| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
My noble friend’s amendment raises the interesting and important question of whether the Attorney-General should continue to have sole and unqualified discretion to order that there should be processed in the civilian system and not the military system any charge against a service person of murder, manslaughter or breach of the Geneva Convention. That is a very important issue. I am afraid, and my noble friend knows this, that I cannot go along with him on the proposition that the Attorney-General must first obtain the leave of the High Court, on the terms proposed in the new clause or indeed on any terms. My reason is this. The Attorney-General is the guardian of the public interest under our constitutional arrangements, and in my view much depends on no inroads being made into that doctrine and practice. It may not look as though it can work well, but it does work, has worked and will continue to work well; and I, for my part, do not think that it ought to be disturbed. I can see faces all around me who I suspect are concealing thoughts that go along the lines of, “Well, he would say that, wouldn’t he? He has been one”. But I do believe that that proposition stands up to the test of practical efficiency and serviceability.
There is another difficulty in that the issue that would have to be put to the High Court might properly and probably not entertain a judge. He probably would say, “This is not justiciable in a court of law; it should be a matter for the discretion of the Attorney-General, who is, rightly, responsible to Parliament”.
But that is not the end of the matter, because my noble friend has done an important service—he has highlighted the unsatisfactory character of a power to direct a civilian trial without affording to the accused any opportunity to make representations on the matter. A serviceman or servicewoman is in a unique position—we are talking about offences that can be tried only by court martial and for which the accused may well have a legitimate expectation that he will be tried by court martial.
I paid attention in our earlier debates in particular to what was said more than once by the noble Lord, Lord Drayson, about the importance in the eyes of the Government of sustaining a separate and comprehensive system of military justice. All of us understand why that is important. Therefore, it may well be envisaged that an accused may have a “legitimate expectation”—in the language of the law—that he will be tried within that system. Certainly, he may have a proper desire to be tried by court martial and that should be respected, even if the Attorney-General ultimately decides within his constitutional discretion that that desire cannot be met.
The way to achieve that is, surely, to require the Attorney, if he is minded to go for a civilian process, to give notice to the servicemen and to tell him that he can make representations on the matter if he so
11 Oct 2006 : Column 316
Lord Thomas of Gresford: Perhaps I may raise with the noble and learned Lord the Attorney-General the much-related point regarding the additional jurisdiction of the court martial to hear and determine cases involving murder, manslaughter, rape and treason that are committed in this country. As the noble and learned Lord will know, and as we were told in our earlier debates, since the 16th and 17th centuries, those offences could be heard only in the civil courts. This Bill provides for a dramatic extension of jurisdiction to enable courts martial to deal with such cases, even if the offences are committed in this country.
Who will decide whether the trial is civil or for a court martial? If a serious offence happens overseas, there are arrangements between the local jurisdiction and British forces as to which should have precedence. In this country, where there is dual jurisdiction for matters other than the serious offences to which I referred, the Queen’s Regulations set out various ways in which the choice can be made. It is usually made by the chief officer of police for the district within which the offence was committed and that is a matter of liaison between him and the commanding officer.
What happens now? Will the Attorney-General himself determine whether there should be a trial by court martial for a murder committed in this country, or should it be decided by the Crown Court, or will someone else decide this issue? Will it be the Director of Service Prosecutions or the Director of Public Prosecutions? The mechanism by which that choice will be made is not spelt out in the Bill and that question is very much related to the matter raised by the noble Lord, Lord Campbell of Alloway. I hope that he forgives me for speaking to his amendment in this way.
Lord Kingsland: I have been named by my noble friend Lord Campbell of Alloway as one Member of your Lordships’ House who will not support the amendment. I freely admit that that is the case. It is not that I in any way decry the ingenuity that lies behind the drafting. It is a characteristically ingenious amendment and there are circumstances in which it would be welcome; but I am opposed to it for a number of reasons.
The first of those is that given by my noble and learned friend Lord Mayhew of Twysden. The constitutional position is that the Attorney-General is accountable to Parliament, not for the substance of his decisions, but for the way in which he makes his decisions, for his independence and for the probity that he brings to bear on his decisions. He is not accountable for the decision itself. That is a responsibility that our constitution gives to him alone. It is not right that even a towering figure in our nation such as the Lord Chief Justice or another senior judge should be in a position to second guess that decision.
11 Oct 2006 : Column 317
The noble and learned Lord, Lord Mayhew, raised a related issue: what about the legitimate expectation of the serviceman himself? If such a serviceman had sat in the Gallery this afternoon, he would have heard the Minister underpin the Government’s approach to the Bill as one that integrated service disciplinarylaw with criminal law. It provides, as the noble Lord, Lord Drayson, said on a number of occasions, a comprehensive legal system. It must follow, as my noble and learned friend said, that a serviceman would have an expectation that if it were alleged that he had committed an offence, he would be tried within the military system; and that if a different decision were made, he should be allowed to have a view about that and to be able to express it. There is something to be said about having that position reflected in the Bill; but, with great respect, it should not be reflected in the way that my noble friend Lord Campbell of Alloway sought. The serviceman should be able to make representations, perhaps to the Attorney-General himself.
The other reason why I am not inclined to support my noble friend’s amendment is that it is unnecessary. At Second Reading, the Minister made it crystal clear that, in future, all servicemen who are engaged in operations in circumstances where there is a question over the legality of their behaviour would be prosecuted by the new services prosecutor and that all such prosecutions would be heard by a court martial. The Minister made that statement unequivocally. It follows that the problem raised by the noble Lord, Lord Campbell of Alloway, would not arise.
I am confident that the position is now clear and that the logic of the Bill flows from that position. The Bill clearly provides a comprehensive system for criminal law in relation to servicemen. If that is so, we will have a watertight system whereby criminal proceedings would end up in a court martial. We do not need a mechanism to deal with the transfer of cases from the military system to the civilian system, because that is not the Government’s intention.
7.30 pm
The Attorney-General (Lord Goldsmith): I thought it right to speak to this amendment myself because it relates to my role, it arises out of the Trooper Williams case and I believe that, by doing so, I would respond to the wishes of the Committee. I made that decision before fortuitously meeting the noble Lord recently and telling him that. Therefore, I am grateful to my noble friend Lord Drayson, who has charge of the Bill in this House, for giving way to me on this amendment. I do not need to say anything about Amendment No. 208, which is entirely consequential. I may touch briefly on Clause 126, which is in this grouping, but I do not know whether the noble Earl, Lord Attlee, is intending to oppose the Question whether the clause shall stand part. He shakes his head, so perhaps I shall explain it briefly and say no more.
Like the noble and learned Lord, Lord Mayhew of Twysden, I acknowledge with admiration the clarity and energy with which the noble Lord, Lord Campbell of Alloway, has pursued his concern in previous debates and today. I suggest, and shall be suggesting to him,
11 Oct 2006 : Column 318
The noble Lord, Lord Campbell of Alloway, has rightly acknowledged that the particular circumstances that gave rise to the Trooper Williams case will not arise again because of the provision in the Bill, if passed, under which a commanding officer will not be able to stop the service prosecuting authority ever considering whether a case should be proceeded with in the military system. That is what happened. The only way that a case could then be considered by a prosecutor was in the civilian system, and that is what took place. The Bill will remove the power of the commanding officer to dismiss a charge in those circumstances.
As the noble Lord, Lord Campbell of Alloway, said, there are further changes which are highly relevant. When the Director of Service Prosecutions considers a case and decides not to proceed with it—this is under Clause 126—he will have the power to give a direction which would, in effect, bar any further service or civilian prosecution for the same offence.
In addition, where the service police investigate allegations of serious offences and decide that there is sufficient evidence to charge, they will have to refer the case to the Director of Service Prosecutions. As an amendment tabled by the Government makes clear, the service police must, as soon as reasonably practicable, notify the commanding officer of such a referral. It is the intention to provide in regulations made under the Bill rules that enable the commanding officer to put any relevant factors before the service police and the Director of Service Prosecutions before the service police refer the case to the director and before the director decides whether to charge.
I believe that those amendments as a package meet the concerns highlighted by the noble Lord, Lord Campbell, and by other noble and noble and gallant Lords. Therefore, I venture to suggest that his concerns have been listened to and have substantially been addressed.
I have to say to the noble Lord, Lord Kingsland, that I do not deal with this amendment on the basis that he has put forward—that is, that the possibility of a case being in the civilian system will not arise again. That simply is not right. As the noble Lord, Lord Thomas of Gresford, noted and as I have said before, it is a commonplace that in cases which arise out of conduct in this country, there are prosecutions in the civilian court. So far as concerns action overseas, active service and operational circumstances, I have said—it has been said by others—that I envisage that a civilian prosecution will take place only in exceptional circumstances. I have not said, and I do not believe
11 Oct 2006 : Column 319
I believe that the amendment is unnecessary because we have met the concerns. I want to come back to one point but not for the reasons given by the noble Lord, Lord Kingsland. It would not be right for me, standing on my feet as the authority ultimately responsible for making certain decisions, to stand by silently and accede by silence to what the noble Lord, Lord Kingsland, said.
Lord Kingsland: That was not my understanding of what the Minister indicated at Second Reading, and perhaps between now and Report we can look again at what was said on that occasion. If I have misunderstood it, then plainly what I said in my first intervention needs to be revised.
The noble and learned Lord the Attorney-General raises an important point. This afternoon we have heard consistently from the Government that the whole purpose of the Bill is to provide a completely comprehensive system for the Armed Forces. The noble and learned Lord is looking extremely impatient—
Lord Goldsmith: I am not looking the slightest bit impatient. I am anxious to hear what the noble Lord says and am waiting patiently to hear it all.
Lord Kingsland: I am most grateful. This afternoon, the Minister has been at pains to emphasise—particularly in the context of the attempt by the noble Lord, Lord Thomas of Gresford, to remove Clauses 42 to 49 from the Bill—that the intention is to provide a completely comprehensive, self-contained system.
The noble and learned Lord the Attorney-General was suggesting that there might be circumstances where this watertight approach is not as watertight as we all thought. The fundamental issue here is whether that means that the noble and learned Lord the Attorney-General believes that he has the constitutional power to remove a case from the military procedure at some stage after it has started and switch it to the civilian procedure. I entirely accept that extra-territorial offences such as murder and manslaughter could be started in the civilian courts. That is plain. But the situation which has concerned me, and which I thought the noble Lord, Lord Drayson, had covered at Second Reading, is one where proceedings are begun by the Director of Service Prosecutions and are then taken out of the services loop by, I suppose, the DPP under the superintendence of the Attorney-General and switched into the civilian loop. I do not believe that the noble and learned Lord the Attorney-General has the constitutional power to do that, and I want to be reassured that it is not his intention in future to so act.
Lord Campbell of Alloway: Perhaps I may intervene because I am involved in this. First, my noble friend Lord Kingsland got it totally wrong. He knows why I think he is wrong and I shall tell the Committee in a moment. The noble and learned Lord, Lord Goldsmith, has got it totally right. It was an outrage to be told
11 Oct 2006 : Column 320
I want to add one point. My noble friend Lord Kingsland asked two leading questions of the noble Lord, Lord Drayson. They were loaded. You could see that they were loaded with the art of a really fine practitioner—my noble friend is expert at it. The Minister fell into the trap and answered “yes” to them both. So then my noble friend Lord Kingsland turned round to me and said, “Well, there it is. There is no object; this is just a nonsense”. I just smiled because I thought, “What else can you do?”. That is my side of it and I am very pleased to have been vindicated publicly.
Lord Goldsmith: I do like this place.
I think that I have been quite clear with the noble Lord, Lord Kingsland, on what I believe is the position. I shall say one more thing. The decision on whether prosecutions take place is not a matter for the Government. Ultimately it is a decision for the Attorney-General as the senior civilian authority. If the noble Lord, Lord Kingsland, of whose forensics I am very well aware, has somehow trapped my noble friend, that will not prevent the responsibilities that I have constitutionally being exercised. I am going to move on.
Why do I not accept the route that the noble Lord, Lord Campbell, has proposed? It is for the reasons given by the noble and learned Lord, Lord Mayhew, and the first reason but not the second reason given by the noble Lord, Lord Kingsland. The background is that there are many hundreds of cases each year in which the UK military and civilian police prosecuting authorities decide whether offences committed by UK servicemen in this country should be tried in military or civilian courts. In those cases, as the noble Lord, Lord Thomas, said, they decide without any apparent difficulty guidance set out in Queen's regulations. The noble Lord, Lord Thomas, asked whose decision was final. I believe that that was clearly stated by my noble friend Lord Drayson when he correctly stated on Amendment No. 59A that ultimately the civilian authorities have the final say. If there is a disagreement between the prosecuting authorities, ultimately that would mean as the House of Lords has said a decision by the Attorney-General as the senior civilian authority. So, ultimately the matter is for the Attorney-General. So, it is too, in overseas cases where the United Kingdom civilian courts and the courts martial have concurrent jurisdiction. That is—I disagree with the noble Lord, Lord Kingsland, as he knows—under the constitutional responsibility for the enforcement of the law recognised in the case of Bastow by the House of Lords and as part of my superintendence as a prosecuting authority. It is not in the Bill; it is part of our constitutional arrangements.
Judges have a crucial role in safeguarding against any abuse of the court process. You can make an application for an abuse to stop a case on the grounds of abuse. Equally you can apply to a court which is trying a case to say that there is no evidence to support it and no case to answer. Both of those applications were made to Mrs Justice Hallett. The first problem in
11 Oct 2006 : Column 321
I shall read only one reference by Lord Dilhorne, a very distinguished judge and former Law Officer and Lord Chancellor, who said:
“A judge must keep out of the arena. He should not have or appear to have any responsibility for the institution of a prosecution. The functions of prosecutors and of judges must not be blurred. If a judge has power to decline to hear a case because he does not think it should be brought, then it soon may be thought that the cases he allows to proceed are cases brought with his consent or approval”.
What would happen if a serviceman was being prosecuted in the civilian court because a judge said it was right to do so? Is there not a risk that the jury will think, “Well the judge thinks this is a good case”. Would not the serviceman in those circumstances think that he was at risk of not getting a fair trial? So I have that objection as well.
I come to the one point where I recognise the point made by the noble Lord, Lord Campbell, and others. Looking at the future, does it make sense that in circumstances where a serviceman may be prosecuted in a civilian court and might expect if he is to be prosecuted that it will only be at court martial, he should have some notice of that and an opportunity to make some representations? I see the force of that. I would not want to take it too far for several reasons. I would not want to see great delay, formality or satellite litigation because delay of that sort only delays it from the point of view of the serviceman. Sometimes one would not know who all the potential servicemen are. It happens sometimes that there is a case that once it starts to be investigated by the civilian or military authorities, other soldiers or servicemen come into the picture. I would not want to stop and start, but I am happy to assure the House that if cases in the future are brought to me in the circumstances referred to in the noble Lord’s amendment—active service operational circumstances overseas and the possibility of a civilian proceeding—I will seek to ensure that the views of the serviceman or servicemen who are known at that stage as defendants are made known to me. They will have the opportunity of making written representations as to the venue. I do not expect it to take long. I do not expect it to result in complicated legal proceedings. But I hope that the noble Lord will see that by that assurance I have given to this House, it meets the final part of what the noble Lord has been seeking to obtain.
The noble Lord tabled this probing amendment to obtain assurances for the future. I hope that he will take the view that he has succeeded substantially,
11 Oct 2006 : Column 322
| Next Section | Back to Table of Contents | Lords Hansard Home Page |