Armed Forces Bill

Lord Thomas of Cwmgiedd Excerpts

2nd reading
Tuesday 7th September 2021 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I too welcome this Bill. I wish to speak about the service justice system, and in particular the courts martial. It is important that we put this on a firm and clear basis, because the bravery of our Armed Forces, shown recently in particular in Afghanistan, demands no less. I therefore welcome the recommendations and their acceptance by Judge Lyons in matters such as the type of majority that is required for a court martial jury to convict, and also the slip rule. These are welcome and have been long advocated by Judge Jeff Blackett, who did so much to bring the courts martial system into line with the ordinary courts.

However, I too take the view that the best solution would have been to adopt the recommendation of Judge Lyons in relation to the concurrent jurisdiction point. I will say nothing about two factors which are important, namely the independence of the investigation and the experience of prosecutors, until we have the report of Sir Richard Henriques. That is crucial to these issues and I would be grateful if the Minister could indicate when it might become available.

Two critical matters do arise at this stage. First, why do we retain special juries in serious cases in respect of murder and sexual offending for the military? These were abolished in the rest of our justice system many years ago and it is difficult to see why they should be retained, save in exceptional circumstances. Why is a member of the Armed Forces not entitled to the protections that the rest of us have? It will be interesting to hear what the Minister has to say about that fundamental point. Secondly, I assure the House that sentencing is an incredibly difficult exercise that requires a great deal of experience. There is therefore no reason for differentiating the court martial system from the ordinary justice system. I very much hope that the Minister will think again on these points, and I look forward to speaking in support of what it has been indicated that the Opposition might move in relation to Judge Lyons’s recommendation.

Perhaps I may say two words about the proposed solution to the concurrent jurisdiction issue. First, if this is the route we go down, it will be easier to see whether the details have been got right when we see the report of Sir Richard Henriques on the matters. There are three matters that I will briefly mention. The first is the question of supervision or the provision of factors that should influence the protocol. We are delegating very considerable powers to two law officers. Should Parliament consider setting into the Bill the factors that they should take into account, or should Parliament approve the protocol? Secondly, the choice of jurisdiction is quite unlike the choice of a prosecutor as to whether to prosecute or not. I respectfully ask the Minister to consider whether there should not be a right of appeal to a judge of the Court Martial Appeal Court if the defendant or the complainant feels that the wrong choice has been made. This seems to be a far preferable route to seeking judicial review of the prosecutor’s decisions.

The third point, which is possibly a technical mistake in the Bill, is that the protocol will deal only with offences committed in the United Kingdom. However, there is concurrent jurisdiction for certain offences, wherever they are committed, murder being the clearest example. Therefore, if we are to go down the protocol route, it seems to be a technical error to have left out dealing with the issues in relation to the commission of serious offences overseas. I merely put on the record that this was one of the issues that arose in the Blackman case, and it is accepted that that trial could have been conducted if a different decision had been made in the ordinary courts of the land—just as any British citizen accused of murder can be tried here. This is a problem that should not be left out of the Bill. It is not dealt with satisfactorily at present.