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

Maria Eagle Excerpts

Monday 21st November 2022 General Committees

[Maria Eagle (Garston and Halewood) (Lab)]

On a point of order, Ms Fovargue. One of the papers before us is an impact assessment which, when I look at it, is about the ban on the provision of maritime transportation and associated services for Russian oil, which does not seem to relate to the statutory instruments before us today. In making his opening remarks, can the Minister clarify whether or not there is an impact assessment for those instruments? The instruments themselves say that no full impact assessment has been prepared. It is useful to have somebody else’s impact assessment, but not tremendously helpful to the scrutiny that the Committee is supposed to apply to these instruments.

[The Chair]

Thank you. I will now call the Minister to move the first motion and speak to both instruments. At the end of the debate, I will put the question on the first motion, then ask the Minister to move the second motion formally.

--- Later in debate ---

[Dr Murrison]

On the point of order, the impact assessment we have been provided with is fascinating—indeed, it could be more fascinating than the subject matter of this debate. However, the explanatory notes to the statutory instruments state:

“A full impact assessment has not been prepared for this instrument as no, or no significant, impact on the private, voluntary or public sectors is foreseen.”

There is no impact assessment, but it is nice to see this particular impact assessment, as it looks very interesting indeed.

There are two statutory instruments for the Committee to consider.

[Maria Eagle]

The explanatory notes say that

“A full impact assessment has not been prepared for this instrument”,

which suggests that some kind of work has been done on the impact. Is the Minister able to give the Committee a copy of what impact has been assessed—not a full one, but a partial one?

[Dr Murrison]

I think this might be a matter of semantics, but I can tell the hon. Lady that no impact assessment has been published or produced. I hope that is satisfactory, and I hope that in my remarks, I will be able to clarify why that is and reassure her that there is no need for such an exercise, if that is of any help.

The first of the SIs we are debating today is to establish the tri-service serious crime unit; the second deals with changes to court martial rules in the service justice system. The first SI makes a minor consequential amendment to regulation 8(1) of the Armed Forces Regulations 2009, which in turn was made under the Armed Forces Act 2006. That change is required to support the establishment of the defence serious crime unit, otherwise known as the DSCU. It does so by ensuring that the new Provost Marshal and service police personnel of that tri-service unit are governed by the same legislation as the existing three single-service Provosts Marshal and single-service police forces.

The instrument amends regulation 8(1) to include any reports prepared by, or provided to, the tri-service crime unit to be provided to a person’s commanding officer when referring that person’s case to the Director of Service Prosecutions. This is not new; it is simply something that has arisen as a consequence of the creation of the defence serious crime unit. Although this is only a minor and consequential amendment, the original set of regulations it amends is subject to the affirmative procedure, meaning that this SI must also follow that procedure.

[Dr Murrison]

I saw the Provost Marshal of the defence serious crime unit last week, and the regulations have been worked up by, among others, the Provost Marshal’s service. As I will go on to explain, although I hope it is not controversial, the Armed Forces Act 2021 establishes something quite new and innovative and, as a consequence of the Lyons and Henriques reports, a unit for serious crime. The Provost Marshal, among others, was consulted in the process of drawing up the Armed Forces Act and the regulations that stem from it, which we are debating today. They have not arisen de novo. They are the result of widespread consultation to make sure we get this right. I will come on to this later, but they align what happens in defence more closely with what happens in civilian policing and prosecutorial institutions. I hope that that helps the hon. Gentleman.

I will provide an update on what is happening in the formation of the DSCU if it is of interest to the Committee. A lot of this will not be new to the Committee, but it is worth covering it. Those who were involved in the Armed Forces Act will be familiar with it. Nevertheless, it is important that the Committee is apprised of where we are with the organisation that is about to be stood up.

The Armed Forces Act set out a framework for the establishment of a tri-service serious crime unit for service police and enabled the appointment of a new Provost Marshal. Under the direction of the new Provost Marshal, who was appointed in January and whom I met last week, the MOD has undertaken the necessary prep work for the new tri-service unit to become operational next month. The work has focused on the structure and resourcing of the DSCU and has included the establishment of a defence serious crime command—a strategic command headquarters for the DSCU based at Southwick Park, Fareham, which is home to the Defence School of Policing and Guarding. It has been operational since April.

The defence serious crime command will sit outside the single-service chain of command, ensuring operational independence, giving greater reassurance to victims and building trust in service justice. It will provide strategic direction to the DSCU, allowing the unit to focus on the delivery of serious crime policing. One strategic aim is to improve the capability of defence to deal with the most serious offences. Reservist service police, the majority of whom are civilian police officers, will be better utilised, lending their experience and knowledge, in keeping with a general trend in the use of reservists, which I commend to the Committee, while fessing up that I am myself a reservist.

For staff joining the DSCU, external placements with Home Office police forces will be used, and there will be a continued focus on building single-area specialisms as part of career development. That will be supported by the adoption of civilian policing qualifications in accordance with College of Policing and National Police Chiefs’ Council guidance. I hope right hon. and hon. Members have spotted a theme in benchmarking best practice and ironing out the potential for discrepancies, to which I am committed.

[Maria Eagle]

It is very welcome news that the unit is about to be stood up next month. Can the Minister give the Committee an idea of what the staffing capacity will be? It is good to have the unit, but it has only a couple of people and has to wait for embedded reservists to be trained up. That might not be as effective as we would wish, so can he give us an idea of its budget and staffing capacity?

[Dr Murrison]

The thing will be stood up on 5 December. I confess I have not visited it yet, but I intend to do so very soon. It will have very senior service policemen plus support staff. I cannot give the hon. Lady a figure, but it will be pretty comprehensive. It will include reservists because they are in large part civilian policemen. Although some police choose to join the reserves and become something completely different, the bulk of them continue to serve as police. There is no question of training them up; they are trained already, and the flow of expertise is the other way round, that is to say, from the reservist police to the defence serious crime unit. That comes back to my earlier remark about the need to ensure that we have a level playing field, and that best practice in the service criminal justice sector and the civilian criminal justice sector are broadly speaking the same. I have no reason to suppose that they are not, and Henriques, and before him Lyons and Murphy, suggested that they are.

Nevertheless, it is important that the two sectors operate more or less on the same level, and in particular that some of our service police are exposed to College of Policing disciplines. That is one of the intentions behind the formation of the unit. There will be training— that is ongoing—but I would not want to suggest to the hon. Member for Garston and Halewood that we need to train people specifically for this task. For the most part, they will be doing this already. It is just that we are standing up this separate unit to deal with serious crime. That recommendation stems directly from Lyons, Murphy and Henriques. I hope that that is of some help.

--- Later in debate ---

[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.

[Maria Eagle]

Can the Minister tell the Committee how many cases were delayed as a consequence of the loss of a member of a three-member board?

[Dr Murrison]

I cannot, but the judge has discretion to decide whether the court martial board should be stood down or whether it should continue regardless. I will elaborate on that later.

Judge advocates will have wide discretion to appoint an additional member whenever they feel that it is necessary in view of the expected length or location of the proceedings. This approach is closely based on the existing rule, which currently allows up to two additional members to be appointed in cases that are expected to last more than 10 days, or more than five days in the case of trials being heard outside the UK and Germany.

The third rule change implements Shaun Lyons’s recommendation that there must be a mechanism to cope with the death, sickness or other absence of a member occurring during a trial, which would reduce a six-member board to five members. This reflects section 16 of the Juries Act 1974, under which the default position is that a Crown court trial continues despite the loss of up to three jurors, but the judge can instead choose to discharge the jury, which touches on the point that the hon. Lady made in her intervention. The new rule gives judge advocates the power to direct that proceedings with a four or six-member board should continue

“in the interests of justice”

despite the loss of a member, and this direction can be made at any point after all the members have been sworn in.

The final rule change implements the provision in the Armed Forces Act 2021 to allow personnel at other ranks 7, or OR-7, to sit as members of a court martial. These are senior non-commissioned officers at chief petty officer, staff or colour sergeant, and flight sergeant or chief technician level. This was another recommendation made by Shaun Lyons. Currently, only officers and warrant officers can be members of a court martial, and, unlike a jury in a Crown court, the members assist the judge advocate in sentencing. Sentencing within the service justice system has a number of purposes, not least punishment, deterrence and the maintenance of discipline. OR-7 ranks have the experience and understanding of command and rank, and they are well placed to be involved in the sentencing exercise, which is something in which civilian jurors do not participate.

[Maria Eagle]

I am extremely grateful to the Minister for giving way; he is being very generous. He is referring to the SI implementing a number of recommendations of the Lyons review. My memory of it is that it made a recommendation to move the prosecution of serious crimes committed in the UK, such as murder, manslaughter and rape, from the military courts to the civilian courts, but the SI is not doing that. I think the Government rejected that recommendation. Will the Minister tell us why that was and whether anything has changed in the interim?

[Dr Murrison]

I think we had this conversation on 31 October during the urgent question. The Government take the view that service justice is best discharged using the current arrangements, and Henriques appeared to be comfortable with that. Although I suspect that the hon. Lady will not like the answer, it is felt that the status quo is probably acceptable at the moment, and Henriques has certainly opined favourably on the quality of justice dispensed by the current mechanism. As we discussed on 31 October, there are no current plans to change that, but as with everything, matters are kept under review.

We need to ensure that the quality of justice being dispensed using the parallel justice system is commensurate with, and equal in quality to, that which is dispensed in the wider civilian criminal justice system. From my remarks today, I hope it is clear that my view is that we should ensure that, wherever we can, we have systems with a great deal of overlap—that is to say that one can check off against the other—to assure ourselves that what is being done in one system is not radically different from what is being done in the other, and that the quality of justice dispensed is not different.

I will continue talking about the rationale for extending eligibility for board membership to OR-7s. Doing so will mean that the single services have a wider pool of experienced personnel to draw on, and we will support the new rule to increase the representation of women on court martial boards, which was debated in Committee on 26 October. It may also reduce the burden on officers required on boards where the defendant is of an other rank. The existing rule about all members being senior to the defendant is unchanged, meaning that OR-7 personnel will only be able to serve on boards hearing cases where the defendant is of the same, or a lower, rank.

To sum up, three of these four rule changes were recommended to the Department by Shaun Lyons, a highly respected retired senior Crown court judge. The other rule change reflects a sensible business continuity measure for three-member boards—that is, the additional member to cover the unexpected loss of one of them.