Armed Forces (Court Martial) (Amendment) Rules 2024

Lord Thomas of Gresford Excerpts

Monday 20th May 2024 Grand Committee

[Baroness Buscombe (Con)]

My Lords, I respond to the regulations by saying that I very much support the proposals. I do so having compared the process for court martial with that for discharge from the Royal Navy on medical grounds. The latter is the most inhumane and unfair process that I have ever come across. I ask the Committee’s leave to bear with me for a few moments so that I can put on record why I am unashamedly using this opportunity to speak on court martial to alert the Minister to the truth about the process applied to serving personnel who may not be operating at full capacity in the Navy due to an illness, an illness that was most likely contracted or occurred while in service.

The key point is that a court martial allows serving personnel to be represented and the opportunity to make his or her case to rebut the charges in person. In contrast, the Royal Navy’s employability board acts behind closed doors, even when someone has asked, with detailed reasons and letters of support from others within the Navy and the medics, for his or her case to be reviewed. Instead of an interview with serving personnel in person, in the first instance, the board sends out what it calls a signal, which means an alert for a line manager to call an individual and say, “You’re discharged”. The line manager then informs that individual that they are discharged and because the line manager most probably does not know what the process is because he or she has not been told, he or she unknowingly gives the individual incorrect advice about an appeal process and timing.

No reasons or explanation for the discharge are given at that point, so an individual who wishes to appeal that decision is up against a time limit and cannot know what they are appealing against. Eventually—too late—a letter couched in the most appalling, unpleasant language arrives in the Navy post. It basically writes someone off, even if that individual has skills, experience and capabilities of which we know the Navy is in dire need. The result is that years of training, service, commitment and adaptability are wasted, and an individual who has served his or her country is devastated, on the floor. No one has even bothered to sign that letter.

If the individual asks for their case to be reviewed and submits detailed reasons, again, there is no interview by the employability board and no consideration of a possible transfer to other branches to utilise experience and capabilities, attributes that may be supported by others in the Navy who work with and know the applicant. No reference is made where an individual who has moved heaven and earth to return to 100% fitness, most probably at their own expense, confirms a marked improvement or an expectation of full recovery in the short term. No reasons are given in the event that the review is unsuccessful. Another signal just goes out to the line manager stating “no change”.

Will the Minister therefore take time to meet me so that I can share in more detail this unacceptable and frankly shocking truth? I believe it sends a terrible message, not least to all those who have signed up to the Armed Forces covenant. In a court of law, that message would not stand up to the most basic principles of transparency and fairness, coupled with the accountability of the board.

I close by confirming that no armed forces personnel, serving or veteran, are aware of my decision to make this statement today.

[Lord Thomas of Gresford (LD)]

My Lords, it is a privilege to follow the noble Baroness’s speech. I hope that she has my success in dealing with the Navy. Many years ago, I put down a Question to the noble Lord, Lord Bach, who was then in the Ministry of Defence, about the practice of marching the defendant in a court martial into the court at the point of a cutlass. I thought that that was perhaps not appropriate when there is the presumption of innocence and that it was not appropriate in our day and age. Between putting down the Question and getting the Answer, the ancient custom was abolished for all time.

It is a privilege to be debating with the noble Earl, Lord Minto. I am sure he does not remember this, but we last exchanged words at the gate of his home, Minto House in Scotland. He may remember that I expressed my huge admiration for his ancestor, the first Earl of Minto, who was a very liberal governor-general of India and a wonderful politician for whom I have the greatest respect and about whom I have written a lot. So it is a pleasure to be in the noble Earl’s company again.

I declare an interest as the president of the Association of Military Court Advocates, although I am not speaking on its behalf and the views I express are not the considered view of that association.

As the noble Earl said, this draft SI derives from Sections 304D and 304E, which were inserted into the Armed Forces Act 2006 by the Armed Forces Act 2016. That was eight years ago, not now, so perhaps the Minister can explain why it has taken eight years for the appropriate secondary legislation to be put in place.

Section 304D applies where the review is to consider a reduction of a sentence for co-operation or assistance. Section 304E applies where a person has been given a discount on sentence but has failed to co-operate. In my experience in the Crown Court, the common law position was that, where a convicted person wished to take advantage of any assistance he may have given or was offering to the prosecution, a “text”—it was commonly called that—was prepared by the police or the prosecution and handed to the judge in chambers. This was a secretive procedure, and usually the defendant had to rely upon the good faith of the police or the security services. He did not see the text and the judge did not refer to it in court. Your Lordships will appreciate that giving assistance to the investigating authorities is positively dangerous for a person who has been sentenced and is serving a prison sentence.

This clandestine procedure was given statutory force in the Serious Organised Crime and Police Act 2005, as amended by the Sentencing Act 2020. I note that the Explanatory Memorandum does not refer to the 2020 Act, and I wonder whether it was prepared in 2016, in the light of the Armed Forces Act, prior to the amendments to SOPA.

The civilian provisions in SOPA introduced the possibility of a review of a sentence after it had been passed and while it was being served. They involve a careful series of steps to be taken by prosecutors, and the consideration of a number of factors by the court. To qualify for a review of his sentence, the offender may offer to give King’s evidence, as it is called, in a subsequent trial of his associates, or he may simply provide intelligence of their activities, or both. In most cases, the anonymity of the prisoner is maintained for obvious reasons. Copious and lengthy guidance notes for prosecutors are published by the Crown Prosecution Service, covering a variety of topics, including the criteria for allowing a review, the obtaining of a written agreement, the conduct of interviews, the need to inform the police or other investigating authority of the proposal, the documents to be supplied to the court and so on. My first question is: will the Service Prosecuting Authority or the Director of Service Prosecutions rely on those guidance notes, or will specific Service Prosecuting Authority guidance be published?