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Armed Forces : Legal Representation

Volume 734: debated on Wednesday 25 January 2012


Asked by

To ask Her Majesty’s Government whether they propose to pay the legal costs of the Territorial Army soldier who has been interviewed under caution in relation to an incident in Afghanistan in the summer of 2010.

My Lords, it would be inappropriate for me to comment on a case currently being considered by the independent Director of Service Prosecutions, but legal aid is available for all personnel, including reservists, who are subject to service law or service discipline at the time of an alleged offence, through the Armed Forces Criminal Legal Aid Authority. The scheme is based on the same principles as civilian criminal legal aid in England and Wales and is designed to mirror it, while making necessary adjustments for service life.

My Lords, I readily accept that it would be quite wrong to comment on any particular case that may or may not come before the courts, but is it not right that the Ministry of Defence—as, in effect, the employer of soldiers, sailors and airmen—should cover their proper legal costs when the need arises, and not leave them to the vagaries of the legal aid system?

My Lords, as my noble friend said, I will not be able to respond to specific questions on this case; the department must protect the personal data of our employees, and I do not wish to prejudice any possible future disciplinary or administrative action. However, I can say that the MoD will pay for the defence of an individual charged with an offence that is committed in the course of their duties and while acting in accordance with any applicable regulations or direction. However, where someone may have fallen short of the high standards we expect of our personnel, it must be investigated and, if appropriate, proceed to trial. In this situation, legal aid funding will provide representation according to the charge and the defence case, engaging counsel if and when appropriate. All legal representatives used by the Armed Forces Criminal Legal Aid Authority are civilian solicitors or barristers registered with the Law Society or the Bar Council. By funding appropriate legal representation, we are confident that the Armed Forces legal aid scheme well serves individuals subject to the service justice system.

My Lords, as chairman of the Association of Military Court Advocates I wonder whether my noble friend will accept that, as the results have shown, there are many skilled lawyers who will appear for the defence in the most serious cases involving the military?

My Lords, I am sure that the noble Lord will agree that we are very lucky in this country to have some amazing men and women volunteering and serving as reservists. However, is it not a huge risk to assume that reservists can fulfil on a very large scale the tasks that are done by regulars? With the current reduction in Regular Forces and increased reliance on reservists, this will be a major problem militarily.

My Lords, we are not assuming that they will fulfil the role of the Regular Forces. That is not the case at all.

My Lords, can my noble friend reassure the House about the independence of this process? Who conducts the investigations, and who makes the decision on whether to prosecute?

My Lords, each of the services has its own service police who derive their powers from the Armed Forces Act 2006 and are independent of Ministers and the chain of command for the purposes of investigations. In the case of the Army, the Royal Military Police special investigation branch conducts investigations. Decisions on what charges should be faced by any soldier are taken by the independent Service Prosecuting Authority, which is under the general superintendence of the Attorney-General. Neither Ministry of Defence Ministers nor the chain of command play any part in such decisions.

My Lords, does the Minister agree that when a member of our Armed Forces is asked to revisit traumatic events in which they were involved in the course of a tour of duty and which may lead to legal action, they are often in need not only of legal support but of pastoral and counselling support? What is his degree of satisfaction that such levels of support are readily available to them?

My Lords, I can assure the right reverend Prelate that a great deal of support is given to reservists both while they are serving and after they have left their operational tour.