I fully support the noble Lord, Lord Thomas of Gresford, on the first of these amendments but, before explaining my reasons, my primary purpose in tabling these amendments is to try to ensure the proper morale of Her Majesty’s Armed Forces and the standing in which they are held by the public. One has to bear in mind always that in the modern criminal justice system, where successive
Governments have ensured that the victim or complainant —I will use the words interchangeably—is put at the heart of the system, that is taken fully into account. One can see this so often. For example, recently, the public look at the way in which the police investigate and they will look at the way in which people are tried. Are they being tried fairly and is there a proper balance?
It is important to realise that what I seek is, first, to achieve a much greater degree of certainty in relation to these matters and, secondly, to try to ensure that the Armed Forces are not subjected to yet more complaints about the nature of the justice system. It is evident from the report of Judge Shaun Lyons, a most distinguished Naval Judge Advocate—and a judge who is in charge of a major London criminal court—that there ought to be the change which the noble Lord, Lord Thomas of Gresford, has so carefully gone through. I fully support his amendment but, in view of the difficulties that arise, it is necessary to go a little further.
If I may explain, I want to deal with two issues, one of which, the position of crimes committed overseas, I regret to say the Minister was not happy about last time. However, there is a serious issue and I shall take a moment or two to refer in detail to the law on this subject. The other is in relation to crimes outside the ambit of the proposal to deal with sexual offences, murder and other serious offences.
It is right to begin by recording that, particularly in relation to the most terrible crimes that have occurred, one can go back a very long way. I have seen many of these crimes myself, although the first of them occurred one year after I was born. It concerned the involvement of a battalion of the Scots Guards in an event at a place called Batang Kali during the Malayan emergency. That case was not investigated properly at the time; it is now abundantly clear and there remained a residue, which went right down to the early 2000s, about the way in which it had been approached.
In more recent times, there were the cases involving Baha Mousa and others in Iraq. There was the Blackman case, to which I regret I will have to return, and there were the points raised by one newspaper last Sunday. From what I have seen in each case, regrettably, one has to be sanguine about the fact that such conduct may well occur again. We have to deal with it in a way that is fair and just, while maintaining the morale of the Armed Forces.
We shall turn to looking at investigation when we come to consider the report of Sir Richard Henriques but, on this amendment, we are concerned with jurisdiction. Who has jurisdiction to try a case? Jurisdiction is not like deciding whether you prosecute. It goes to the fundamental position of the court and, over the centuries, it has always been the position that Parliament controls the jurisdiction of the courts. As I mentioned at Second Reading, it is also a fundamental principle that for certain offences there is a right to trial by a jury of 12 people. It is very difficult to see any justification whatever for taking that right away from one of Her Majesty’s citizens. It is fundamental; one has only to read Lord Devlin’s classic work on the jury to realise how core this principle is to our justice system.
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It is also important to bear in mind that in offences in the UK, which can be tried in either the magistrates’ court or the Crown Court, it is the right of a defendant to decide where he should be tried. Although successive Governments have tried, in the interests of efficiency, or this or that or whatever else, to take that fundamental right away, Parliament has always decided against it. Therefore, when we look at this question of jurisdiction, the rights of an individual and, equally importantly in this case, the reputation of Her Majesty’s Armed Forces, it is a matter that Parliament ought to decide. We should not leave it to a protocol that has no parliamentary supervision.
I have therefore put forward in the amendments in my name and signed by the noble Lord, Lord Thomas of Gresford, a series of factors that ought to be taken into account when one is dealing with cases other than those specified in the earlier amendment. I have specified some because I consider them of paramount importance. The first, obvious one is the right of the defendant, about which I have spoken. The second, these days, is the position of the victim and the third is the public interest. It seems to me very important that if, as must be the position, there is a choice of jurisdiction, this should not mean that for crimes committed in the UK it is left entirely to the prosecutors to draft their own protocol without parliamentary supervision and parliamentary accountability.
In the interests of the Armed Forces, it is essential to bear in mind that a decision made on this point, as it goes to the jurisdiction, will be susceptible to judicial review. If, in my view, the issues are left to be dealt with by a protocol not approved by Parliament, the considerations and factors that will be put forward by the two independent people who will draft this protocol with appropriate consultation will be much more susceptible to attack than they would be if Parliament had said, “These are the principles on which we must act”. It is quite inadvisable not to take every step by bearing in mind the right of judicial review.
I have therefore tried to set out a series of objective factors. It is a very first attempt and, if the Minister is interested, I would welcome discussing what we should have with those more familiar with the problems. But these all attempt to be objective factors. I fully agree with the noble Lord, Lord Lancaster, that there are areas where an understanding of the ethos or the technical complexities, or of the Armed Forces, is necessary. There is good reason in some cases to allow a member of the Armed Forces to be tried by a process denied to your Lordships before the First World War—being tried by their peers in the literal sense. We are all now tried by a jury of 12 randomly selected people. I see the force of the argument but these must be objective factors and they must, in my judgment, be approved by Parliament.
I turn now to the other point covered by the protocol: the position of serious crimes, particularly the crime of murder, committed overseas. There is no doubt whatever the ordinary civilian courts have jurisdiction over murder committed by a British citizen anywhere in the world.
The history of this interesting development of law is set out in the case of R v Page [1954] 1 QB 170, which traces the position from the reign of Henry VIII right through to the present time. It became clear in a decision in 1843 in Azzopardi, a case where a British subject had murdered a Dutch national in Smyrna, that that person could be tried in England. There must be a principled approach to this issue.
This point arose in Blackman. In that case, a decision was made by the DPP that Blackman would be tried by a court martial under a protocol made in September 2011. At the time he was indicted that was not challenged, but it was challenged in the first of the Blackman appeals—to give the Minister’s advisers the reference, that is [2014] EWCA Crim 1029. It is evident from that case, ex post facto, that trial before 12 ordinary British citizens was seen by the defendant—rightly or wrongly; that does not matter—as more advantageous to him. In the second Blackman case, the point did not arise. There was a real question whether Blackman should be tried, if there had been a retrial, by a jury of 12 people before an ordinary court.
This is therefore an open point. I simply fail to understand how it can conceivably be in anyone’s interests not to resolve this issue in Parliament. It might be right to sideline Parliament for certain things, but it is beyond my comprehension: why risk judicial review to a much greater extent? Why risk a dispute in relation to a member of the Armed Forces who killed someone overseas without having clear parliamentary scrutiny and approval of the principles?
If that has not persuaded the Minister, there is yet one further point, which relates to devolution. The Bill is carefully crafted—it obviously has to be—to allow for agreements to be made between the Director of Service Prosecutions and the chief prosecutors in the three criminal jurisdictions that make up the United Kingdom: England and Wales, Scotland, and Northern Ireland. I am greatly indebted to the noble and gallant Lord, Lord Craig of Radley, for this point: it cannot be right to see the risk that there might be inconsistencies in the way the prosecutor in one jurisdiction approaches the matter from the prosecutors of a different jurisdiction. The only way of solving this problem is for Parliament to approve the principles set out. That is why there is an elaborate proposed new clause—I am greatly indebted to parliamentary counsel for their advice as to how I should frame it—which provides for parliamentary approval.
I have taken those reasons at some length; they are issues that were of great concern over the past 10 years when I was a judge. A number of cases came before the courts in which the reputation of the Armed Forces was at stake. I do not think anyone present during the appeals in Blackman could have appreciated the very considerable public concern that had arisen. I do not for a moment have anything but the greatest admiration for the way the Judge Advocate-General, Judge Blackett, tried that case, but that is not the point. The point is the standing of the Armed Forces. I see no downside whatever to Parliament approving these matters to settle them. It will safeguard the Armed Forces and everyone.