Armed Forces (Retrial for Serious Offences) Order 2013

Lord Rosser Excerpts

Monday 8th July 2013 Grand Committee

[Lord Trefgarne]

My Lords, I am of course grateful to my noble friend for what he said but will make just a few remarks about the Armed Forces (Retrial for Serious Offences) Order. We need to be careful that we do not surround the activities of our Armed Forces, in particular our Special Forces, with such a panoply of legislation that they will have difficulty discharging their duties in the manner that we would wish. Of course the Armed Forces cannot be exempt from the law, but if they are at risk—or fear that they are at risk—of too zealous an application of the relevant legislation, there may be difficulties of a wider kind.

I apologise for going back so far, but some of your Lordships may recall an incident in Gibraltar in 1988 when Special Forces were involved in an operation against IRA suspects. At the time, there was much initial discussion, although it did not go on for ever, as to whether they had complied with the law or not. It was a very finely balanced judgment and a question of whether they had complied with the rules of engagement, as they are called, laid down by Ministers in respect of the use of firearms in circumstances such as then prevailed. I was much involved in the discussion; indeed, there was a very important debate in your Lordships’ House at that time, to which I replied. It was established that they had indeed complied with the required legal provisions and therefore that no question of any offence arose. However, there was a coroner’s examination of the matter in Gibraltar. The outcome of that was not initially certain but eventually it was clear.

It is important that in general terms we do not surround our Armed Forces, and particularly our Special Forces, with such a panoply of rules and regulations that when the time comes for them to do maybe some pretty dreadful—but nonetheless necessary —things, they are inhibited by a possible fear of vexatious prosecution or perhaps a second prosecution, as provided for by this order. I need to be careful, as there is a particular case before the courts at present which must take its course. However, I hope my noble friend can assure me that nothing in this order will create a situation where the activities of our Armed Forces, including our Special Forces, are placed at risk or in greater difficulty.

[Lord Rosser]

My Lords, we have two orders which, on the face of it, go in slightly different directions. The second order, on the reduction in the number of lay members who sit in a court martial in sentencing proceedings for serious cases where a guilty plea has been entered, could be argued to be weakening the panel, at least as far as lay members are concerned.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall)]

My Lords, the Division Bell is ringing. The Committee will adjourn for 10 minutes.

--- Later in debate ---

[Lord Rosser]

Perhaps I may resume my contribution, which I had hardly started. I should say again that the second instrument we are discussing, on the reduction in the number of lay members who sit in a court martial in sentencing proceedings where a guilty plea has been entered in serious cases, could be argued to be weakening the panel, at least as far as lay members are concerned. The first instrument we are considering seems to go in the other direction, since among other things it now provides for a panel to be able to hear a case again if new and compelling evidence comes to light following a person or persons being acquitted of certain serious offences.

I understand what has driven the order; namely, bringing service proceedings into line with the civilian justice system. I had assumed that the terms of the order would apply only if the person or persons concerned in respect of whom new and compelling evidence had come to light were still members of the Armed Forces, but I think that the Minister referred to a six-month period that could possibly be waived. I am not sure whether that means that for a period of six months after someone has left the Armed Forces, in the circumstances set out in this order, they could still be recalled and retried through the court martial system. I would be grateful if he could clarify the situation when he responds. What would happen if there were two or more defendants, one or more of whom was still in the Armed Forces and one or more of whom was not? How would the reopened case be dealt with? Would it be dealt with within the court martial system?

As I say, I understand what is driving the order, but what is driving the second instrument is a little less clear. Paragraph 7.2 of the Explanatory Memorandum states that the change being proposed,

“is aimed at reducing both delay and the cost of proceedings”.

Reducing delay can certainly be in the interests of justice, but reducing the cost of proceedings sounds as though the instrument is, at least in part, financially rather than justice driven, or at least financially at least as much as justice driven. No figure is given for the reduction in the cost of proceedings, and, as far as I can see, the Explanatory Memorandum is also silent on what the reduction in delays would be, and on how such a reduction would be achieved as a result of the proposals set out in the rules.

Currently, at least five lay members are required to sit in court martial proceedings that relate to a more serious offence, as listed in Schedule 2 to the Armed Forces Act 2006. Under the new rules, the minimum five lay members would be reduced to a minimum of three and a maximum of five in cases relating to a more serious offence where the defendant or defendants entered a guilty plea before the trial began, and where sentence had to be passed. As the Minister said, this arises from a review and recommendation of the Services Courts Rules Review Committee. Is there to be any reduction in the number of non-lay members sitting in court martial proceedings? Are lay members represented on the Services Courts Rules Review Committee that carried out the review and made the recommendation in front of us today?

It would be helpful to know what the savings would be, since it is not immediately obvious that savings of any significance are likely to arise, unless reducing the number of lay members from five to three will be used as a reason for reducing the total number of lay members eligible to sit. To enable me—if nobody else—to get some feel for the impact that the proposed changes might have, perhaps the Minister will answer the following questions, if not today then at a later date. How many court martial proceedings with lay members were held in 2012? What was the total number of cases they heard? What was the total number of days in aggregate for which the courts martial sat? Is the number of sitting days going up, going down or remaining static each year? What is the total number of lay members eligible in aggregate to sit in court martial proceedings? What is the average number of sitting days for a lay member each year?

Furthermore, in how many cases in 2012, if this statutory instrument had been in effect, would the number of lay members sitting on a panel have been reduced from five to three, and what percentage of cases where the sole defendant or co-defendants pleaded guilty before the commencement of the trial would that have represented? Does the change provided for in the statutory instrument have the support of the lay members currently eligible to sit?

Paragraph 8.1 of the Explanatory Memorandum states that the rules have been the subject of “rigorous consultation” with the various bodies and organisations to which it refers. I am not sure of the difference between “consultation” and “rigorous consultation”, and I suspect that the Minister is not, either. Therefore, I am not inviting him to answer the question. However, does one of those bodies and organisations listed in the Explanatory Memorandum as having been consulted represent or speak for the lay members whose numbers are going to be reduced under the terms of this statutory instrument?

I conclude by saying that while we have no intention of opposing the order and rules, I would be grateful if the Minister would respond, at some stage if not today, to the points I have made. Unless there is a corresponding reduction in non-lay members sitting in court martial proceedings, the statutory instrument alters the balance between lay members and non-lay members in sentencing for serious offences where a guilty plea has been entered. I am not clear of the justification for this, in the interests of justice. The decision on whether one is found guilty of an offence is a profoundly significant one for a defendant, and so, too, is the decision on sentence where lay membership involvement has been reduced where there has been a guilty plea, since that sentence—we are talking about serious offences—can take away an individual’s liberty for a considerable period of time.