Armed Forces Act 2006

Lord Thomas of Cwmgiedd Excerpts

Thursday 23rd November 2017 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

I thank my noble and learned friend Lord Morris of Aberavon for having secured this debate on what would, at first sight, appear a rather recondite issue but which has, from time to time, had very serious consequences for individuals. It has also caused great publicity, which is sometimes to the disadvantage of the Armed Forces.

Much has been done in recent years by the present Judge Advocate-General, Judge Blackett, to improve the system. I pay tribute to what he has done. He has certainly much more closely aligned the procedure of the courts martial in the trial of criminal cases to that of the Crown Court. However, as my noble and learned friend said, there is a real distinction in relation to jury trial, which in the modern age is hard to justify. That is to say: the composition breaches the fundamental principle of random selection and there is the fact that a majority can be a bare majority, which is not even announced. These anomalies are very difficult to justify as a matter of justice in the 21st century.

These issues are of particular importance in cases which involve action by a member of the Armed Forces against someone who is not a member of the Armed Forces, as has occurred in a number of cases. The ordinary citizen would expect a crime over which the Crown Court has jurisdiction, which includes murder overseas, to be tried by an ordinary court, by ordinary principles of law and by that bulwark of our constitution, trial by jury. It therefore seems that what the noble and learned Lord suggests is, in the present circumstances, essential: a review to see whether the provision is fit for the 21st century, particularly in circumstances where there has been a reduction in the numbers in our Armed Forces, a substantial fall in the number of cases and much-needed improvement made in the ordinary criminal justice system.

I would like to draw attention to a number of specific questions, and I shall take five by way of example because they all relate to this question. First, there is concurrent jurisdiction. It is clear that a number of cases are tried by court martial over which the Crown Court would have jurisdiction. There is a protocol between the Director of Service Prosecutions, the Director of Public Prosecutions and the Ministry of Defence that covers the allocation of such cases. I think the time has come for a proper review of that protocol to determine whether it is right that serious criminal cases do not automatically go to the Crown Court.

Secondly, there is a matter often overlooked, which is the exercise of prosecutorial discretion. The noble and learned Lord will have had much experience of supervising the exercise of that discretion in the ordinary courts. It is a matter which sometimes causes the Director of Public Prosecutions a great deal of anguish, but there are cases which result from historic conduct where the courts martial have jurisdiction over civilians because they were family members, not members of the Armed Forces. That is the sort of case, and there are other illustrations that could be given, where it is appropriate that as part of the operation of the courts martial system, the exercise of prosecutorial discretion—such a difficult issue—should be examined.

Thirdly, there are less serious criminal cases where it might be said that the court martial is the appropriate forum, particularly for low-end assaults or minor thefts, where sentencing considerations are, it might be said, more appropriate for a court martial than an ordinary court. Fourthly, there is the question the noble and learned Lord has raised in relation to the allocation of judges. Certainly as the number of cases in the courts marital decreases, experience becomes more important. Finally, there is another aspect of the system. Over the past 15 or so years, in the Crown Court sentencing has become much more professional, and it is carried out by the judge alone. Is it right in the 21st century that sentencing should also be done by the full board?

Those are just examples of questions that arise from the need for the review for which the noble and learned Lord has called. As I have presided over a significant number of court martial appeals, it would not be appropriate for me to say anything more about the detail of my experience, but it seems to me that the time has come for a review. It is possible to do much without primary legislation. The operation of the protocol is one of the key issues where a lot could be done without legislation, and there is the much-needed but neglected revision to the courts martial procedure rules in which the Ministry of Defence has a key role. I therefore warmly endorse what the noble and learned Lord has sought in this debate. Such a review would be welcome to everyone concerned with the administration of justice and, in particular, for the reputation of Her Majesty’s Armed Forces. They are not well served by the present system.