Armed Forces Act 2006
To ask Her Majesty’s Government whether they have any plans to set up a widely drawn working party, using the expertise of Treasury counsel, into the working of Section 42 of the Armed Forces Act 2006.
My Lords, the Minister, the noble Baroness, Lady Goldie, gave your Lordships a most helpful reply to my Question on 23 October on the review of the Armed Forces Act for the next Bill, in 2020, in so far as it deals with serious offences committed by members of the Armed Forces. That is my main concern, not the civilianisation of disciplinary procedures in general. In any event, military prosecutors will ensure the protection of the military interest.
As a young subaltern newly qualified as a barrister—I learned I had passed my exams in the cookhouse of the Royal Welch Fusiliers in Wrexham—and totally without experience, I was in some demand in courts martial when I served in Germany. After that, despite 50 years at the criminal Bar, I took no interest, or, more importantly, my clerk took no interest, in court martial work. As Attorney General, I believe I signed a protocol with defence and many other agencies to confirm the supervisory role of the law officers. I was never, in fact, troubled. A further protocol was signed by the noble Lord, Lord Robathan, as he is now, and others in 2011 confirming the overriding principle of “fair and efficient justice” for persons subject to service law.
I surmise that for offences other than serious ones the present system may work reasonably well in the delivery of those aims. It is the recent case of Sergeant Blackman, heard in the Court Martial Appeal Court with considerable publicity and public interest, that has caused me to take your Lordships’ time tonight. Section 42 of the Armed Forces Act 2006 changed the jurisdiction of courts martial to deal with cases of murder, manslaughter and rape, although the court martial system could already deal with serious cases such as murder if they were committed abroad. It could convict by a majority but sentence to death had to be unanimous.
I believe that the time has come, in the Minister’s words,
“for an independent and more in-depth look at the service justice system so that we can be assured that it is as effective as it can be for the 21st century”.—[Official Report, 23/10/17; col. 766.]
I have looked at the records for 2005 to 2010 and there appear to have been seven cases of homicide/manslaughter. There were also many more cases of serious assault. It is the handling of the more serious cases that needs scrutiny. The United Kingdom’s most senior military judge is the Judge Advocate-General, a senior civilian lawyer. In 2013 the Judge Advocate-General, His Honour Judge Blackett, said that the rules for military courts looked unfair and could be challenged in future cases.
A court martial comprises a judge advocate, and between three and seven members of the jury, known as the board. They are officers or warrant officers but can include civilians. The membership is hierarchical but I understand that when they vote, the most junior member votes first. Whether seniority in membership plays a part in the discussions, I do not know; I can only guess. The verdict is delivered at the end of the trial. The defendant does not know whether or not it is unanimous. It can be by the thinnest of majorities—three to two is sufficient.
When majority verdicts were introduced in English and Welsh courts, as a mainly defence lawyer, I was troubled initially, but I can say with long experience that a system of a verdict of at least 10 to two when the jury remains 12 in number works. It succeeds in weeding out unreasonable failure to reach a verdict because of the dissent of one or two. However, the directions for reaching a majority verdict as opposed to a unanimous verdict, including an exhortation to strive for unanimity, are set out in statutory detail and are absolutely transparent to the defendant and the public. The voting figures are made known.
I share Judge Blackett’s concern that a defendant can be convicted if only three members of the court martial had voted for a guilty verdict while the other two had supported an acquittal. Three to two is not enough, in my view. Not to reveal the figures is also a matter of concern in this day and age. The House will be interested that the system in New Zealand has changed recently. It has used the England and Wales system as a model, with one difference: it decided that all convictions must be unanimous. I am conscious of the fact that the Court Martial Appeal Court, headed by the then Lord Chief Justice, the noble and learned Lord, Lord Judge, in the case of R v Twaite, held that a majority verdict did not infringe the right to a fair trial or produce an unsafe conviction. It found no reason to conclude that the finding of guilt on the basis of a simple majority was inherently unsafe. I invite the review to consider this judgment and the views of the Judge Advocate-General, and draw from the experience of New Zealand.
Although I respect the court’s judgment, I believe that an in-depth review should consider, first, whether a majority verdict with such a slim majority is appropriate, in the Minister’s words, “for the 21st century”; secondly, whether the fact that the verdict is not unanimous should be made public; thirdly, whether the hierarchical system of board membership is appropriate; and, fourthly, whether the directions for a verdict should be set out, as they are in ordinary criminal law, and also consider the relevance and the working of Rule 26 of the Armed Forces (Court Martial) Rules 2009.
It was put to me recently by a most eminent lawyer that in the most serious cases, we might consider moving to a system more akin to an ordinary trial by jury. This would do away with the hierarchical system of board membership. I had also raised this possibility in my Question on 23 October. I would like to hear what might be the objections to, and particularly the difficulties in, such a system and whether it might apply only to the more serious cases.
I would like the review to consider one other issue: whether a judge advocate, given the figures for the number of homicide cases in recent years, is the best presiding judge for serious cases such as murder or rape. Only the most senior and experienced of circuit judges hear rape cases and they are licensed to do so—likewise with murder cases, I believe. While a High Court judge has in the past sat as a judge advocate in serious or unprecedented cases, I believe consideration of who should preside should be more of a routine issue.
I therefore suggest that the president of the Queen’s Bench Division, who I understand allocates the High Court Bench for the most serious cases in our courts, should be asked to nominate a High Court judge to try such cases where he sees the need. It is the fact of the rarity of such cases which calls into question whether a judge-advocate is the best form of tribunal. I am sure that the in-house lawyers of the Ministry of Defence, which I served many years ago, would benefit from outside advice. I have in mind Treasury counsel, or particularly former Treasury counsel, who have actual experience of handling court-martial cases and serious cases such as murder. Hence my welcome for a widely drawn inquiry to review the working of Section 42 and use the opportunity to consider other aspects of the court-martial system.
I thank my noble and learned friend Lord Morris of Aberavon for having secured this debate on what would, at first sight, appear a rather recondite issue but which has, from time to time, had very serious consequences for individuals. It has also caused great publicity, which is sometimes to the disadvantage of the Armed Forces.
Much has been done in recent years by the present Judge Advocate-General, Judge Blackett, to improve the system. I pay tribute to what he has done. He has certainly much more closely aligned the procedure of the courts martial in the trial of criminal cases to that of the Crown Court. However, as my noble and learned friend said, there is a real distinction in relation to jury trial, which in the modern age is hard to justify. That is to say: the composition breaches the fundamental principle of random selection and there is the fact that a majority can be a bare majority, which is not even announced. These anomalies are very difficult to justify as a matter of justice in the 21st century.
These issues are of particular importance in cases which involve action by a member of the Armed Forces against someone who is not a member of the Armed Forces, as has occurred in a number of cases. The ordinary citizen would expect a crime over which the Crown Court has jurisdiction, which includes murder overseas, to be tried by an ordinary court, by ordinary principles of law and by that bulwark of our constitution, trial by jury. It therefore seems that what the noble and learned Lord suggests is, in the present circumstances, essential: a review to see whether the provision is fit for the 21st century, particularly in circumstances where there has been a reduction in the numbers in our Armed Forces, a substantial fall in the number of cases and much-needed improvement made in the ordinary criminal justice system.
I would like to draw attention n to a number of specific questions, and I shall take five by way of example because they all relate to this question. First, there is concurrent jurisdiction. It is clear that a number of cases are tried by court martial over which the Crown Court would have jurisdiction. There is a protocol between the Director of Service Prosecutions, the Director of Public Prosecutions and the Ministry of Defence that covers the allocation of such cases. I think the time has come for a proper review of that protocol to determine whether it is right that serious criminal cases do not automatically go to the Crown Court.
Secondly, there is a matter often overlooked, which is the exercise of prosecutorial discretion. The noble and learned Lord will have had much experience of supervising the exercise of that discretion in the ordinary courts. It is a matter which sometimes causes the Director of Public Prosecutions a great deal of anguish, but there are cases which result from historic conduct where the courts martial have jurisdiction over civilians because they were family members, not members of the Armed Forces. That is the sort of case, and there are other illustrations that could be given, where it is appropriate that as part of the operation of the courts martial system, the exercise of prosecutorial discretion—such a difficult issue—should be examined.
Thirdly, there are less serious criminal cases where it might be said that the court martial is the appropriate forum, particularly for low-end assaults or minor thefts, where sentencing considerations are, it might be said, more appropriate for a court martial than an ordinary court. Fourthly, there is the question the noble and learned Lord has raised in relation to the allocation of judges. Certainly as the number of cases in the courts marital decreases, experience becomes more important. Finally, there is another aspect of the system. Over the past 15 or so years, in the Crown Court sentencing has become much more professional, and it is carried out by the judge alone. Is it right in the 21st century that sentencing should also be done by the full board?
Those are just examples of questions that arise from the need for the review for which the noble and learned Lord has called. As I have presided over a significant number of court martial appeals, it would not be appropriate for me to say anything more about the detail of my experience, but it seems to me that the time has come for a review. It is possible to do much without primary legislation. The operation of the protocol is one of the key issues where a lot could be done without legislation, and there is the much-needed but neglected revision to the courts martial procedure rules in which the Ministry of Defence has a key role. I therefore warmly endorse what the noble and learned Lord has sought in this debate. Such a review would be welcome to everyone concerned with the administration of justice and, in particular, for the reputation of Her Majesty’s Armed Forces. They are not well served by the present system.
My Lords, in March 1669 the Lord High Admiral, the Duke of York, later James II, issued a warrant to constitute a court martial. It was to be comprised of a rear admiral and six captains to enquire into the loss by fire of a ship of the line, the “Defiance”. In order to constitute the court, Samuel Pepys, then a civil servant with the title of the Clerk of the Acts, found himself suddenly and unexpectedly elevated to military rank. He wrote in his diary:
“But that which put me in good humour, both at noon and night, is the fancy that I am this day made a Captain of one of the King’s ships, Mr. Wren having this day sent me the Duke of York’s commission to be Captain of ‘The Jerzy,’ in order to my being of a Court-martiall for examining the loss of ‘The Defyance,’ … which do give me occasion of much mirth, and may be of some use to me, at least I shall get a little money by it for the time I have it; it being designed that I must really be a Captain to be able to sit in this Court”.
At the hearing, Mr Pepys managed the business, and as he put it,
“did lay the law open to them, and rattle the Master-Attendants out of their wits almost; and made the trial last till seven at night, not eating a bit all the day”.
However, he did forbear from giving judgment, lest, as he put it,
“evil use might be hereafter made of the precedent by putting the Duke of Buckingham, or any of these rude fellows that now are uppermost, to make packed Courts, by Captains made on purpose to serve their turns”.
Pepys instead left the proceedings to eat a ship-board meal of,
“salt beef … brown bread and brandy … so good as I never would desire to eat better meat while I live, only I would have cleaner dishes”.
I am grateful to my friend and colleague, Professor Eugene Fidell, of Yale University, author of the excellent book Military Justice: A Very Short Introduction, who drew these passages to my attention.
In the 1840s, a parliamentary Motion was brought criticising the Earl of Cardigan, of Light Brigade fame, who was colonel of the 11th Hussars. There were 350 men in the regiment, and in the space of two years he had conducted 107 courts martial, with 90 of his soldiers imprisoned in Lewes jail. But that was not his offence; his mortal sin was to have a soldier flogged on a Sunday at a church parade, which was what the Motion was about. Flogging was abolished by Sir George Osborne Morgan, the Liberal Member of Parliament for Wrexham—which has already had a mention and is of course my home town—who was the Judge Advocate in 1881.
I remember during my bus-conducting days in Wrexham that the bus driver I was working with was proud of the fact that he had survived field punishment number one while serving in the First World War—that is to say he was lashed, spreadeagled to the wheel of a gun carriage. Sixty thousand such sentences were imposed during that time, and at the same time 3,000 death sentences were pronounced by courts martial, of which about 10% were carried out. Their posthumous pardon is still a controversial issue.
I mention these historical occurrences because they have a left a degree of mistrust of courts martial in the public consciousness, which has not disappeared. Back in 1995, I defended a soldier before a court martial in Germany on a charge of murder. He was acquitted. Mr George Galloway MP, speaking in the House of Commons, complained of the bungling and incompetence of the investigation and prosecution, and continued:
“As a result of that bungling and incompetence”,
X—he named the defendant—
“who killed my constituent, has literally got away with murder and is currently at large in a military establishment in Telford, Shropshire. Does the Leader of the House understand that British military justice and law is increasingly seen as an ass”?—[Official Report, Commons, 2/3/95; col. 1209.]
I have never heard comments like that in Parliament about an acquittal by a jury.
The parents of the deceased girl in the case of X actually picketed the next court martial I appeared in in Germany, holding placards protesting against the system. That was the case of Martin, which ended up in the Judicial Committee of the House of Lords and, finally, in the European Court of Human Rights. The 17 year-old son of a soldier—not a soldier himself—serving in Germany was charged with the murder of a British civilian who had the status of an officer in the camp. He was held on remand at Colchester for eight months and then flown back to Germany for a court martial with all the trimmings. By that time his father had retired from the Army and was no longer serving. He was convicted. My appeal on the basis of abuse of process was lost in the House of Lords. The European Court of Human Rights, on the other hand, found that there had been a violation of the European convention on other grounds, and cautioned that only in very exceptional circumstances may civilians be court-martialled:
“The power of military criminal justice should not extend to civilians unless there are compelling reasons justifying such a situation, and if so only on a clear and foreseeable legal basis”.
The Government’s position on that case was criticised and questioned by the Joint Committee on Human Rights in its 12th report in May 2011.
I shall cite two more recent events. One is the Baha Mousa case, in which I appeared for one of the defendant officers, and it was in fact a High Court judge in that particular case. Nevertheless, the acquittals were not acceptable to the Government, who instituted an inquiry that cost millions of pounds. Within the last year there has been the case to which the noble and learned Lord, Lord Morris, referred, the conviction of Sergeant Blackman, which led to a lengthy newspaper campaign, protests and public demonstrations in Old Palace Yard and a rehearing of his appeal on grounds that had never been advanced at his trial. The substitution of his conviction for murder with one of manslaughter led to his immediate release.
What I am endeavouring to show is that there is no public confidence in the system. I know the system and I have every confidence in the judge advocates who sit on courts martial, particularly Judge Advocate Blackett, who has been referred to. They are highly skilled and experienced, and many of them hold certificates to sit on murder trials. However, in the last three Armed Forces Bills over 15 years, I have moved amendments unsuccessfully to improve the workings of the system. Every one of the five points that the noble and learned Lord, Lord Thomas of Cwmgiedd, has put forward is one that I have advanced. I had one success: in 2004 I managed to have the hallowed practice of a petty officer marching the defendant into a naval court martial hearing at the point of a cutlass finally abolished. The presumption of innocence hardly applies when you have the point of a sword in your back.
Specifically, I have called for the repeal of Section 42 and for the extension of universal jurisdiction to sexual crimes so that rape, murder and serious crime could be tried in the ordinary British courts if they are committed abroad. Now, though, with the return of the Army from Germany and the ease of travel that has caused all serious trials from Iraq and Afghanistan to be heard at Colchester or Bulford, the argument of distance is no longer relevant. I have argued that the protocol between the DSP and the DPP is not a satisfactory safeguard where serious charges are laid.
In 2013, the special rapporteur on the independence of judges and lawyers submitted a report to the General Assembly of the United Nations that stated:
“As a specialized jurisdiction aimed at serving the particular disciplinary needs of the military, the ratione materiae jurisdiction of military tribunals should be limited to … offences of a strictly military nature, in other words to offences that by their own nature relate exclusively to legally protected interests of military order, such as desertion, insubordination or abandonment of post or command”.
Paragraph 99 of that report reads:
“States should not resort to the concept of service-related acts to displace the jurisdiction belonging to the ordinary courts in favour of military tribunals. Ordinary criminal offences committed by military personnel should be tried in ordinary courts”.
That view was re-emphasised in a report to the United Nations on 9 June 2017, and is entirely in accordance with Decaux principle No. 8, which provides that the subject matter of military courts should be limited to offences of a strictly military nature committed by military personnel. The Decaux principles are the United Nations draft principles governing the administration of justice through military tribunals, adopted in 2006.
I therefore fully support the thinking behind the Motion, and thank the noble and learned Lord, Lord Morris, for moving it, and for emphasising a battle in which I have been engaged for a long time. I would advise those considering these matters to follow closely the case of Stillman v the Queen, which is currently before the Supreme Court of Canada. It raises the very issue under discussion. Corporal Stillman, in a private quarrel, shot an individual with his own revolver in the residential area of a military camp but was tried by court martial. The repeal of Section 42 would be wholly in accord with contemporary human rights norms and would remove the strong public prejudice against trial by court martial, starting from before Mr Pepys down to the present day.
“And so to bed”.
My Lords, I start by welcoming the noble Baroness, Lady Goldie, back to her place. I understand that she has been away for a couple of weeks and has been unwell. I hope that she is fully recovered, because I could not do the knockabout otherwise. I also thank my noble and learned friend Lord Morris of Aberavon for bringing this issue before us.
I venture into this territory with great trepidation, having listened to three lawyers discuss the matter in some detail. From the formal point of view of the Opposition, I can do no more than say that the arguments are persuasive but, should legislation come before us, we would of course examine it, scrutinise it and take advice. We are talking about a military environment and possible military dimensions, and about service law, which must be changed only with great care.
Nevertheless, I totally agree with the call from my noble and learned friend for what he called a widely drawn inquiry. Here, I must disagree with the noble Baroness, Lady Goldie, given our exchange the last time that we discussed this subject. She responded to my indication of general support, where I called for full consultation. Her response was:
“We are not conducting a public consultation but trying to ensure that the system is tweaked, if it needs tweaking, to ensure that we are in the best possible state to be in for the 21st century. But that does not preclude any interested parties from making representations to the Government on these issues, as and when they think it appropriate. The noble Lord raises a point that he might wish to consider presenting to the Government”.—[Official Report, 23/10/17; col. 768.]
I cannot believe that she was serious. The idea of an individual writing to the mighty Government and getting anywhere where anybody would consider it is, at least, amusing.
This is surely the point. Enough doubt has been expressed about how military law operates in the circumstances. We all know that we will have an Armed Forces Act in 2020. Surely the right thing to do is to have a proper consultation on this area—indeed, perhaps not just this area but others where there has been doubt and concern about cases over the previous five years. A proper consultation would mean that many more people would know that an inquiry—I do not want to use formal words—would take place or that the Government were in a formal way considering changes. It would also mean that the Government would have to make a proper public response. It would encourage involvement by interested lawyers and former serving members of the Armed Forces. It might also be an occasion when forces charities or associations would want to make representations.
One has to remember that the problem of getting things right for the other ranks in our Armed Forces is quite difficult. They do not have a trade union, and I am in no way advocating that they should, but there are no natural systems for getting how the law feels to them and how they see the process. We are making only very slow progress, although we have the services ombudsman, which is a good step forward, and so on. A proper consultation in which everybody was invited to put forward their views and through which there was a proper government response is the minimum that should take place on this issue. It would create an option whereby wider issues of public concern could be introduced. That way, we can have another Armed Forces Act.
We have made a lot of progress over recent years—I think that it was the 2006 Act that brought all the services together and we did some tweaking at the next step, five years later. Here is an opportunity to have another go at the law to make it better and fit for purpose in terms of natural justice as well as in equivalence to the civilian process, and to go through those careful considerations and make it appropriate to work in a military environment.
My Lords, as always, we have had a good debate covering a range of issues around the service justice system, and I thank noble Lords for their interest and contributions. I thank the noble Lord, Lord Tunnicliffe, for his kind remarks. I shall do my best to respond to as many of the points raised as I can. By way of preface, I should explain that I have a blocked ear and am totally deaf on my left-hand side, so if I fail to respond to a point raised it is not selective disregard of that contribution—it is because I have failed to hear it properly. But I shall, of course, write to any noble Lord where I have omitted to deal with point adequately.
We have heard a range of views and concerns about aspects of the service justice system. I should make it clear that, as a broad principle, it is our aim to mirror provisions within the civilian justice system and diverge from that only when it is necessary to maintain operational effectiveness. I noted the views of the noble and learned Lord, Lord Morris, but I remind noble Lords that the Ministry of Defence has successfully defended challenges to the system of Armed Forces’ courts—in particular, the court martial—in cases in the European Court of Human Rights and civilian courts. The current system has been held to be compliant with the European Convention on Human Rights, and we maintain that it is safe, independent and impartial. However, we recognise that, as we move further forward into the 21st century, we need to make sure that we have the right service justice system in place to meet the needs of our Armed Forces. I thank the noble and learned Lord, Lord Thomas of Cwmgiedd, for acknowledging that progress has been made—although I also acknowledge that, from his perspective, it is not enough.
As I said in my reply to the Question from the noble and learned Lord, Lord Morris, on 23 October, the Government have decided to have a broad review of the service justice system in advance of the next Armed Forces Bill in 2020, and that review will include the handling of serious criminal offences with which the civilian criminal system deals more frequently. The review is being led by a retired civilian judge, His Honour Shaun Lyons. Judge Lyons also served in the Royal Navy and left the service in 1992 as Chief Naval Judge Advocate to take up a position in the civilian judiciary, where he served until last year. We believe that he brings the right level of experience and objectivity to this piece of work and we look forward to the report of his review in around a year’s time.
This is an independently led review and Judge Lyons will be able to consult with whomever he believes will assist him in his work. Let me say to the noble Lord, Lord Tunnicliffe, that I am sure this will include a wide range of stakeholders, including those who sit outside of the MoD. Indeed, those who wish to make representations are free to do so. I know the noble Lord, Lord Tunnicliffe, was rather dismissive of my previous observation that people should feel free to make their contributions but I think it would add a very positive dynamic to the process and would help the review. I am sure that the views expressed this afternoon will be listened to with interest.
Turning to the substance of the noble Lord’s Question, I should explain that Section 42 of the Armed Forces Act 2006 provides that:
“A person subject to service law, or a civilian subject to service discipline, commits an offence under this section if he”—
“does any act that … is punishable by the law of England and Wales; or … if done in England or Wales, would be so punishable”.
The Armed Forces Act provides for the service justice system to investigate and deal with these offences, whether they are committed in the United Kingdom or overseas.
With regard to the extraterritorial application of Section 42 so that it applies overseas, if that provision did not exist, we could find ourselves unable to deal with service personnel who commit civilian criminal offences overseas, and it therefore plays a key role in supporting the maintenance of discipline in deployed forces. Another factor to consider is that, without this provision, the relevant conduct overseas may have to be dealt with by the host nation’s criminal justice system—a system which, in many cases, is likely to be very different to our own.
One effect of Section 42 is that there will be some conduct which both the service courts and the civilian criminal courts in England and Wales will have jurisdiction to try. The noble Lord, Lord Thomas of Gresford, referred to this jurisdiction issue. For example, an alleged assault in England by a solider could be tried in a service court or in the civilian criminal court. Less commonly, both the service courts and the civilian criminal courts may have jurisdiction to deal with service personnel who are accused of certain crimes overseas, because there are some offences under the criminal law which cover conduct overseas. One example is the offence of murder. For cases which both the civilian criminal courts and service courts have jurisdiction to try, it is recognised that it is necessary to consider in each case whether the case is more appropriately dealt with in the civilian criminal courts or in a service court.
To this end, there is a protocol between service and civilian prosecutors that recognises that some cases are more appropriately dealt with in the service system and some are more appropriately dealt with in the civilian system. The principles of this protocol have the approval of the Attorney-General for England and Wales and the Ministry of Justice. The protocol recognises that any offence can be dealt with by the service authorities, but it does not follow that the service justice system should always deal with cases involving service personnel. As I have already said, the protocol recognises that some cases are more appropriately dealt with in the service system and some in the civilian system. To illustrate this, offences alleged only against persons subject to service law and which affect the person or property of civilians are normally dealt with by a civilian court and not in service proceedings. Offences alleged only against persons subject to service law which do not affect the person or property of civilians are normally dealt with in service proceedings and not a civilian court. If the appropriate jurisdiction is not clear, then the protocol makes it clear that the Director of Public Prosecutions and the Director of Service Prosecutions should consult, but the final decision rests with the Director of Public Prosecutions.
I understand, however, that there are those who are concerned that, notwithstanding the provisions of the protocol, the service justice system should not deal with certain offences. The noble Lord, Lord Thomas of Gresford, raised this issue. As I understand it, those concerns seem to focus on two aspects: first, that the service justice system is not capable of dealing with certain offences; and, secondly, that the court martial operates a system of majority verdicts which is not the system used in the civilian Crown Court.
Taking the first of these points, we take the view that the service justice system is capable of dealing with the most serious of offences. The service police are trained and able to carry out investigations into the most serious offences, with members of the Special Investigation Branch having to pass the serious crime investigation course before being selected for that unit. In addition, selected members of the service police attend a range of specialist and advanced detective training at the Defence College of Policing and Guarding, or externally with the College of Policing or training providers accredited by the college.
At the Service Prosecuting Authority, prosecutors are trained to effectively prosecute serious cases. For example, prosecution of serious sexual offences requires attendance on the CPS rape and serious sexual offences specialist training course, and the SPA ensures that decisions on charging in such cases are taken only by prosecutors who have completed that training.
With regard to the second concern on majority verdicts—the noble and learned Lord, Lord Morris, advanced a number of views on this—the Government have been successful in establishing in both the European Court of Human Rights and in the civilian courts that the court martial system is in principle safe, independent and impartial. The current system for majority verdicts has been considered twice by the Court Martial Appeal Court in the last five years and was on both occasions held to be fair and safe. The Court Martial Appeal Court, which is made up of the same judges as sit in the civilian Court of Appeal, has held that there is no ground for deciding that a verdict by a simple majority of the lay members of a court martial is inherently unfair or unsafe. However, we recognise that there are differing views about the system of majority verdicts, some of which have been expressed in this House as recently as this afternoon, and indeed were articulated eloquently by the noble and learned Lord, Lord Morris. I suggest that these views and those of other stakeholders will be captured and considered as part of the service justice system review.
The noble and learned Lords, Lord Morris and Lord Thomas of Cwmgiedd, and the noble Lord, Lord Thomas of Gresford, raised a number of key issues about the broader operation of the court martial system. As I have previously said, the Government have decided to have a broad review of the service justice system and this will include the handling of serious offences in the court martial. The review will no doubt note with interest all the points that have been raised today.
This has been a useful debate. It may have been a short one with a relatively small number of contributors but the quality of contribution speaks for itself. I thank your Lordships for their valuable and very interesting contributions to the debate. I hope that I have responded to all the main points raised, but I undertake to look at Hansard and, if mental frailty or aural deficiency have been responsible for overlooking any point, I shall certainly try to address that by undertaking to write to whichever noble Lord I have not managed to respond to fully.
Question for Short Debate
House adjourned at 6.03 pm.