House again in Committee.
Clause 122 [Powers of CO after charge]:
[Amendments Nos. 92 and 93 not moved.]
Clause 122 agreed to.
Clause 123 agreed to.
Clause 124 [Powers of DSP in respect of charge allocated for Court Martial trial]:
Page 60, line 21, leave out “or”
The noble Lord said: In moving AmendmentNo. 93A, I will also speak to Amendments Nos. 93B, 94, 94A, 94B and 139A. Let me set these amendments in context. Up to now, we have been dealing with the way in which the military criminal justice system deals with the most serious offences, including those committed on operations. The integrity of the system is essential to the confidence in which it is held. At one extreme, as we have already discussed, a soldier who acts within the rules of engagement and whose actions are reasonable can be confident that he will be found to have acted within the law. So if he kills somebody in those circumstances, he will not be guilty of murder.
It is just as important that a soldier has confidence in the summary discipline system, which, of course, will continue to deal with some 95 per cent of all service offences. Part of that confidence comes from knowing that he can exercise his right to elect trial by the court martial and that there will be no disincentive to do so.
These are minor amendments that ensure that there is no ambiguity in the provisions that relate to where an accused elects trial by the court martial. I have written to noble Lords about these amendments and trust that, given the reassurance that they will further protect the accused’s position, the Committee will accept them. I beg to move.
On Question, amendment agreed to.
Page 60, line 23, at end insert “; or
(c) where the charge is in respect of an offence which would be a relevant offence for the purposes of section (Sentencing powers of Court Martial where election for trial by that court instead of CO) (election for trial by Court Martial) if the accused were convicted or acquitted of it. ( ) Subsection (3)(c) does not apply in relation to powers under subsection (2)(e) (which are restricted by section 129).”
On Question, amendment agreed to.
Clause 124, as amended, agreed to.
Clauses 125 to 127 agreed to.
Clause 128 [Right to elect Court Martial trial]:
Page 62, line 15, leave out from “accused” to “an” in line 16 and insert “are to be heard summarily together,”
On Question, amendment agreed to.
Clause 128, as amended, agreed to.
Clause 129 [Further consequences of election for Court Martial trial]:
Page 62, line 28, leave out subsections (2) and (3) and insert-
“(2) The Director of Service Prosecutions (“the Director”) may not without the written consent of the accused refer to a commanding officer, under section 124(2)(e)-
(a) that charge (whether or not amended by the Director), or (b) any charge substituted under section 124(2)(b) or additionally brought under section 124(2)(c).”
Page 62, line 40, leave out “(3)(b)” and insert “(2)”
On Question, amendments agreed to.
Clause 129, as amended, agreed to.
Clauses 130 and 131 agreed to.
Clause 132 [Detention: limits on powers]:
Page 65, line 11, leave out “90” and insert “60”
The noble Earl said: In moving AmendmentNo. 95, I shall speak also to Amendments Nos. 96 and 162 but not to Amendments Nos. 97, 160 and 161.
Everyone in the Armed Forces dreads the term “military detention”. But the Committee will be aware that it is very effective not just as a punishment but for personal development. Military detention is a good thing; it is not like prison.
Sixty days’ military detention is quite sufficient. I agree that the Royal Navy has in the past enjoyed90 days as a maximum, with extended powers from superior authority, but if the Army could survive for so long with a detention period of only 60 days, why does it now need a 50 per cent increase?
Clause 294, to which Amendment No. 162 relates, sensibly provides that a person sentenced to service detention may not be detained in a prison, because detention is not imprisonment—it is much better and much more effective. However, there is no provision for flexibility, so what happens in the event of a vehicle breakdown or perhaps a fire in the intended accommodation or some other emergency? The servicemen need to be kept in detention. The obvious solution would be to put them in a prison overnight, but to tell the prison authorities to look after them and perhaps treat them as remand prisoners. I do not understand why there is no flexibility in the sensible provision prohibiting servicemen who are in detention from being kept in a prison. I beg to move.
I support Amendments Nos. 95 and 96 of the noble Earl, Lord Attlee. In our discussions with the Bill team, we have spoken on occasions about the difficulty of harmonising the various traditional punishments available to the three services, which have differed over the years. I agree with the noble Earl that it seems unnecessary in this case to harmonise upwards from 60 days to 90 days to accommodate the Royal Navy, detention being different from imprisonment.
However, I disagree with the noble Earl on his Amendment No. 162. Given that the offences for which detention is imposed are, by their nature, less severe than those that would bring imprisonment, we do not need to include circumstances in which people may be put in prison when they have been sentenced to detention.
The powers of punishment that a commanding officer should be able to impose have been very carefully considered by the Ministry of Defence. In determining that 90 days should be the maximum period of detention that a commanding officer can impose, we sought to balance the needs of each of the services, to avoid any unnecessary increase in the numbers of courts martial and to ensure fairness to individuals who face charges. Summary justice has the distinct advantage of providing a speedy but fair outcome for an accused person.
However, we have also included significant protections in the exercise of these powers. In particular, the power to impose any period of detention that is greater than 28 days will require a commanding officer to get agreement from higher authority. The accused will know before a hearing whether the commanding officer has been given such authority. There will also be a universal right to elect; there will be an automatic right to appeal; and sentences of detention will not begin until the time for an appeal has elapsed or an appeal has been heard, unless the accused agrees to the detention starting before then.
Under Clause 294, those sentenced to service detention may be held in service custody, but not detained in prison. Modern transportation and the availability of service custody facilities for temporary accommodation mean that it would never be necessary to accommodate someone in a civil prison—and there are no longer any military prisons. Amendment No. 162, which provides for this, is therefore unnecessary. I hope that the noble Earl feels able not to press his amendments following my explanations.
I am grateful for the Minister’s response. First, he said that to impose a sentence in excess of 28 days should need a higher authority’s permission, but that has always been the case. It is not a new provision, certainly as far as the Army is concerned. How often has the Royal Navy used a period of detention in excess of 60 days? Does the Minister have any evidence on that? If he does not have it to hand, perhaps he could write to me and let me know how often that has happened.
I am grateful for the Minister’s response to Amendment No. 162, although I can understand noble Lords’ lack of enthusiasm for it. I am grateful for his assertion that it will never be necessary to resort to putting servicemen in a prison. If that is his assessment of the situation, that is fine. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 96 not moved.]
Clause 132 agreed to.
Clause 133 agreed to.
Clause 134 [Reduction in rank: limits on powers]:
[Amendment No. 97 not moved.]
Clause 134 agreed to.
Clause 135 agreed to.
Clause 136 [Service compensation orders: maximum amount]:
I remind noble Lords that if Amendment No. 98 is agreed to, Amendments Nos. 99 and 100 cannot be moved.
Page 67, line 16, leave out subsection (3) and insert-
“(3) If it appears to the Secretary of State that there has been a change in the value of money since the relevant date, he may by order substitute for the sum for the time being specified in subsections (1) and (2) such other sum as appears to him justified by the change.
(4) In subsection (3) “the relevant date” means-
(a) the date of the coming into force of this section; or (b) where the sum for the time being specified in subsections (1) and (2) was substituted for a sum previously so specified, the date of the substitution.”
The noble Lord said: Amendment No. 98 meets the points addressed in Amendments Nos. 99 and 100 on the power to increase the maximum level of compensation, and I urge noble Lords to accept it. I beg to move.
There are three amendments all aiming to achieve the same thing, and I add my support for this one. I am very happy with the Government’s amendment.
On Question, amendment agreed to.
[Amendments Nos. 99 and 100 not moved.]
Clause 136, as amended, agreed to.
Clauses 137 to 139 agreed to.
Clause 140 [Right of appeal]:
Page 68, line 38, leave out “14” and insert “28”
The noble Lord said: This is by way of a probing amendment to see what surveys have been done by the Ministry of Defence to see how easy it is for a case for appeal to be put together by a defendant in the timescale of 14 days, which has been the practice in the past.On the face of it, it a seems a rather short time under certain circumstances. My suggestion of extending it to 28 days was purely a suggestion. Before we simply accept that the practice of the past is right, we need to know how much work has been done to check that it does work.
My Amendment No. 105 in this group seeks to make it clear that time spent in detention counts fully towards the sentence, not just that it counts towards the sentence. I beg to move.
I have amendments in this group. The Bill covers the composition of the court martial. It states that, to be on a court martial, an officer must have an aggregate of three years’ commissioned service. However, there is a difficulty with that. He could have had two years’ commissioned service several years ago, a gap in service and then come back into the services and suddenly find himself on a court martial. I suggest that he should have three years’ continuous service before being on a court martial. I appreciate that would slightly reduce the pool of officers available for courts martial but, on the other hand, it would improve their quality.
Clause 142(2) states that,
“immediately before receiving his commission, he was a warrant officer in any of those forces”.
The difficulty here is that sometimes senior NCOs, perhaps a staff sergeant or equivalent, are commissioned. That person has plenty of military experience and the qualities to enable him to be commissioned but he cannot be on a court martial because he was not a warrant officer immediately before being commissioned. I shall be interested to hear the Minister’s views on that point.
I wish to address the amendments of the noble Earl, Lord Attlee. I support those that look for continuous service, which seems an entirely reasonable idea. However, I have a problem with commissioned senior NCOs. The variation between the services is important here. In the Air Force, and presumably in the Army Air Corps as well, some senior NCOs have relatively short service because they have gained professional qualifications and have come in at senior NCO level. Therefore, they would not fulfil these requirements when commissioned. The relevant amendment needs to be looked at more closely.
This group deals with amendments to the Summary Appeal Court—Amendments Nos. 101 to 105, relating to Clauses 140, 142 and 146. I shall focus on those amendments first. The Summary Appeal Court was first introduced under the Armed Forces Discipline Act 2000. The services have therefore had almost six years of practical experience of it. This has helped us considerably in drafting the Bill in that regard.
With regard to Amendment No. 101 to Clause 140, we think that the 14-day initial period, which currently applies under the service discipline Acts, is one that sufficiently balances the interests of the offender, the services and the system generally. It must be remembered that there is an automatic right of appeal. So the individual is merely required to give notice of his intention to appeal and does not need to supply any grounds within this 14-day period. There is provision in Clause 140(2)(b) and (3) for this initial period to be extended with the leave of the court, either before the initial period expires or at a later stage. So in appropriate cases the offender will be permitted a longer period.
One of the most important benefits of the summary hearing process is that it can deal with cases quickly. As long as this is balanced against the need for the accused to have a reasonable time in which to prepare his case, then dealing swiftly with summary cases, and that includes any appeal, should be the objective. This works in the interests of the accused, any victim and the interests of the services.
To extend the initial period for appeal to 28 days would not assist in the aspiration that such lower level cases be heard and disposed of as soon after the original incident as is reasonable. There are no factors that suggest that the current 14-day period is causing any difficulty for appellants or unfairness. In those circumstances, I hope that the noble Lord will withdraw his amendment.
Amendments Nos. 102 to 104 all relate to the period that an officer must have served before he is qualified to sit as a member of the SAC. First, they remove the provision that officers with an aggregate of three years’ commissioned service are qualified, so that only those with three years’ continuous experience would be qualified. Secondly, an officer who was a warrant officer is not subject to a three-year qualification. The amendment seeks to apply this exception to officers who were senior non-commissioned officers before they became commissioned officers. The provisions in the Bill ensure that those who act as a member of the Summary Appeal Court will have sufficient service experience, including the experience of commanding others, to properly undertake their responsibilities as a Summary Appeal Court member.
Not all commissioned officers will have served continuously for a three-year period but will have over three years’ aggregate experience. Some officers will have left their service and subsequently rejoined, or may have left their service to join another. The experience level of such officers is not diminished simply because of a break in their service. The amendments would have the effect of preventing such officers being appointed as a member of the Summary Appeal Court and would therefore reduce the pool of those who might be appointed as a member. It is not right or sensible to disqualify certain officers who possess the necessary skills and experience from membership of the SAC.
On the second point, a warrant officer is qualified on the basis of the skills and experience that he will inevitably have acquired. A senior non-commissioned officer will not always have acquired those, and it would not therefore always be appropriate for an officer to qualify for membership simply because he previously held that rank. I therefore ask the noble Lord to consider not moving his amendments.
On Amendment No. 105, I can reassure noble Lords that the clause as drafted means that the whole period which the appellant has served will be taken into account when the SAC considers substituting a term of detention and the length of it. The inclusion of “full” adds nothing. I trust, therefore, that the noble Lords will feel able to not move this amendment.
Finally, I will deal with the government amendments in this group, which simply change the reference from the “Supreme Court” of Northern Ireland to the “Court of Judicature”. The Supreme Court of Northern Ireland is renamed under the Constitutional Reform Act 2005 as the Court of Judicature of Northern Ireland. Although that term has not yet been commenced, it makes sense for the Bill to reflect it. It occurs first in Clause 142 in relation to membership of the Summary Appeal Court and then in Clauses 155, 348, 358, 359 and in Schedule 9, where there is a need to refer to specific legal qualifications including those of Northern Irish solicitors and barristers. I urge noble Lords to accept these amendments.
I ask the noble Lord whether he would care to take into account that in Clause 140 “14 days” is in effect covered by subsection (2)(b), which is consistent with the way that the High Court, or any other court, manages its affairs. It is not a cut-off date.
I am entirely happy with the government amendments, which are tidying-up amendments, and there is no problem there. I am also grateful for the assurance on my Amendment No. 105, that this will be interpreted as counting fully towards a sentence.
I am less enthused by the Minister’s response both to my Amendment No. 101 and to the amendment tabled by the noble Earl, Lord Attlee, on continuous service. He described very well what the Bill is trying to do, but he did not actually answer our questions. It seems to me that the Minister needs to respond. I asked what surveys had been done to make sure that 14 days is sufficient. I was not attached particularly to 28 days, so there was no point arguing against my28 days. I want to know whether we have done some work to see whether this is reasonable.
On the noble Earl’s amendments, we heard a similar restatement of what is in the Bill, but we did not hear why what is in the Bill is right, as opposed to what the noble Earl proposes.
I am grateful to the noble Lord and I apologise; I did not address his question relating to surveys. I will go back to the department and ask for an explanation as to the level of research carried out in this area and write to the noble Lord. I shall write also to the noble Earl with further details in response to his points.
I am grateful for the Minister’s response to my amendments; however, I am not convinced by his response to my Amendments Nos. 102 and 103 regarding continuous service. I am grateful for the support given by the noble Lord, Lord Garden, to those. However, I am grateful for the Minister’s response to Amendment No. 104 and I better understand the Bill’s provisions. I agree with the noble Lord, Lord Garden—for example, in my own corps, it is possible to be promoted to sergeant in a technician trade fairly quickly although he may not have sufficient experience. I did not properly understand the Bill’s drafting, but I do now.
Page 69, line 39, leave out “Supreme Court” and insert “Court of Judicature”
On Question, amendment agreed to.
Clause 142, as amended, agreed to.
Clauses 143 to 145 agreed to.
Clause 146 [Powers of the SAC]:
[Amendment No. 105 not moved.]
Clause 146 agreed to.
Clauses 147 to 152 agreed to.
[Amendments Nos. 106 to 116 not moved.]
Clause 153 agreed to.
Clause 154 [Constitution of the Court Martial]:
Page 75, line 12, leave out “a prescribed number of” and insert “five or seven”
The noble Lord said: This part of the Bill deals with trial by the court martial and Clause 154 deals with its constitution. We are seeking drastically to alter the way in which the court martial panel is chosen and to prescribe the number of people on it. The first amendment in the group is to subsection (1)(b), whereby the court martial would consist of a judge advocate and “five or seven” other persons, of whom,
“a prescribed number must be officers or warrant officers”.
Then, by amendment, we seek that the rest may be drawn from all ranks who are qualified for membership and not ineligible under the clause.
The amendment to subsection (1)(b)(ii) is to make provision in the court martial rules that the persons specified in subsection (1)(b) shall be drawn from each and every branch of the armed services. Then, under subsection (4), we seek that the members of the court are not to be specified by or on behalf of the court administration officer but selected by a ballot from a pool constituted of people eligible to sit as members of the court martial.
In the same group, we go on to suggest a new clause after Clause 156 specifying that to qualify for membership of the court martial a person should simply be a serving member of the Armed Forces and subject to service law. It excludes only people who are, for example, members of the court service, members of the Military Police or those who have been involved in an investigation. That important alteration would open up the court martial across all ranks and not confine it, as at present, simply to officers, usually a single warrant officer.
We also seek to include with these amendments the question of reports. Amendment No. 129 states:
“No report of any description shall be made referring, whether favourably or unfavourably, to the decisions of any member of the court when sitting in the Court Martial”.
Members of the Committee will recall that I referred earlier to that as being an answer to the Morris point, where the European court had held that the court martial system, which enabled junior officers to be reported for the purposes of files, might affect the future career of those officers according to the way in which they conducted themselves in the court martial.
Finally, we deal with the question of unanimity or, alternatively, majority verdicts, but in a very different way from the present type of majority verdict, which is a simple majority.
Therefore, this is a complete recasting of the composition of the panel and, in many ways, it mirrors the evidence given by the Judge Advocate General, Judge Blackett, to the Select Committee when he was asked questions about it. Members of the Committee will recall that I have already referred to the fact that he wishes the court martial system to approximate as closely as possible to the civil Crown Court procedure in all the circumstances.
I shall deal with these points in a number of ways. I turn, first, to the ability to have on the court martial members of all ranks. This would be quite different from the present situation. To my mind, one objection to the court martial system is precisely that the private soldier who appears before the court martial is appearing in front of officers or a very senior warrant officer, and that is an intimidating experience on any view. It does not begin to approximate the Magna Carta requirement of a trial by one's peers. The only way in which it can be said to comply with it is that Magna Carta requires a trial by one's peers or according to the law of the land. It is on that second part that, in argument in the House of Lords, the Government relied in the case of Boyd and others.
That this is not such an amazing departure can be evidenced by the Universal Code of Military Justice, which was adopted in America in about 1952-53, when it was determined that the American system of courts martial was not compliant with the United States constitution. I am sure that it has been amended from time to time—certainly, an amendment is now part of Article 25. Your Lordships will forgive me if I read it because it illustrates how another common law country with a great tradition and all the safeguards of due process, which are contained in the constitution, has interpreted this problem.
Article 25(c) states:
“Any enlisted member of an armed force on active duty who is not a member of the same unit as the accused is eligible to serve on general and special courts-martial for the trial of any enlisted member of an armed force who may lawfully be brought before such courts for trial, but he shall serve as a member of a court only if, before the conclusion of the session called by the military judge … prior to the trial or, in the absence of such a session, before the court is assembled for the trial of the accused, the accused personally has requested orally on the record or in writing that enlisted members serve on it”.
The first requirement in the American code is that there is a request by the defendant. It continues:
“After such a request, the accused may not be tried by a general or special court-martial the membership of which does not include enlisted members in a number comprising at least one-third of the total membership of the court, unless eligible enlisted members cannot be obtained”.
Once the request has been made, the second requirement in the American code is that one third, at least, be enlisted men. The code continues:
“When it can be avoided, no member of an armed force may be tried by a court-martial any member of which is junior to him in rank or grade”.
That provision exists in this country. Although the defendant may require enlisted men if he is of the rank of sergeant or whatever, he cannot have people of lesser rank dealing with it. It continues:
“When convening a court-martial, the convening authority shall detail as member thereof such members of the armed forces as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service and judicial temperament. No member of an armed force is eligible to serve as a member of a general or special court-martial when he is the accuser or a witness of the prosecution or investigating officer”.
The authority that convenes has regard to the particular people who are part of the pool from which the court martial is chosen: a request from the defendant, one third of the membership, nobody of a rank below that of the defendant, people chosen for their experience, and so on. Those are the requirements in America. I see no reason why a similar system cannot be properly introduced in this country. One of the problems of the system is that there are class divisions within it. That is contrary to the temper of the United Kingdom in this day and age.
I turn from that proposition to the one that the court martial, while not having to be unanimous, must by a significant majority find guilt before guilt can be established. In our amendment, where there are no fewer than seven members of the court, five of them must agree on the finding, and where there are five members of the court, four of them must agree. Where there is a non-unanimous finding of guilt, the president has to state in open court the number who agreed and the number who dissented from that finding. That is the equivalent of the majority verdict that exists in this country, and no doubt there would be directions by the judge advocate to the panel along the lines of the directions we are familiar with in the Crown Court.
I refer again to the American experience, just to illustrate that these are not outrageous suggestions. The requirements in Article 52 of their code are that no person may be convicted of an offence for which the death penalty is made mandatory, except by unanimous verdict; no person can be convicted of any other offence unless two-thirds agree to that conviction; and no person is sentenced to life imprisonment or to confinement for more than 10 years unless three-fourths of the panel agree to those verdicts. The system in the States is much more conscious of due process. When they have majority verdicts, it is not just the simple majority that exists in this country.
The argument that is always put for the other side is that magistrates decide by a majority, as may the Court of Appeal. In those circumstances, magistrates and judges are trained and experienced in court proceedings. When you are dealing with a panel of a court martial you are dealing with people who are not trained or experienced. They are much more akin to the juries we are familiar with.
It is fairer and more within the spirit of the European Convention on Human Rights that we adopt majority verdict along the lines I have suggested in this amendment. It may be a considerable change from the present, but, supported by the chief judge of the system, I feel I am in a position to ask your Lordships to consent to it. I beg to move.
My Amendments Nos. 123 to 125 concern the continuous service of members of the panel. We have covered that point already, and do not need to go back to it. My Amendments Nos. 118 and 119 are similar to the points raised by the noble Lord, Lord Thomas, on Amendments Nos. 117 and 130 about majority verdicts. The subject has been far better covered by the noble Lord than I could possibly do.
I am worried about the issue of majority verdicts. We do not know how the panel in a court martial comes to its decision. Does it seek to be unanimous, or does it vote formally? We simply do not know. My Amendment No. 131 allows research into the operation of the panel, but with some restrictions.
I am afraid that I do not support the noble Lord, Lord Thomas, on the “recasting”, as he put it, of the panel. I believe that it should be composed of officers and warrant officers. If we want to go down that route, we ought just to go for the Crown Court in the UK and completely forget about courts martial. We do not want to go that way, though.
The noble Lord, Lord Thomas, said it would be intimidating for a serviceman to come before a court martial with the panel in front of him. I suspect that being cross-examined by the noble Lord is a bit intimidating as well. Another difficulty is that junior soldiers would not be trained and would not be experienced enough to decide these matters. The noble Lord touched on that as another difficulty. Sitting on a court martial is a bit much to ask of junior soldiers. Worse still, they may be a bit too quick to convict. It is important to remember that the panel is not supposed to be a jury; it is acting more as a judge. These are interesting matters to be raised.
We are getting ahead of ourselves. My noble friend Lord Attlee is dealing with Amendment No. 131. I shall not speak to it now, but I oppose it outright. In the context of the amendment tabled by the noble Lord, Lord Thomas of Gresford—as we are going ahead a bit—if we look at Amendment No. 132, there are two types of majority. In due course, I shall speak to Amendment No. 132, but not now. What I am getting at is that these interrelated amendments are disparate because they relate to disparate clauses, but is it not possible for the structure to be withdrawn by the Government so that all these matters can be considered in relation to each other at the same time without the type of pre-emption we are having at the moment?
I shall begin with Amendments Nos. 117, 118 and 119 relating to Clause 154. Having listened to the arguments made by noble Lords in support of these amendments, I accept that there may be benefits in stipulating the minimum and maximum numbers of lay members who may sit at a court martial. I am clear, for example, that there would never be fewer than three members of a court martial, excluding the Judge Advocate, but I need to look at the implications of putting that on the face of the Bill. I will review the wording and, if I can, I shall bring forward an amendment on Report.
Amendment No. 122, which goes to Clause 154, requires those who are chosen to act as lay members to be selected by a ballot system. I assume that the purpose of the amendment is to ensure that each member is randomly selected. This amendment is unnecessary because each service has a broadly similar system for selecting lay members that embrace the principle of random selection. That random selection produces a pool of qualified personnel from which court administration officers appoint members unless they are ineligible. Personnel who are serving on operational tours are not selected.
Under the Bill, the intention is to continue to select personnel in a similar manner. Setting out a requirement for a balloting system on the face of the legislation might place an unnecessary burden on the system or create unfairness. There must be flexibility in the methods of appointing court members in order to take into account their services’ organisational and operational requirements.
The main effect of Amendment No. 120 toClause 154 and Amendment No. 128—the new clause—appear to be that persons of any rank would be qualified to act as lay members of the court martial. This amendment would not be welcomed by the services. Operational effectiveness underpins the military justice system. We think that court-martial members must have sufficient service experience, which includes having experience of commanding others. Those below the rank of warrant officer or newly commissioned officers will not always have this experience. Clause 155 in the current Bill was drafted on that basis.
On the issue of personnel from different services on courts martial, it is possible that this new clause after Clause 156 also seeks to ensure that the lay members of the court always comprise personnel from different services. The current wording of the Bill already allows for this. However, in most cases it is intended that the defendant will appear before a court made up of personnel from his own service. This was the preference of the First Sea Lord and the Chief of the General Staff who in their evidence to the Select Committee said that there should be a presumption for a single service board unless there is a good reason for a mixed board to be appointed—for example, when defendants from different services are tried together.
Amendment No. 121 is, with respect to the noble Lord, unnecessary. Service personnel appointed to act as court members are currently drawn from all parts of their respective services. That will continue under the Bill. I believe that this matter is better dealt with in guidance.
Amendments Nos. 123, 124 and 125 go to Clause 155. I have talked about eligibility for membership of the court martial and I will not go further on that matter. In responding to the points made by the noble Earl, Lord Attlee, and the noble Lord, Lord Garden, relating to continuous or aggregate service, it may be useful for me to state that we believe that a person who has been an officer for three years has considerable command experience, and we do not believe that he will lose this simply because he has a break in that experience.
Amendments Nos. 126 and 127 to Clause 156 are unnecessary. As I have explained when dealing with Amendment No. 122, the services have three separate but broadly similar systems for selecting lay members which embrace the principle of random selection. Given this selection procedure, although it is not impossible, it is highly improbable that a person would be repeatedly appointed as a member of the court martial within an 18-month period.
I understand the background to AmendmentNo. 129, but, as I said in my response to the chairman of the Joint Committee on Human Rights, we do not think it necessary or appropriate to take one element of the system—that relating to reporting procedures—and deal with it in legislation. What we have to ensure is that in practice all aspects of the system provide the necessary guarantees and impartiality including, as now, a prohibition on all reporting on the performance of the relevant participants. It is not necessary to make provision to this effect in the Bill. As with the decisions of jury members and others required to decide on the guilt of those accused of offences, the decisions of the members of the court martial should remain confidential.
Currently, all members of a court swear under oath at the start of the trial not to disclose the vote or opinion of any of the members unless required through some legal obligation. Additionally the judge advocate reminds the members of their duty in this respect at the end of the hearing. It is intended that the same practices will continue at the court martial under the Bill.
I deal next with Amendment No. 130 tabled in respect of Clause 159. The part of the amendment which prevents decisions being made on the basis of a simple majority is unnecessary.
I have listened carefully to the arguments made by the noble Lord, Lord Thomas of Gresford, and his helpful description of the US system. I have also noted carefully the point he made about the fact that magistrates are trained. I will reflect on that, but we believe that the amendment is unnecessary. As he described, a summary trial in the magistrates’ courts may be decided on the basis of a simple majority and most of the cases tried by the courts martial are akin to magistrates' courts trials, but I take on board his point about magistrates being trained. I will go away and reflect on that.
With his experience, I am sure that the noble Lord is quite aware that many other jurisdictions allow simple majority verdicts, so I shall not labour that point here. I think that it is fair to say that there is nothing irregular or unsafe about a decision based on a simple majority vote system. Equally, we believe that it is unnecessary to require that a period of time must have elapsed before a decision based on a non-unanimous vote of members can be accepted.
We believe that the proposal that the president should be required to state in open court the number of those who did not believe the accused to be guilty is inappropriate. As I said, the decisions of courts martial must be confidential. Disclosing those details would not be in the interests of justice, as that might influence the decisions of court martial members, even if the identity of those dissenting or agreeing to the guilty verdict was not revealed.
I turn to Amendment No. 131, and take on board the point made by the noble Lord, Lord Campbell of Alloway, about the structure with reference to Amendment No. 132. Focusing on Amendment No. 131, forthe reasons that I gave about the amendment toClause 159, it would be inappropriate to introduce a provision of this type. Again, I underline that we believe it to be vital that the decisions made by the members of the court martial remain confidential. If members of the court martial knew that the decision that they made might be disclosed, even if only for research purposes, they might be unduly influenced, regardless of whether those researching matters are placed under the same duty of confidentiality as court members.
The amendment does not specify which members’ decisions might be the subject of such research, so it might therefore extend to the judge advocate's decisions. It would be highly inappropriate for the decisions made by the judge advocate to be disclosed for such purposes and would not reflect any practice adopted in the civilian criminal justice system.
I am grateful for the Minister's response to my amendments, but precautions are taken to ensure that panel members are not in the same chain of command as the accused. If the accused is in one division, the panel members cannot be in that division. There are obvious reasons for that. However, how can the accused be sure that members of the panel have not been specially selected to get the right result? How can he be confident of that?
The Minister called to his aid the views expressed by very senior members of the armed services when they gave evidence to the Select Committee. I hope that he will give more weight to the view of the Judge Advocate General, who was for many years a serving officer in the Royal Navy and reached the heights of being Judge Advocate for the Fleet before he became Judge Advocate General. So his daily experience of the courts martial system is not to be ignored—I do not suggest that the Minister is ignoring it, but there is a great deal of weight to his view. Let us take for example his answer to the Select Committee on the number of members of the panel. He was asked by Mr Robert Key:
“You say: ‘For such a small panel to try more serious matters and impose long prison terms is objectionable’. Why is it objectionable?”.
“Because it is too far removed from the civil system … A panel of three, ie three lay magistrates, have a certain limit to their powers of punishment and this is so far removed that it seems to me objectionable for those reasons”.
There is a great deal of weight in that. Magistrates have the power of imprisonment of only six months, or perhaps 12 months in the case of consecutive sentencing, whereas the court-martial system, particularly if it is dealing with mandatory life sentences for murder cases and so on, has an almost unlimited power of imprisonment.
Judge Blackett was then asked by Miss Vera Baird, who herself is a very experienced advocate, about same-service panels. His response was,
“I think the premise upon which the Act is based is that there is a requirement for a single system of Service law because of operating patterns and more operating together and that sort of thing. If that is your initial premise then the panel membership should be a single system of Service law as well … that is the logic of it. If you say no you need to have solely Army, solely Navy or solely Air Force panels then you are undermining your own argument for a single system of law”.
I fully commend that answer, which seems to make a great deal of sense. We are putting together a whole system of law, as the Minister has said today, that is not meant to draw distinctions between the various services. I put it to the Minister that he is advocating one-service panels only because of pressure from the services and their pride in the particular service to which they belong. That is not a good enough reason for continuing with the philosophy behind having a single-service legal system, which the Minister has outlined to us today.
I am pleased that the Minister will reconsider the question of majority verdicts. I hope that he does, and if I can contribute by discussing the matter with him and others on such topics, I shall be delighted to do so before Report. This is a real opportunity to do something to bring the whole system up to date and to introduce a system of justice for members of the services that fits with the legal mores of the 21st century. There is too much harking back to the past in the services’ opposition to change. It is natural; they are used to it. But we think that we should be looking at a broader picture to ensure that no serviceman can feel that he has not had a fair and just trial if he is convicted of a serious offence. For the moment, and pending further discussion, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 118 to 122 not moved.]
Clause 154 agreed to.
Clause 155 [Officers and warrant officers qualified for membership of the Court Martial]:
[Amendments Nos. 123 to 125 not moved.]
Page 76, line 5, leave out “Supreme Court” and insert “Court of Judicature”
On Question, amendment agreed to.
Clause 155, as amended, agreed to.
Clause 156 [Officers and warrant officers ineligible for membership in particular circumstances]:
[Amendments Nos. 126 and 127 not moved.]
Clause 156 agreed to.
[Amendments Nos. 128 and 129 not moved.]
Clauses 157 and 158 agreed to.
Clause 159 [Decisions of Court Martial: finding and sentence]:
[Amendment No. 130 not moved.]
Clause 159 agreed to.
[Amendment No. 131 not moved.]
Clauses 160 and 161 agreed to.