My Lords, I speak to Amendment 6. Its purpose is simple—that the decision that the prosecutor makes takes into account the quality, thoroughness, independence and accountability of the investigation. It may be said—as appears from the Minister’s letter—that these matters are being looked at by Sir Richard Henriques in the review that he is conducting. No doubt the detail of all this can be gone into at that time—for example, how independence is to be safeguarded and accountability achieved. No doubt we will need to look at the position in other states. All that is for the future.
However, this Bill is being brought forward now. One matter that must be addressed now is that prosecutors, in deciding whether to continue, have to take into account the quality of the investigation in the respects I have set out in the amendment. I have put this forward based on my own experience of three cases that came before me when I was a judge. In the military context—and the civilian context is exactly the same—they pointed to the importance of thorough, well-resourced investigations.
The first case related to the deaths of 24 people in what is now Malaysia during the communist insurgency in 1948, which came back to the courts in 2011. That very unhappy series of events came back because the initial investigation was not thorough, a subsequent investigation was stopped before it was completed and, by the time the matter came before the courts, there was clear evidence that the original explanation of what had happened—namely, that these persons killed had been shot trying to escape—had been given by soldiers on instructions and that 24 people were killed in cold blood.
The second illustration relates to invents in Iraq and what happened in numerous cases, the most significant of which is the death of Baha Mousa. That is a paradigm example of how a poor investigation can be so terrible that it sometimes takes a very long time to see what went wrong.
The third and perhaps more surprising example is the conviction of Sergeant Blackman for shooting a member of the Taliban. When it originally came before the court martial, there had not been a sufficiently proper investigation of the circumstances, the stresses he underwent and his perception of the support he got from his command. That came out only afterwards and was one of the matters that, as appears from the judgment of the Court of Appeal, led to his conviction being reduced to manslaughter.
The thoroughness and independence of the investigation are critical in any decision to prosecute. A similar reflection can be obtained from ordinary cases; where things have gone wrong or there is a problem, it is the investigation. It is important that an investigation is fair—that is why it is listed—and thorough. And it should be fair in both senses: to the accused and to those who say a crime has been committed.
Independence is of equal importance. Any detailed consideration of the Malay case to which I referred and of the judgment of the Court of Appeal in the Blackman case shows how independence and accountability are also important. Therefore, what must be taken into account as a matter of principle—not of detail, that is for later—are these matters relating to the investigation. It may be said, “Well, things have got a lot better”. However, we all know that even the most well-organised body can make mistakes in the conduct of an investigation, and accountability and independence need to be of a very high level in certain types of case.
I am putting forward this amendment to show that this nation has regard to the covenant and the support it is necessary to give to our Armed Forces, but also to show that we must be seen to do justice, because the doing of justice is equally important. The quality, thoroughness, independence and accountability of the original investigation, if there has been one, or of the more recent one, should be at the forefront of the prosecutor’s decision.