Armed Forces Act 2006

Baroness Goldie Excerpts

Thursday 23rd November 2017 Lords Chamber

[Baroness Goldie (Con)]

My Lords, as always, we have had a good debate covering a range of issues around the service justice system, and I thank noble Lords for their interest and contributions. I thank the noble Lord, Lord Tunnicliffe, for his kind remarks. I shall do my best to respond to as many of the points raised as I can. By way of preface, I should explain that I have a blocked ear and am totally deaf on my left-hand side, so if I fail to respond to a point raised it is not selective disregard of that contribution—it is because I have failed to hear it properly. But I shall, of course, write to any noble Lord where I have omitted to deal with the point adequately.

We have heard a range of views and concerns about aspects of the service justice system. I should make it clear that, as a broad principle, it is our aim to mirror provisions within the civilian justice system and diverge from that only when it is necessary to maintain operational effectiveness. I noted the views of the noble and learned Lord, Lord Morris, but I remind noble Lords that the Ministry of Defence has successfully defended challenges to the system of Armed Forces’ courts—in particular, the court martial—in cases in the European Court of Human Rights and civilian courts. The current system has been held to be compliant with the European Convention on Human Rights, and we maintain that it is safe, independent and impartial. However, we recognise that, as we move further forward into the 21st century, we need to make sure that we have the right service justice system in place to meet the needs of our Armed Forces. I thank the noble and learned Lord, Lord Thomas of Cwmgiedd, for acknowledging that progress has been made—although I also acknowledge that, from his perspective, it is not enough.

As I said in my reply to the Question from the noble and learned Lord, Lord Morris, on 23 October, the Government have decided to have a broad review of the service justice system in advance of the next Armed Forces Bill in 2020, and that review will include the handling of serious criminal offences with which the civilian criminal system deals more frequently. The review is being led by a retired civilian judge, His Honour Shaun Lyons. Judge Lyons also served in the Royal Navy and left the service in 1992 as Chief Naval Judge Advocate to take up a position in the civilian judiciary, where he served until last year. We believe that he brings the right level of experience and objectivity to this piece of work and we look forward to the report of his review in around a year’s time.

This is an independently led review and Judge Lyons will be able to consult with whomever he believes will assist him in his work. Let me say to the noble Lord, Lord Tunnicliffe, that I am sure this will include a wide range of stakeholders, including those who sit outside of the MoD. Indeed, those who wish to make representations are free to do so. I know the noble Lord, Lord Tunnicliffe, was rather dismissive of my previous observation that people should feel free to make their contributions but I think it would add a very positive dynamic to the process and would help the review. I am sure that the views expressed this afternoon will be listened to with interest.

Turning to the substance of the noble Lord’s Question, I should explain that Section 42 of the Armed Forces Act 2006 provides that:

“A person subject to service law, or a civilian subject to service discipline, commits an offence under this section if he”—


or she—

“does any act that … is punishable by the law of England and Wales; or … if done in England or Wales, would be so punishable”.

The Armed Forces Act provides for the service justice system to investigate and deal with these offences, whether they are committed in the United Kingdom or overseas.

With regard to the extraterritorial application of Section 42 so that it applies overseas, if that provision did not exist, we could find ourselves unable to deal with service personnel who commit civilian criminal offences overseas, and it therefore plays a key role in supporting the maintenance of discipline in deployed forces. Another factor to consider is that, without this provision, the relevant conduct overseas may have to be dealt with by the host nation’s criminal justice system—a system which, in many cases, is likely to be very different to our own.

One effect of Section 42 is that there will be some conduct which both the service courts and the civilian criminal courts in England and Wales will have jurisdiction to try. The noble Lord, Lord Thomas of Gresford, referred to this jurisdiction issue. For example, an alleged assault in England by a solider could be tried in a service court or in the civilian criminal court. Less commonly, both the service courts and the civilian criminal courts may have jurisdiction to deal with service personnel who are accused of certain crimes overseas, because there are some offences under the criminal law which cover conduct overseas. One example is the offence of murder. For cases which both the civilian criminal courts and service courts have jurisdiction to try, it is recognised that it is necessary to consider in each case whether the case is more appropriately dealt with in the civilian criminal courts or in a service court.

To this end, there is a protocol between service and civilian prosecutors that recognises that some cases are more appropriately dealt with in the service system and some are more appropriately dealt with in the civilian system. The principles of this protocol have the approval of the Attorney-General for England and Wales and the Ministry of Justice. The protocol recognises that any offence can be dealt with by the service authorities, but it does not follow that the service justice system should always deal with cases involving service personnel. As I have already said, the protocol recognises that some cases are more appropriately dealt with in the service system and some in the civilian system. To illustrate this, offences alleged only against persons subject to service law and which affect the person or property of civilians are normally dealt with by a civilian court and not in service proceedings. Offences alleged only against persons subject to service law which do not affect the person or property of civilians are normally dealt with in service proceedings and not a civilian court. If the appropriate jurisdiction is not clear, then the protocol makes it clear that the Director of Public Prosecutions and the Director of Service Prosecutions should consult, but the final decision rests with the Director of Public Prosecutions.

I understand, however, that there are those who are concerned that, notwithstanding the provisions of the protocol, the service justice system should not deal with certain offences. The noble Lord, Lord Thomas of Gresford, raised this issue. As I understand it, those concerns seem to focus on two aspects: first, that the service justice system is not capable of dealing with certain offences; and, secondly, that the court martial operates a system of majority verdicts which is not the system used in the civilian Crown Court.

Taking the first of these points, we take the view that the service justice system is capable of dealing with the most serious of offences. The service police are trained and able to carry out investigations into the most serious offences, with members of the Special Investigation Branch having to pass the serious crime investigation course before being selected for that unit. In addition, selected members of the service police attend a range of specialist and advanced detective training at the Defence College of Policing and Guarding, or externally with the College of Policing or training providers accredited by the college.

At the Service Prosecuting Authority, prosecutors are trained to effectively prosecute serious cases. For example, prosecution of serious sexual offences requires attendance on the CPS rape and serious sexual offences specialist training course, and the SPA ensures that decisions on charging in such cases are taken only by prosecutors who have completed that training.

With regard to the second concern on majority verdicts—the noble and learned Lord, Lord Morris, advanced a number of views on this—the Government have been successful in establishing in both the European Court of Human Rights and in the civilian courts that the court martial system is in principle safe, independent and impartial. The current system for majority verdicts has been considered twice by the Court Martial Appeal Court in the last five years and was on both occasions held to be fair and safe. The Court Martial Appeal Court, which is made up of the same judges as sit in the civilian Court of Appeal, has held that there is no ground for deciding that a verdict by a simple majority of the lay members of a court martial is inherently unfair or unsafe. However, we recognise that there are differing views about the system of majority verdicts, some of which have been expressed in this House as recently as this afternoon, and indeed were articulated eloquently by the noble and learned Lord, Lord Morris. I suggest that these views and those of other stakeholders will be captured and considered as part of the service justice system review.

The noble and learned Lords, Lord Morris and Lord Thomas of Cwmgiedd, and the noble Lord, Lord Thomas of Gresford, raised a number of key issues about the broader operation of the court martial system. As I have previously said, the Government have decided to have a broad review of the service justice system and this will include the handling of serious offences in the court martial. The review will no doubt note with interest all the points that have been raised today.

This has been a useful debate. It may have been a short one with a relatively small number of contributors but the quality of contribution speaks for itself. I thank your Lordships for their valuable and very interesting contributions to the debate. I hope that I have responded to all the main points raised, but I undertake to look at Hansard and, if mental frailty or aural deficiency have been responsible for overlooking any point, I shall certainly try to address that by undertaking to write to whichever noble Lord I have not managed to respond to fully.

House adjourned at 6.03 pm.