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Armed Forces (Retrial for Serious Offences) Order 2013

Volume 747: debated on Monday 8 July 2013

Considered in Grand Committee

Moved by

That the Grand Committee do report to the House that it has considered the Armed Forces (Retrial for Serious Offences) Order 2013.

Relevant document: 5th Report from the Joint Committee on Statutory Instruments.

My Lords, there are two instruments for consideration today, the Armed Forces (Retrial for Serious Offences) Order 2013 and the Armed Forces (Court Martial) (Amendment) Rules 2013. I shall say a few words on each, starting with the former. For your Lordships’ convenience, I shall refer to it as the retrial order.

This instrument enables persons acquitted of certain very serious offences by a service court—for example, the court martial—to be retried in the service justice system. This may happen only if new and compelling evidence comes to light in relation to those offences and if it is in the interests of justice for a retrial to take place. These are high hurdles to clear.

Our purpose in making this order is to follow the same path as Part 10 of the Criminal Justice Act 2003, which reformed the law relating to double jeopardy. Before the 2003 Act, a person who had been acquitted of an offence could not be retried. The 2003 Act changed the law to permit retrials in respect of a number of very serious offences where new and compelling evidence has come to light, but separate provision is required to apply this to our service justice arrangements.

We are now filling that gap. I do not want to give the impression that this measure is driven by specific concerns about members of the Armed Forces who are evading justice because they cannot currently be retried. It is intended simply to bring the two systems of justice into line on this matter, extending the same principles from one to the other; nor would I want to give the impression that we are doing this now for any reason other than we want to have the legislation ready.

The Armed Forces (Retrial for Serious Offences) Order makes provision for the retrial of persons previously acquitted in the service justice system of a “qualifying” offence. Qualifying offences are set out in Schedule 1 to the order. They include a very limited number of criminal offences—such as murder, manslaughter and rape—and, because this legislation is for the services, a small number of disciplinary offences, such as assisting the enemy.

The order sets out the arrangements governing the investigation, charging and application for a retrial of an acquitted person for a qualifying offence. Retrial is a complex matter and there are, as I said, high hurdles to get over first. In broad terms, the order will enable the service police to reinvestigate the commission of a qualifying offence by a person previously acquitted of the offence. Investigative measures may, in most cases, occur only if the Director of Service Prosecutions consents; and he may only give his consent if he is satisfied that it is in the public interest to proceed with an investigation and that there is either some new evidence that warrants an investigation or some evidence would come to light if the investigation takes place.

However, there is a power for service police to take investigative steps without the consent of the Director of Service Prosecutions if it is necessary to do so to prevent the investigation being prejudiced. Additionally, a person previously acquitted of a qualifying offence may be arrested only if a judge advocate has issued a warrant for their arrest. Where a person has been charged with a qualifying offence, and if the Director of Service Prosecution consents, a prosecuting officer may apply to the Court Martial Appeal Court for an order to retry the person. Where such an application is made, the court must make the order applied for if it is satisfied both that there is new and compelling evidence against the acquitted person and that it is in the interests of justice to do so. As the Committee will recognise, therefore, a strong set of safeguards has been built into the new procedures.

It is important to clarify the position of those who have left the Armed Forces. In most cases, there are strict limits in place that prevent former service personnel being charged with a service offence when they have been out of the Armed Forces for more than six months. However, this time limit can be waived if the Attorney-General consents. The time limit applies in relation to all former service personnel who are suspected of committing a service offence and not just to those who might face retrial. These provisions also apply to civilians subject to service discipline.

The order also makes provision for the production of evidence and attendance of witnesses at the hearing. It creates a right of appeal to the Supreme Court. There is provision for the Court Martial Appeal Court to make an order restricting the publication of material which might otherwise prejudice the administration of justice and, furthermore, it makes it an offence for a person or an organisation to breach an order prohibiting publication. It provides for the period of time in which certain arrangements for the retrial must be made and for the holding in custody, and release from custody, of a person, previously acquitted, who is charged with a qualifying offence. There are also a small number of supplementary provisions relating to the rules governing the service of documents and the exercise of functions of the Director of Service Prosecutions and the Court Martial Appeal Court.

I now turn to the second order, the Armed Forces (Court Martial) (Amendment) Rules 2013. The court martial was established by the Armed Forces Act 2006 as a standing permanent court that replaced the system of ad hoc courts martial that were convened by the services. The court martial may sit anywhere, within or outside the United Kingdom. It comprises a civilian judge, known as the judge advocate, and lay members—sometimes referred to as the board members—who are usually officers or warrant officers. Its rules of procedure are set out in the Armed Forces (Court Martial) Rules 2009. I shall call these the 2009 rules. These broadly follow those that apply in the civilian system, but reflect the different make-up of the court martial. The main purpose of the second instrument before us today is to amend these rules, specifically Rule 29, to reduce, in certain circumstances, the number of lay members that sit on the panel of the court martial.

The court martial rules—in fact, the rules of all service courts—are kept under review by the Service Courts Rules Review Committee. This is a non-statutory body under the chairmanship of the Judge Advocate-General. Currently, Rule 29 of the 2009 rules provides that where court martial proceedings relate to a more serious offence, there shall be at least five lay members. The Service Courts Rules Review Committee considers that in cases where a defendant or co-defendants all enter a guilty plea before the trial begins, it is not necessary to have five lay members. It has therefore recommended an amendment to Rule 29 that reduces the minimum number of lay members required to sit in the court martial in these circumstances from five to three. The aim of this is to reduce delay and the cost of proceedings in the court martial, but it is not cutting corners. It is a sensible adaptation of the system to a particular set of circumstances.

The instrument does two further things. It prescribes a procedure for the court martial to certify to a civilian court, which has the power to commit for contempt, the failure of a person to comply with an order of a judge advocate to produce material to a service policeman or to give a service policeman access to it. It also removes a piece of legislation made obsolete by changes made in the Armed Forces Act 2011.

The Armed Forces Act 2006 gave Her Majesty’s Armed Forces a service justice system that provides consistent and fair access to justice for all, whether they are in Aldershot or Afghanistan. We have faith in this system and, more importantly, our Armed Forces have faith in it. However, we continually look for ways to enhance our processes and to keep the service justice system in line with its civilian counterpart. The orders that we are considering today contribute to that effort.

Finally, I will say a few words about ECHR issues. It is the custom for Ministers commending instruments subject to the affirmative procedure to say whether they are satisfied that the legislation is compatible with the rights provided by the European Convention on Human Rights. I am happy to inform the Committee that I believe that the instruments we are considering today are indeed compatible with the convention rights.

My Lords, I am of course grateful to my noble friend for what he said but will make just a few remarks about the Armed Forces (Retrial for Serious Offences) Order. We need to be careful that we do not surround the activities of our Armed Forces, in particular our Special Forces, with such a panoply of legislation that they will have difficulty discharging their duties in the manner that we would wish. Of course the Armed Forces cannot be exempt from the law, but if they are at risk—or fear that they are at risk—of too zealous an application of the relevant legislation, there may be difficulties of a wider kind.

I apologise for going back so far, but some of your Lordships may recall an incident in Gibraltar in 1988 when Special Forces were involved in an operation against IRA suspects. At the time, there was much initial discussion, although it did not go on for ever, as to whether they had complied with the law or not. It was a very finely balanced judgment and a question of whether they had complied with the rules of engagement, as they are called, laid down by Ministers in respect of the use of firearms in circumstances such as then prevailed. I was much involved in the discussion; indeed, there was a very important debate in your Lordships’ House at that time, to which I replied. It was established that they had indeed complied with the required legal provisions and therefore that no question of any offence arose. However, there was a coroner’s examination of the matter in Gibraltar. The outcome of that was not initially certain but eventually it was clear.

It is important that in general terms we do not surround our Armed Forces, and particularly our Special Forces, with such a panoply of rules and regulations that when the time comes for them to do maybe some pretty dreadful—but nonetheless necessary —things, they are inhibited by a possible fear of vexatious prosecution or perhaps a second prosecution, as provided for by this order. I need to be careful, as there is a particular case before the courts at present which must take its course. However, I hope my noble friend can assure me that nothing in this order will create a situation where the activities of our Armed Forces, including our Special Forces, are placed at risk or in greater difficulty.

My Lords, we have two orders which, on the face of it, go in slightly different directions. The second order, on the reduction in the number of lay members who sit in a court martial in sentencing proceedings for serious cases where a guilty plea has been entered, could be argued to be weakening the panel, at least as far as lay members are concerned.

Sitting suspended for a Division in the House.

Perhaps I may resume my contribution, which I had hardly started. I should say again that the second instrument we are discussing, on the reduction in the number of lay members who sit in a court martial in sentencing proceedings where a guilty plea has been entered in serious cases, could be argued to be weakening the panel, at least as far as lay members are concerned. The first instrument we are considering seems to go in the other direction, since among other things it now provides for a panel to be able to hear a case again if new and compelling evidence comes to light following a person or persons being acquitted of certain serious offences.

I understand what has driven the order; namely, bringing service proceedings into line with the civilian justice system. I had assumed that the terms of the order would apply only if the person or persons concerned in respect of whom new and compelling evidence had come to light were still members of the Armed Forces, but I think that the Minister referred to a six-month period that could possibly be waived. I am not sure whether that means that for a period of six months after someone has left the Armed Forces, in the circumstances set out in this order, they could still be recalled and retried through the court martial system. I would be grateful if he could clarify the situation when he responds. What would happen if there were two or more defendants, one or more of whom was still in the Armed Forces and one or more of whom was not? How would the reopened case be dealt with? Would it be dealt with within the court martial system?

As I say, I understand what is driving the order, but what is driving the second instrument is a little less clear. Paragraph 7.2 of the Explanatory Memorandum states that the change being proposed,

“is aimed at reducing both delay and the cost of proceedings”.

Reducing delay can certainly be in the interests of justice, but reducing the cost of proceedings sounds as though the instrument is, at least in part, financially rather than justice driven, or at least financially at least as much as justice driven. No figure is given for the reduction in the cost of proceedings, and, as far as I can see, the Explanatory Memorandum is also silent on what the reduction in delays would be, and on how such a reduction would be achieved as a result of the proposals set out in the rules.

Currently, at least five lay members are required to sit in court martial proceedings that relate to a more serious offence, as listed in Schedule 2 to the Armed Forces Act 2006. Under the new rules, the minimum five lay members would be reduced to a minimum of three and a maximum of five in cases relating to a more serious offence where the defendant or defendants entered a guilty plea before the trial began, and where sentence had to be passed. As the Minister said, this arises from a review and recommendation of the Services Courts Rules Review Committee. Is there to be any reduction in the number of non-lay members sitting in court martial proceedings? Are lay members represented on the Services Courts Rules Review Committee that carried out the review and made the recommendation in front of us today?

It would be helpful to know what the savings would be, since it is not immediately obvious that savings of any significance are likely to arise, unless reducing the number of lay members from five to three will be used as a reason for reducing the total number of lay members eligible to sit. To enable me—if nobody else—to get some feel for the impact that the proposed changes might have, perhaps the Minister will answer the following questions, if not today then at a later date. How many court martial proceedings with lay members were held in 2012? What was the total number of cases they heard? What was the total number of days in aggregate for which the courts martial sat? Is the number of sitting days going up, going down or remaining static each year? What is the total number of lay members eligible in aggregate to sit in court martial proceedings? What is the average number of sitting days for a lay member each year?

Furthermore, in how many cases in 2012, if this statutory instrument had been in effect, would the number of lay members sitting on a panel have been reduced from five to three, and what percentage of cases where the sole defendant or co-defendants pleaded guilty before the commencement of the trial would that have represented? Does the change provided for in the statutory instrument have the support of the lay members currently eligible to sit?

Paragraph 8.1 of the Explanatory Memorandum states that the rules have been the subject of “rigorous consultation” with the various bodies and organisations to which it refers. I am not sure of the difference between “consultation” and “rigorous consultation”, and I suspect that the Minister is not, either. Therefore, I am not inviting him to answer the question. However, does one of those bodies and organisations listed in the Explanatory Memorandum as having been consulted represent or speak for the lay members whose numbers are going to be reduced under the terms of this statutory instrument?

I conclude by saying that while we have no intention of opposing the order and rules, I would be grateful if the Minister would respond, at some stage if not today, to the points I have made. Unless there is a corresponding reduction in non-lay members sitting in court martial proceedings, the statutory instrument alters the balance between lay members and non-lay members in sentencing for serious offences where a guilty plea has been entered. I am not clear of the justification for this, in the interests of justice. The decision on whether one is found guilty of an offence is a profoundly significant one for a defendant, and so, too, is the decision on sentence where lay membership involvement has been reduced where there has been a guilty plea, since that sentence—we are talking about serious offences—can take away an individual’s liberty for a considerable period of time.

My Lords, I am grateful for the support that both noble Lords gave to the two instruments that we have considered today. Taking the question from my noble friend Lord Trefgarne first, I agree with him that we should not surround our Armed Forces, particularly our Special Forces, with too much of a panoply of legislation. However, we feel that we have got this right. My noble friend mentioned the Special Forces, and in particular the Gibraltar case. He has raised a really important point, not just for Special Forces but for all members of the Armed Forces, and I am very grateful to him for that. My answer is that our Special Forces personnel are in the same position as regards the law as any other member of the services. I am sure that neither they nor the Committee would wish it to be any other way. However, I emphasise that there are a strong set of safeguards before any retrial can be set in motion. I stress that the particular demands of service life and the requirements of operations are always in the minds of those investigating and prosecuting alleged offences.

I turn to the questions asked by the noble Lord, Lord Rosser, although I will not necessarily deal with them in the order that he asked them. First, he asked whether there are lay members on the Service Courts Rules Review Committee and whether the order has their support. The committee is chaired by the Judge Advocate General—the senior service judge—and includes the Director of Service Prosecutions and legal and policy representatives from the Ministry of Defence. The Association of Military Court Advocates is also represented. In its work, the committee consults the services, the Service Prosecuting Authority, the Association of Military Court Advocates and the Military Court Service. It does not make the rules itself but makes recommendations to the Secretary of State, who does make the rules, and any necessary changes, through the procedure being used today. As I explained, this order is the result of a recommendation from the committee.

The noble Lord asked how many court martial sittings there were last year with lay service members on the panel. Last year, I understand that 516 service personnel were court-martialled with lay members. How many cases were heard in a court martial is, in essence, the same question, and the answer is also 516. The court martial sat for 689 days in 2012. The noble Lord asked if the number of sitting days was going up, going down or staying the same. I am advised that it appears to be staying the same.

The noble Lord asked about the total number of lay members who are eligible to sit. In principle, all officers and warrant officers of the three services who are eligible and qualified in accordance with the Armed Forces Act 2006 may sit in the court martial. In some cases, certain civilians may also be eligible. Who is eligible in any given case depends on a wide range of factors specific to each case. I am aware that that may not fully answer the noble Lord’s question, and I will pad that out in a detailed answering letter.

The noble Lord asked whether it weakens the panel for a court martial if it is reduced from five lay members to three. We feel that it does not. In fact, most courts martial have a three-man lay panel for sentencing and for trial purposes. This change simply recognises that, where an accused is charged with a more serious offence and admits his guilt, there is no need for a five-man panel.

The noble Lord asked about the average number of sitting days per lay member per year. Again, we will have to do a bit of digging around to find out the answer to that. I shall write to the noble Lord.

Finally, the noble Lord asked what the difference is between “consultation” and “rigorous consultation”. “Rigorous consultation” is a shorthand way of referring to the fact that any proposals that we make for changes to the service justice system are based on a collaborative and open process between the Ministry of Defence and those who administer, and are subject to, the service justice system.

I shall study the official record of the points that have been raised and will write if I have anything to add to our exchanges.

Motion agreed.