Draft Armed Forces (Tri-Service Serious Crime Unit) (Consequential Amendments) (No. 2) Regulations 2022 Draft Armed Forces (Court Martial) (Amendment) Rules 2022

Dan Jarvis Excerpts

Monday 21st November 2022 General Committees

[Dr Murrison]

I thought that somebody might ask that, so I asked my officials before coming to Committee. This is a consequential statutory instrument, which simply replicates what is currently the practice under the Armed Forces Act 2021. Without it, the new defence serious crime unit would not be doing the things that service police are already doing. One could argue that commanding officers should not be provided with reports about people under their command. However, in the 2021 Act and its predecessor, the Armed Forces Act 2006, Parliament decided that such a report should be provided. That is the reason we are doing this now, and changing primary legislation is not the function of this Committee. I am sorry if that is an unsatisfactory response to my hon. Friend, but I am very pleased he asked the question because, as I said, I had asked the same.

I think that the Committee will be interested in the victim and witness care unit, which will be set up under the DSCU. The unit will deliver support to victims and witnesses of crime. The unit is being developed in consultation with specialist external organisations, such as the Survivors Trust and the office of the Victims Commissioner, and is expected to be fully operational in early 2023. The regulations deliver on the recommendations of the Henriques review, and mean that the Ministry of Defence will be in a stronger position to respond to serious crime. We will be able to combine resources and specialist skills across the single services under one unit, and will provide an independent, more effective and collaborative approach to policing across defence. I will seek to provide further updates after the DSCU has become fully operational and, in particular, after I have visited in the near future, which I look forward to.

[Dan Jarvis (Barnsley Central) (Lab)]

I welcome the points that the Minister is making. I think I am right in saying that the Government have said that the DSCU will be independently inspected by His Majesty’s inspectorate of constabulary. The Minister will know, as I do, that every branch of the armed forces takes seriously the issue of how their performance is evaluated and how they can seek to do things better in future. Can the Minister confirm that there will be an independent inspection? If that is the plan, does he envisage that the findings of the independent inspection, when it takes place at some point in the future—I am mindful that the unit has not even been set up yet—will be published?

[Dr Murrison]

Yes, I anticipate that this will be dealt with in exactly the same way as for any other constabulary, if that is helpful. I will move on to the second statutory instrument that we are debating, the Armed Forces (Court Martial) (Amendment) Rules 2022, because I am quite sure that they will be of interest to the Committee. The SI consists of the changes to the rules that apply to courts martial that were contained in schedule 1 to the Armed Forces Act 2021, with three of the four changes implementing recommendations from the Lyons review of the service justice system.

The first rule change implements Lyons’s recommendation that a six-member board should be required if the offence is a schedule 2 offence. These are serious offences, such as grievous bodily harm, which must always be referred to service police for investigation rather than being dealt with by a commanding officer, or that carry a maximum penalty of more than two years’ imprisonment. His Honour Shaun Lyons found that there was widespread agreement that the five-member boards, which currently try schedule 2 offences and offences carrying a maximum term of over seven years’ imprisonment, should be increased in size to six and reach qualified majority verdicts, rather than a simple majority verdict in which at least five of the six members have agreed.

His Honour Shaun Lyons also recommended that those boards try schedule 2 offences and offences carrying a maximum of over two rather than seven years’ imprisonment. He recommended that smaller boards, which will continue to consist of three or four members, should try all other cases and deal with sentencing in all cases where the defendants have pleaded guilty, as they do now. We accept this recommendation, which will allow the three-member boards to focus on the great majority of the service disciplinary offences contained in the Armed Forces Act 2006 and the less serious criminal offences that would normally be heard in the magistrates court in a civilian criminal justice system. Six-member boards will deal with the relatively small number of disciplinary offences that carry a sentence of over two years’ imprisonment, such as assisting the enemy or mutiny, as well as criminal conduct that would normally be tried in the Crown Court. We do not anticipate that lowering the threshold for when a six-member board is required—when the offence attracts a punishment of more than two years—will place an untenable resource burden on the single services, since the existing pools of personnel provided for court martial service are sufficient to meet the new requirement. However, we will monitor the situation for the first 12 months after introduction and consider whether any adjustments to the approach outlined might be required.

The second rule change has its background in the pingdemic that occurred during the covid pandemic, which highlighted the concern that three-member boards hearing cases lasting several days can be vulnerable to the unexpected loss of one member of the board. To deal with this, the Armed Forces Act 2021 gave judge advocates the power to add a fourth member to a three-member board.