My Lords, as so often, noble Lords have taken a great interest in the operation of the courts martial, and I welcome the opportunity to discuss the subject today. I am grateful for the careful thought that the noble Lord, Lord Thomas of Gresford, has given to the changes that he believes would improve the system and increase public confidence in it. Before turning to the detail of the amendments, I should emphasise a couple of important general points.
First, we must not lose sight of the fact that the service justice system has some carefully constructed differences from the civilian justice system for a particular and important reason, which is the maintenance of operational effectiveness. I will elaborate on that a little later.
Secondly, although he did not emphasise this today, I note that the noble Lord himself has stated in this House that he has confidence in the service justice system. If I read his concerns correctly, his main one is about public perception. He explained in Grand Committee that his proposals were intended to give the public more confidence in the findings the court martial makes. My noble friend Lord Attlee made an important point on this, because it would also appear that members of the Armed Forces have confidence in the system: some 67% of those who responded to the Armed Forces Continuous Attitude Survey for 2015 think that the service discipline system is fair. This is comparable with—indeed a little better than—the level of confidence in the fairness of the civilian criminal justice system, for which the most recent Crime Survey for England and Wales recorded a figure of 64%.
Amendments 1 and 2 seek to change three important aspects of the court martial system: the system of majority verdicts; the confidentiality of the votes of the lay members of the court martial on guilt or innocence; and the role of the lay members in deciding sentence. Amendment 1 would change the law governing decisions of the court martial on findings of guilt or innocence.
As I explained in Grand Committee, the system of simple majority verdicts in the court martial is long established—the noble Lord, Lord Thomas, took us through the history. The service discipline Acts of the 1950s, which preceded the Armed Forces Act 2006, also provided for simple majority verdicts. The system allows conviction or, notably, acquittal by simple majority of the lay members of the court martial. Before the lay members consider their verdict in a case, the judge advocate directs them, if at all possible, to reach a unanimous verdict, but they are not obliged to return a unanimous verdict. The judge advocate’s direction provides a considerable safeguard against the lay members moving too easily to a majority decision. However, if they cannot reach a unanimous verdict, a simple majority is enough to convict or to acquit. An equality of votes results in acquittal.
The noble Lord, Lord Thomas, reminded us that I said in Grand Committee that the great advantage of reaching a decision by majority is that it avoids a hung jury. I also pointed out that there is no need for a retrial in the event of a lack of unanimity or a qualified majority. I was grateful for the insights into the Scottish system given to us by the noble and learned Lord,
Lord Hope. Where there is a hung jury in the Crown Court, the accused is in limbo until they are retried or the case against them is dropped, and there could be a period of several months between trials.
The benefits of the court martial system are not simply those I have indicated—nor incidentally, are they about cost, which I think the noble Lord, Lord Thomas, implied. It has been accepted by the European Court of Human Rights that there are good reasons why, in a system of military justice, it is necessary to avoid a hung jury. The period of limbo between trials could have a negative impact on the unit concerned: there has historically been a clear military imperative to deal with transgressions swiftly to restore discipline. Further, if an accused is tried twice and then acquitted, all of their unit are likely to know that they were acquitted only second time around. The concern has always been, and remains, that this and the period of limbo between trials could ultimately affect operational effectiveness.
I understand that there are those who have questioned the fairness of simple majorities. But I remind the House that the Government have been successful in establishing, both in 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 in the last five years by the Court Martial Appeal Court—including the case of Sergeant Blackman, incidentally—and was on both occasions held to be fair and safe.
The Court Martial Appeal Court, which is made up of the same judges who sit on the civilian Court of Appeal, has held that there is no ground for deciding that a verdict by simple majority of the lay members of a court martial is inherently unfair or unsafe. The court noted, among other points, that the overwhelming majority of criminal trials in England and Wales are decided in magistrates’ courts and the process of simple majority verdicts is long established in those courts.
I note that the noble Lord’s amendment would appear to concede that simple majority verdicts are not unfair or unsafe in principle, because it would continue to allow a court martial panel with three lay members to return a simple majority verdict of two to one. I accept that the most serious cases may not be tried by a court martial panel of three lay members, but it is important to note that the Court Martial Appeal Court took the view in the Twaite case that there is no reason to conclude that a simple majority finding is safe for minor offences but not safe for serious offences.
The second aspect of the court martial system which Amendment 1 would change is the confidentiality of lay members’ deliberations. Subsection (3) of the proposed new clause would require the president of the lay members to state in open court the number of panel members dissenting where the majority finding is that the defendant is guilty. Under the existing rules, where there is a majority verdict in the court martial, whether for guilt or acquittal, neither the absence of unanimity nor the voting figures are recorded or announced. This avoids the problem of a dissenting minority calling into question the verdict of the majority in any particular case.
In the Crown Court, although it will be known that a defendant has been convicted by a majority verdict, and how many jurors dissented, the number of those dissenting can only ever be very small. Were there to be the same transparency in respect of verdicts of the court martial, the dissenting minority would always be more significant, proportionally, than the dissenting minority in a Crown Court verdict. The concern is that this could lead to the verdict of the majority being called into question.
The second concern about exposing the deliberations of the lay members of the court martial is that one of the important safeguards of their independence is the confidentiality of their deliberations. This safeguard is in place to produce a fair trial process. For that reason, the Armed Forces Act 2006 makes it an offence to disclose information about the confidential deliberations of members of the court martial. I explained those in some detail in Committee. In the Government’s view, the confidentiality of lay members’ deliberations should not be compromised unless there is a compelling case to do so. We are not convinced that there is a compelling case for requiring voting figures to be disclosed.
I hope that noble Lords will appreciate that there are good reasons for maintaining the current system. However, the Government are always keen to consider carefully whether improvements could be made to it. With that in mind, I can reassure the noble Lord that the Government are prepared to review the current arrangements for majority verdicts, with a careful look at the implications of doing anything differently and taking into account the views of key stakeholders, including the single services, the Service Prosecuting Authority and the Judge Advocate-General.
We will need to consider a number of options; indeed, the noble Lord himself has identified two. The suggestions he made in Committee differ from those made in this debate. Should it be considered necessary to amend legislation, we would seek to find an early opportunity to do so. I will report back to the House on the outcome of the review, which is likely to be in the new year.
I turn to Amendment 2 and the very significant change it would make to the role of lay members of the court martial in sentencing. I should explain that there is an important difference between the role of a lay member in the court martial and that of a juror in the Crown Court. In the Crown Court, the jury’s role is limited to findings of fact, and sentencing is a matter solely for the judge. In the court martial, the lay members determine innocence or guilt and, together with the judge advocate, vote on the most appropriate sentence. In the case of an equality of votes on sentence, the judge advocate has a casting vote.
Lay members vote on sentence in the court martial because the military context, and service experience, are highly relevant to sentencing. Judge advocates are civilian judges. They are the experts on sentencing law and practice and accordingly give directions to the lay members about sentencing law. The role of the lay members in voting on sentence reflects the fact that the court martial is part of an overall system of justice and discipline for the Armed Forces. The lay members of the court are serving members of the Armed Forces with command responsibility. They have a very important
role to play in sentencing because they are the experts when it comes to applying the special statutory sentencing principles that apply to service courts. Those principles are closely based on the civilian sentencing principles but, in addition, include “the maintenance of discipline”, and the reduction of “service offences”, by which I mean service discipline offences such as looting and absence without leave, and criminal offences.
As I previously explained in Grand Committee, these principles reflect special aspects of the service justice system. For example, military context may be relevant to sentencing: an assault against a person of superior or inferior rank may make an offence much more serious; and what might otherwise be a relatively minor case of theft may in fact have a very significant effect on morale and discipline—as with “mess deck theft” in the Royal Navy.
It is for these reasons that lay members need to have direct involvement in sentencing. Because the maintenance of discipline is fundamental to the Armed Forces, it is vital that those considering what punishment to award should have a comprehensive understanding of the effect on discipline and good order of various kinds of offending. That is why the panel is comprised of service personnel with experience of command and the exercise of service discipline at a sufficiently high level to assess the actions of those who appear before it in the court martial, in the appropriate command and disciplinary context.
The Government therefore continue to believe that the views, advice and experience of the judge advocate and the panel blend very well together so that the most appropriate sentence can be delivered; and, further, that the role of the lay members of the court should not be limited to mere consultation with the judge advocate—they should continue to vote on the sentence.
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I should add that there is no evidence at all that sentencing in the court martial is wayward. The number of appeals against sentences of the court martial is very low indeed. In 2014 there were six appeals, which represented less than 1.5% of court martial cases. By contrast, Ministry of Justice statistics indicate that an appeal is brought in around 18% of civilian cases heard at the Crown Court.
In conclusion, the Government’s view is that these amendments, for the reasons I have explained, would seriously erode fundamental aspects of the court martial system. However, as I have mentioned, we are committed to reviewing the system of majority verdicts, and I will report back to the House on that matter. On that basis, I hope the noble Lord will agree to withdraw his amendment.