think this amendment is about confidence—there should be no discretion for a CO to refer this to the relevant police force. They should not handle it themselves. Sexual assault is a crime, as is rape, and if there is any doubt it is far better for this to be investigated by the police, who have the experience, rather than a CO, who does not. It has been said to me that COs have been sent on training to do this. I wonder, were I or noble Lords’ sons or daughters to be raped, would we want the case to be investigated by someone who had done some training a year or so before but had not seen a case in the intervening time? We need someone investigating these cases who has not only training but experience and sensitivity. These are very sensitive issues, and the noble Earl, Lord Attlee, made that point as he was explaining his personal experience.
To keep records and publish statistics annually on these cases would enable the Government, the public and members of the Armed Forces to measure progress. It would not be just another task to do; it would enable us to measure progress and to highlight any areas of concern. The Minister in the other place, Mark Lancaster, said during the passage of the Bill:
“I am determined to make the data that we publish robust, consistent and accessible. To that end, I am actively considering how best to publish the data as an official statistic”.—[Official Report, Commons, 16/12/15; col. 1623.]
Has the Minister’s honourable friend finished his considerations yet? What format might he use?
Lord Thomas of Gresford
My Lords, I am moved to join in this debate by the recitation by the noble Baroness, Lady Gould, of the figures for the past few years, which amount to hundreds. I should tell the Committee that in the investigation I was involved with in Washington in America, to the best of my recollection it was estimated that 32,000 sexual offences were committed in the United States armed forces, regarding which there were 5,000 complaints and prosecutions brought in the hundreds, with convictions a lower figure. It was a matter of very high political concern. There is a campaign regarding this by Senator Gillibrand, the junior senator for New York, assisted by Mr Ted Cruz, who has achieved some notoriety lately. So there are a Democrat and an ultra-right-winger and others all involved in dealing with this dreadful problem that they are facing. The issue really is the role of the CO in sexual offences, the very issue that Amendment 6 raises. I strongly urge it upon the Minister that sexual offences should be taken out of the purview of the CO altogether.
Earl Howe
My Lords, I understand the concerns which underlie these amendments. However, the case that I shall put to the Committee will show that I am not convinced that it is necessary or appropriate to make changes. The first amendment in this group would create a legal obligation to publish data about allegations of sexual offences. It would impose an obligation which, it is worth saying, is not currently imposed on other civilian authorities, although they do publish such information on a regular basis.
It may be helpful if I briefly set out the existing arrangements within the service justice system for the collection and publication of crime statistics. The Service Police Crime Bureau records, for all three services, allegations of rape and sexual assault that are made to the service police. That information is released regularly in response to Parliamentary Questions and freedom of information requests. In the case of the latter, the information is uploaded to the MoD’s online publication scheme where it can be freely accessed. Noble Lords have said that they do not regard that in itself as sufficient, but let me continue as there is more to say on this.
The noble Baroness, Lady Gould, said that the system of recording offences needs to be made more robust. In an effort to improve our recording of crime, the Service Police Crime Bureau has been liaising with the Home Office police forces to analyse their crime-recording practices and rules. I am pleased to say that, as a result, the bureau is to establish a post of crime registrar, similar to that found in Home Office police forces, with a remit to scrutinise and audit the recording of crimes on the service police investigation management system. That will undoubtedly improve the accuracy and consistency of the information and, in due course, lead to the production of useful management information about patterns and trends. I very much agree with the argument that it is highly desirable to have an accurate picture of the extent of sexual offending.
My noble friend Lord Attlee asked whether the service police are recording every case referred to them. I will reflect on that issue but, in doing so, I suggest that we need to bear in mind that an unproven complaint should not blight a person’s career. This is a very sensitive issue and it is one on which I suggest that we must be very careful.
Lord Empey
Does the noble Earl agree that we in the UK have a reasonably well documented example of that? Among members of the Royal Ulster Constabulary, who were effectively in a combat situation both in work and at home for many years, after the Troubles there was a substantial rise in the number of mental health issues that were presented. I am sure that the department would have those statistics available, and there might be some interesting things there.
Lord Thomas of Gresford
My Lords, I would like to say something about attitudes towards mental health. I remember in the 1970s appearing on behalf of a person who had been blown up rescuing a pilot from a plane in the Western Desert during the war some 30 years before. It was extremely difficult in those days to persuade the ministry—the War Department, I think it was—that he was entitled to a war pension. We succeeded in the Divisional Court, but in the next election when I was a candidate he stood up and told the people there that if they voted for anyone, it should not be that Liberal candidate as he had problems.
Lord Craig of Radley (CB)
My Lords, I support the thrust of this probing amendment. Clearly there are enormous differences between trying to deal with people who are still in the services and may be suffering from mental illness and those who have become veterans and, maybe many years later, develop or show symptoms of mental illness. How does that get related to their time in service? There are a number of other practical points that I think have been very well made. I would like to put on the record that I am for this in principle but I can see that there are many difficulties. No doubt the Minister will have a chance to tell us about them.
Lord Thomas of Gresford
Before he finishes, may I ask the noble Lord about claims against the Armed Forces? For example, Iraqi claims have been brought forward that rely, to some extent, on the Human Rights Act. What is the impact of his amendment on that?
Lord Mackay of Clashfern
This applies only to the injury or death of those serving in the military on behalf of the British Crown. As the noble Lord, Lord Campbell, pointed out to me just before we came in, operations nowadays may not be on behalf of only the British Crown. They may be carried out, for example, in combination with the Americans, the French or some other nation. That is a further complication which did not arise in the case of Smith. The same principles could possibly apply in that situation. However, it does not deal at all with actions against, for example, Iraqis or any other people among whom our Armed Forces might be serving. The jurisdiction applies, in this particular case, to the injury or death of those serving. There would be implications of other kinds, not dealt with in Smith, so far as people who are not members of the Armed Forces are affected by actions of the Armed Forces.
Lord Thomas of Gresford
I would be grateful if I could speak first because the noble and learned Lord might wish to comment on what I say. I do not think the issue is the liability of the military commander in the field directing operations. As I recall, the cases were about the provision of equipment which would have prevented the firing of one tank upon another—the “friendly fire” that caused the injuries—and, in the other, the use of Snatch Land Rovers in a situation where it was unsafe to use vehicles of that type. The Ministry of Defence, which really must promote something like this, should not get away with the provision of inadequate equipment of one sort or another. You would not expect a soldier to go into action in Arctic conditions wearing a tropical uniform that had been provided to him. It is a question of procurement, not of the decisions that are taken in the field.
I seem to recall the noble Lord, Lord West, saying at Second Reading that when you are in the field you have to get on with it and do what you can with what you have got. The fact that you have to do so does not mean to say that those who have provided you with inadequate equipment—who fail to give a steel helmet to a Tommy in the trenches, for example—should escape all liability or blame for what occurs by amendments to the Human Rights Act in this way.
Lord Hope of Craighead
I am very grateful to the noble Lord. One cannot invent cases. The trouble with the courts is that you simply have to take what you are given. That is the real problem, which I think the noble Lord correctly identified.
Lord Thomas of Gresford
I was going to put this question to the noble and learned Lord, Lord Hope, but does the noble and learned Lord, Lord Brown, consider that a way forward might be to attempt legislatively to put the boundaries of combat immunity forward?
Lord Brown of Eaton-under-Heywood
I am glad to have been asked that question because it gives me the opportunity of saying this. Combat immunity is not of relevance here in respect of the convention claims. It is highly relevant, and was the answer sought to be advanced by the ministry, to the negligence claims. What was held, as my noble and learned friend said, by not four but five members of the court was that it did not extend to the peacekeeping mission that was relevant to the negligence claims.
I would not deal with the negligence part of the claims by extending the scope of combat immunity. I would deal with those parts, as I said at Second Reading, by legislating under Section 2(2) of the Crown Proceedings (Armed Forces) Act which enables one, in effect, to disapply tort law in respect of our Armed Forces. However, I would give them the compensation that the noble Lord, Lord Tunnicliffe, is understandably intent that they should have by making sure that they do not lose out by getting less under the pension scheme than they would if there were successful common law claims. I would give them the money on a no-fault liability basis because they have incurred these ghastly injuries serving the national interest in combat abroad.
However, I regard that as having nothing whatever to do with the limited scope of this amendment, which is simply to disapply the relevant part of the convention to that aspect of these claims. It would disapply Articles 2 and 3 so that, if necessary, it could be tested in Strasbourg whether the majority in the court in Smith needed to go as far as they did in saying that Article 2 applied. As the noble and learned Lord, Lord Mackay, said, I believe that the court would say that the margin of appreciation here allows us not to apply Articles 2 and 3 in this sensitive situation where Armed Forces are serving in combat abroad.
Armed Forces Bill
Lord Thomas of Gresford Excerpts(8 years, 3 months ago)
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Lord Thomas of Gresford (LD)
My Lords, I thank the Minister for his introduction to the Bill. I do not propose to follow the contribution of the noble Lord, Lord West of Spithead, very interesting though it was. I am sure we will have an opportunity to debate those issues at a later stage.
I wish to argue that the court-martial system, which is integral to service discipline, does not enjoy public confidence. There have been many reforms and in my view, speaking as a practitioner and as chairman of the Association of Military Court Advocates, this lack of confidence is unmerited and unjustified. But it exists and there are cases coming down the track which will test the system in the extreme.
Back in 1994, I was engaged in the defence of a lance-corporal, serving in Germany, on a murder charge. He was acquitted and returned to his regiment. George Galloway, then a Labour Member of Parliament for Glasgow, Hillhead, used parliamentary privilege to assert that a murderer had walked free and was still at large, serving in Her Majesty’s Forces. He said:
“The military police, who were soldiers with armbands, and the military prosecutor, who was a soldier in a wig, bungled the case”.—[Official Report, Commons, 28/3/95; col. 812]
When I appeared in a later court martial in Germany for a 17 year-old civilian son of a soldier, in another murder case, the staff sergeant who was the father of the victim in the previous case picketed the hearing with placards against the court-martial system. I have never heard of a Member of Parliament, nor even the press or public, attack a verdict of acquittal by a jury in a Crown Court in such terms. This did not even happen, for example, in the case I prosecuted in Cardiff during the miners’ strike, when two miners were convicted of the murder of a taxi driver using a concrete block.
The conviction of the 17 year-old went to the House of Lords Judicial Committee, where it was upheld. The noble and learned Lord, Lord Hope, held that the procedure whereby a boy of 17 whose father had left the Army and who was brought from England to stand trial in Germany by court martial could not be considered an abuse of process because that was the process that Parliament had ordered. In 2007, some 10 years after that trial, the European Court of Human Rights had severe doubts on that score, but in any event, following the case of Findlay v United Kingdom, held that the 17 year-old’s conviction had been in violation of Article 6—the right to a fair trial—by reason of the way that the court martial was constituted.
Parliament had already responded to the preliminary decision in Findlay in the Armed Forces Act 1996. The role of the convening officer was abolished and decisions to prosecute were removed from the chain of command and given to the independent service prosecuting authorities. This was in recognition of the need to remove the impression, however mistaken, that the chain of command could have undue influence over court-martial proceedings. The Armed Forces Discipline Act 2000, passed after the Human Rights Act had come into force, made further changes, taking away the CO’s power to determine pre-trial custody and granting appeals against summary convictions.
My own contribution to reform at this stage—and this will appeal to the noble Lord, Lord West—was to table a Parliamentary Question as to why a defendant in a naval court martial was still being marched in at the point of a cutlass. The practice was abolished between my laying of the Question and the delivery of the Answer by the noble Lord, Lord Bach. In the time I have been involved in courts martial, the swords have gone, the stripping of the defendant of his belt and cap has gone, and the marching and the saluting have all disappeared. Importantly, the panel sits separately from the judge advocate. But public disquiet continued.
Noble Lords of an earlier generation will recall how Lord Campbell of Alloway campaigned on behalf of Trooper Williams, where the CO had dismissed charges of murder. But the Army Prosecuting Authority disagreed and passed the papers to the Attorney-General, who referred it to the CPS. The proceedings that followed at the Old Bailey were ultimately discontinued.
In 2005, charges of murder against seven members of the Paras were dismissed by the Judge Advocate-General, Judge Blackett, at a court martial at Colchester. There was disquiet that they had been charged at all. My own personal recollection was that I made a very unusual application in that case for an adjournment in order to get married in the Crypt of Parliament—something that Judge Blackett always brings up with me.
However, major reforms happened in 2006. Courts martial ceased to be convened ad hoc and became a permanent standing court, with court centres at Colchester, Bulford and Catterick. Other reforms included the merger of the separate service prosecution authorities and the creation of the office of the Director of Service Prosecutions. The service was fortunate in both its first director, Bruce Houlder QC, an Old Bailey civilian practitioner, and its second and current director, Andrew Cayley CMG QC, who used to be a prosecutor at the International Criminal Court.
In 2006, Judge Blackett gave evidence to the Select Committee in the Commons, advising it that the court-martial system should be brought into line with the Crown Court. Consequently, during the passage of that Armed Forces Bill, I moved amendments in this House to make provision in the court-martial rules that the court-martial panel should be drawn from all ranks and every branch of the armed services. They were to be selected by ballot from a pool constituted of people who were eligible to sit. The qualification was simply to be that the individual chosen was a serving member of the Armed Forces, subject to service law. It was not an outrageous suggestion, because that was the system adopted in the United States in 1952.
I also moved amendments that a person should not be charged with an offence against this section committed in the United Kingdom if the corresponding offence under the law of England and Wales was treason, murder, manslaughter or rape. Further, I proposed that the verdict of guilty should not be entered by a simple majority but by a majority of five out of seven, if seven were sitting, or four out of five, if five were sitting. None of these amendments was accepted and the consequence was that the opportunity was lost to approximate trials by court martial to the Crown Court system.
The Act did not come into effect until 2009 and, meanwhile, in September 2006, the court martial took place of seven members of the Queen’s Lancashire Regiment at Bulford before a High Court judge, Mr Justice McKinnon. The charges against them failed. Four of the other ranks and the colonel were discharged by the judge because,
“there is no evidence against them as a result of a more or less obvious closing of ranks”.
He said that there was a conspiracy of silence. Two other officers, one of whom I represented, were acquitted of negligently performing a duty by the panel after a full trial. However, this verdict was not accepted and your Lordships will recall that the Baha Mousa trial, or inquiry, was set up, which lasted three years and cost £13 million.
More recently, we have the concerns expressed over Deepcut. There was some evidence yesterday on the second inquest—which your Lordships will recall and which is published in today’s papers—that the Deepcut barracks were,
“heavily sexualised, misogynistic and toxic”.
Then there is the Anne-Marie Ellement case—two people have been charged so I will say no more about that. However, in the case of Sergeant Blackman, there has been great outside criticism and comment. The sentence was described as “ludicrous”, by a prince of the blood royal, no doubt defeating a convention that has lasted since the days of Charles I. In this House, my noble friend Lord Burnett, who will no doubt speak more about it, described it on 15 September as,
“a terrible miscarriage of justice”.—[Official Report, 15/9/15; col. GC 228]
Have your Lordships, if you think about it, ever heard of the verdict of a British jury in the ordinary Crown Court being described in such terms in this House? There is trouble brewing.
In January 2014 and September 2015, Public Interest Lawyers, headed by Phil Shiner, lodged complaints with the International Criminal Court. The extent of them, as described by the International Criminal Court, was that,
“UK Services personnel systematically abused hundreds of detainees in different UK-controlled facilities across the territory of Iraq over the whole period of their deployment from 2003 through 2008”.
It includes 200 cases of unlawful killing. The prosecutor of the ICC set up a preliminary examination and reported last November that,
“The Office is currently engaged in processing and analysing the vast amount of material provided”.
Your Lordships should appreciate that it would be a terrible insult and slight upon our system if the International Criminal Court were to declare that this country is incapable of dealing with war crimes within our own system.
However, the Iraq Historic Allegations Team, set up by the Ministry of Defence but independent of it, has itself investigated nearly 1,400 complaints of ill-treatment, including torture and murder. I am reliably informed that more than 30 of those allegations have already gone to the Director of Service Prosecutions and that a large number of cases will, at the moment, be tried by court martial. If they are dealt with by court martial, we can expect—and await—unrestrained comment and criticism of the system in the press and the media, leading to public alarm and further undermining of the system.
I am concerned about the welfare of those who serve this country in the Armed Forces and whom we put in the line of fire, and about the reputation of the British Armed Forces. Consequently, I propose to return during consideration of the Bill to the amendments that I put forward in 2006 and, if they are not acceptable, to propose that serious offences of murder, manslaughter and rape, and serious sexual offences, should be tried in our ordinary Crown Courts and no longer by court martial—the system that is under attack. I repeat that, as a practitioner, I have confidence in that system and in the judges and advocates who appear in it, but I fear that unless something drastic is done, its reputation will be destroyed.
Earl Howe
These are matters currently under scrutiny. The firms that the noble Lord mentioned are, I understand, being quizzed by the regulatory authority for the solicitors’ profession. I am not aware of the outcome of those proceedings, but the noble Lord is right to pinpoint the issue of the way in which those firms received their instructions in the first place. That is a matter that we are as keen to get to the bottom of as he is.
Lord Thomas of Gresford
Can the Minister update us on the International Criminal Court preliminary examination? Where are we with that?
Earl Howe
I fear that I cannot. I will need to write to the noble Lord about that and I will be happy to do so.
I extend thanks, briefly, to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, for his contribution. I will not attempt to answer all the points he made, but I reassure the House again that these issues are under active consideration with the MoD and very recently, as I am sure the noble Lord, Lord Bilimoria, will be pleased to know, by the National Security Council.
My noble friend Lord Freeman was concerned that service personnel overseas might be subject to the criminal law of the host nation. We take steps to ensure that, before members of the Armed Forces are deployed overseas, arrangements are made with the host nations to ensure that the conduct of those forces in the course of their duties will not be subject to criminal proceedings under the criminal justice system of the host nation. Allegations of criminal misconduct will be dealt with under UK law, under the system established by the Armed Forces Act 2006.
The noble Baroness, Lady Taylor of Bolton, spoke of the need to do more about publicising data on sexual offences. While we are not yet convinced that it is necessary or appropriate to set out requirements in legislation for the publication of this data, the department is determined to make the data that we publish robust, consistent and accessible. To that end, we are actively considering how best to publish the data as an official statistic. The Service Police Crime Bureau records, for all three services, allegations of rape and sexual assault made to the service police. This information is released regularly in response to Parliamentary Questions and FOI requests. In the case of the latter, the information is uploaded to the MoD’s online publication scheme, where it can be freely accessed.
The Service Prosecuting Authority records, for each year, the number of cases referred to it, the number of cases in which charges are preferred and the number of cases where a conviction is secured. The Military Court Service regularly publishes, on the internet, details of every case heard at the court martial, including offences, outcomes and punishments. There is, therefore, a clear picture of the extent of this type of offending within the services, giving a strong indication of the proportion of case referred from the service police to the Service Prosecuting Authority which were prosecuted, and the conviction rate in such cases.
The noble Lord, Lord Touhig, also touched on the subject of sexual offences. It hardly requires me to emphasise—but I will—that sexual assault is unacceptable, in wider society or within the Armed Forces. At present, a whole range of allegations covering most sexual offences must be reported to the service police by the commanding officer. They can also be reported by the victim direct to the service police and, of course, the service police can investigate on their own initiative, but there are some, such as sexual assault, which are referred back, at least initially, to the CO. The Bill changes that. Where the service police have investigated any sexual offence and there is sufficient evidence to charge, the service police will be required to refer the case direct to the Service Prosecuting Authority. That is provided for in Clause 3. I will be happy to write to the noble Lord with further details around some of the questions he asked on this.
The noble Lord, Lord Thomas, took us to the whole system of courts martial and the service justice system. I should explain, in answer to the broad thrust of his question, that there is already a prosecutors protocol in place between the Director of Public Prosecutions, the Director of Service Prosecutions and the Defence Secretary which sets out the principles to be applied in determining where a case is best dealt with if the conduct occurred in circumstance such that both the civilian criminal justice system and the service justice system have jurisdiction to deal with the case. The protocol recognises that any offence can be dealt with by the service authorities.
The main principle in deciding whether it is the service authorities or the civilian authorities which acts is whether the offence has any civilian context, especially a civilian victim. If it does have a civilian context, it will almost certainly be the civilian police, prosecuting authority and courts which deal with the case. Under the protocol, many cases involving service personnel are dealt with by the civilian police. The service police are able to investigate, but if the circumstances are such that it is considered more appropriate for the civilian police to do so, then they will take the lead. We expect the prosecutors protocol to continue to apply even after the draw-down of forces from Germany, so that cases will continue to be dealt with in the appropriate jurisdiction from the outset.
Of course, we must not lose sight of the fact that the UK civilian police do not have jurisdiction overseas, and as long as the Armed Forces have an overseas role we will need to have a justice system which is capable of functioning extraterritorially and which supports the operational effectiveness of the services. The noble Lord also asked—
Lord Thomas of Gresford
The noble Earl will know that murder is under universal jurisdiction. Do I take it that murder cases arising out of the IHAT investigations, for example, will be referred to the civil court or to courts martial in this country?
Earl Howe
My Lords, as I said, there is a protocol which lays down pretty clear guidelines as to how individual cases are handled. I do not think I can give a blanket answer to the noble Lord; it will depend on the circumstances of the case.
He raised other points, including the composition of courts martial and majority verdicts—a theme also pursued by the noble Lord, Lord Burnett. The proposal to change the current rules under which findings of guilt or innocence may be by simple majority would involve profound changes to the court martial system. The court martial may sit in the United Kingdom or anywhere in the world in times of peace or in conflict. Court martial trials may be decided, as in a magistrates’ court, by a small panel, usually of three officers and warrant officers, but a panel of five is required in more serious cases. A service defendant will ordinarily be tried by lay members wholly of his own service. The composition of the panel is determined by the court administration officer who is appointed by the defence counsel. The CAO will draw names at random from a pool of potential members and, having checked that they are eligible for membership of the particular board, will specify who the lay members should be. I would like to write further to both noble Lords to flesh out this whole issue but the great advantage of reaching a decision by majority is that it avoids a hung jury and there is no need for a retrial in the event of a lack of unanimity or qualified majority. As the noble Lords will know, this is a long-established process.
The noble Lords, Lord West and Lord Empey, the noble Baronesses, Lady Taylor, and Lady Jolly, and others raised the issue of mesothelioma. The background to this was the announcement by my honourable friend the Minister for Defence Personnel and Veterans in December that veterans diagnosed with mesothelioma from that date would have the option to receive a £140,000 lump sum, to be paid from 11 April this year. I simply say that the Government understand the concerns that have been voiced in this debate and I can tell the House that work is actively continuing on the matter of those diagnosed before 16 December last year. While I cannot discuss that issue any further today, we hope to be in a position to say something soon.
The right reverend Prelate the Bishop of Portsmouth, my noble friend—
Syria: Brimstone Missiles
Lord Thomas of Gresford Excerpts(8 years, 3 months ago)
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Lord Thomas of Gresford
To ask Her Majesty’s Government what is their assessment of the effectiveness to date of the RAF’s Brimstone missiles in bombing Syria, and in particular in protecting the civilian population.
The Minister of State, Ministry of Defence (Earl Howe)
My Lords, the Brimstone missile offers the coalition a capability to strike moving targets accurately, with minimal risk of collateral damage. Between 2 December 2015 and 31 January 2016, RAF Brimstone missiles were used successfully on nine occasions in Syria to strike enemy vehicles. There have been no associated reports of civilian casualties and it is assessed that all targets were successfully destroyed or damaged.
Lord Thomas of Gresford (LD)
Yes, I think that the kill so far has been two trucks and five mobile cranes. Does it really matter what type of bomb or which of the coalition partners drop it? It has been reported that some 40 civilians or more were killed in January and in the first two days of this week. Surely we are involved in a joint enterprise and, by long-standing principles of English law, we are all of us legally and morally responsible for the lives of those who are killed—innocent civilians, innocent men, women and children—by these bombs. What comment would the Minister have?
Earl Howe
So far as we are concerned, as a member of the coalition, we take the possibility and risk of civilian casualties extremely seriously. As I said in my initial Answer, to date there is no evidence that UK strikes have resulted in civilian casualties. Three factors underpin that: our use of precision guided weapons; our adherence to very strict targeting and planning protocols; and, above all, the skill of our pilots and air crew. I think that it does make a difference whether it is the RAF or another air force taking part.
Tax Credits (Income Thresholds and Determination of Rates) (Amendment) Regulations 2015
Lord Thomas of Gresford Excerpts(8 years, 6 months ago)
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Lord Mackay of Clashfern
I am sorry, the right reverend Prelate. That was a bit of a promotion because we are in the presence of the two Primates. The Motions mark a refusal to accept a decision of the elected House on a matter of financial privilege as the final authority for it. That is what they amount to. It has to be noted, as I have said, that this is the privilege of the elected Chamber, not of the Government.
The amendment proposed by the right reverend Prelate—I shall try to get it right this time—is entirely in accordance with the arrangements of this House and with the financial privileges of the House of Commons. Therefore from the point of view of the powers of this House, it is by far the safest of the Motions that have been put forward. In light of what the Leader of the House said in opening, I believe that the Chancellor of the Exchequer is very open to considering the detail—
Lord Thomas of Gresford (LD)
My Lords, does the noble and learned Lord not agree that the conventions to which he has referred, going back to the 17th century, were so uncertain that in 1908 the Conservative Party defeated Lloyd George’s People’s Budget in which he sought to give money to the poor people of this country? Does he also not agree that the 1911 Act set out a mechanism whereby the Speaker would certify that a money Bill was a money Bill, and that would remove from us our powers of consideration? Is he not going back to an argument that failed more than 100 years ago?
Lord Mackay of Clashfern
Not at all. I am stating the present practice, according to Erskine May, in relation to matters of financial privilege. As I said, it is not a matter of the conventions of this House, but of the rights of the other place in this matter. My clear submission to your Lordships is that these amendments challenge the final authority of the elected House on a matter of financial privilege. It is true that the Liberal Democrats—I suppose they were the Liberal Party then, but the succession is probably allowable—found it necessary to take further action to ensure that the practice that had been built up in the 17th century applied in the 20th century and beyond. They put mechanisms in place to prevent financial privileges being in any way transgressed again.
Lord Butler of Brockwell (CB)
My Lords, I shall try to put my points briefly. I do not want anything that I say to be taken as implying a lack of sympathy with the concerns of those who have spoken about the effects of the Government’s policy. Like other Peers, I have had moving emails from many such people who expect to lose benefits through the statutory instrument. However, I want to confine myself to the constitutional issue. I usually agree with the noble Baroness, Lady Thomas, about statutory instruments. As has been pointed out, it is a very rare event that the Government are defeated on a statutory instrument; it has happened only five times since the war, but that does not mean that the House could not do it. But there is a combination here, because this is a statutory instrument about a budgetary matter central to the Government’s fiscal policy; it is that combination that is unprecedented, which is why it would be beyond the House’s constitutional powers to defeat the Government today.
Lord Thomas of Gresford (LD)
Would the noble Lord wish to amend the Companion to the Standing Orders and guide to the Proceedings of the House of Lords? It states:
“The House has resolved ‘That this House affirms its unfettered freedom to vote on any subordinate legislation submitted for its consideration’”.
Is this not subordinate legislation submitted for our consideration?
Lord Butler of Brockwell
What I am saying is that the combination of the convention about statutory instruments and the fiscal significance of this one is what makes it special.
Lord Butler of Brockwell
Any—but not since 1911 have a Government been challenged on a matter of this sort, which establishes what the constitutional conventions of the House of Lords are. In that respect—