I shall leave that to those who are much more technically gifted than I am to resolve.
I say to the Committee that I absolutely hear the concerns expressed and am not giving some cosmetic response to them. These concerns are being addressed, and in many respects have been addressed. I hope that we are going to see that a much healthier climate exists within the Armed Forces.
I turn specifically to Amendment 5, which seeks to ensure that the most serious crimes as listed in the amendment are tried in the civilian courts when committed by a service person in the UK, unless, by reason of specific naval or military complexity involving the service, the Attorney-General has specifically consented for such crimes to be tried at court martial. I realise that there is much interest in the Government’s decision not to follow recommendation 1 in the Service Justice System Review. While we accept the need to improve the decision-making processes in relation to concurrent jurisdiction, we do not believe that the introduction of an Attorney-General consent function is the best way to achieve it.
By way of background, I would like to be clear that the primary reason the service justice system was established was, as we discussed earlier today, to support operational effectiveness and maintain the service discipline of our Armed Forces. The recently published review by Sir Richard Henriques and the service justice system review by His Honour Shaun Lyons were unanimous in accepting that premise; they strongly supported the continued existence of the service justice system. The noble and learned Lord, Lord Thomas of Cwmgiedd, referred to the importance of public confidence in that system. I entirely agree: it is vital that the public and victims, and service personnel, have confidence that this system can act adequately in respect of what it is asked to do.
Sir Richard Henriques stated in his review, published just last week, that he agreed with the Government’s decision to retain unqualified concurrent jurisdiction for murder, manslaughter and rape. Sir Richard, a retired High Court judge, found the service justice system to be fair, robust and capable of dealing with all offending. This endorsement of capability echoes the conclusion of the process audit conducted as part of the Lyons review, which previously found that the service police have the necessary training, skills and experience to investigate any crime. The service police, prosecutors and judiciary are trained, skilled and experienced, while independent prosecutors can be trusted to make appropriate decisions on jurisdiction.
I think it was the noble Lord, Lord Thomas of Gresford, who raised the issue of statistics on conviction rates. It is not possible to draw a meaningful statistical or data comparison between the service justice system and the civilian system, because the small database in the service justice system means that variances have a disproportionate effect, which I think everyone can understand. That can lead, frankly, to false conclusions.
We are confident that the service justice system provides an effective and fair system of justice for our Armed Forces. What we recognise, as in the very point raised by the noble and learned Lord, Lord Thomas of Cwmgiedd, is the public confidence issue and that it
can be maintained only if the service justice system not only has but can be shown to have the capability to deal with all offending fairly, efficiently and in a manner which respects and upholds the needs of victims. That is why we continue to implement the recommendations of the Service Justice System Review, some of which are measures in the Bill. This will ensure that the service justice system is more effective and efficient and provides a better service to those who use it.
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The independent review by Sir Richard Henriques also considered how processes can be strengthened going forward. The report contains a total of 64 recommendations, approximately a third of which are focused on taking forward the establishment of a defence serious crime unit, as originally recommended in the Lyons review. This will deliver better outcomes for service justice while maintaining operational effectiveness. We have prioritised a number of recommendations for inclusion in this Bill as government amendments, namely those concerned with the defence serious crime unit and the creation of a new provost marshal for serious crime.
To build on these developments, we have committed to publishing a defence-wide strategy for dealing with rape and serious sexual offences in the service justice system. The strategy will aim to reduce the prevalence and impact of rape and other serious sexual offending in the Armed Forces, and to improve the handling of those cases in the service justice system.
Aside from these steps to increase capability, at the heart of recommendation 1 is the desire to ensure that serious offences are dealt with in the most appropriate jurisdiction. It is about good decision-making as to where concurrent jurisdiction exists. Although the Government accept that decision-making can be improved, we do not agree that an Attorney-General consent function is the best way to achieve this. I will try to address this point.
Amendment 5 seeks to introduce what I might describe as a novel form of Attorney-General consent that focuses on where a case should be dealt with rather than whether it should be prosecuted at all. This difference is key, as the timing of the consent is critical to whether it would assist or hinder decision-making. It would be impractical to request such consent during the investigation process, as the facts of the case may not be immediately apparent; and requesting consent at this stage would not only interrupt the critical “golden hour” of evidence collection but ask the impossible of the Attorney-General.
To give a practical example, the Attorney-General is unlikely to be able to make an informed decision on the correct jurisdiction for an alleged rape case that took place in a barracks because he receives a telephone call in the early hours of the morning. It would be unreasonable to expect him to do that. For him to make an informed, meaningful and final decision, the request for consent must come at the point of charge on completion of the investigation. By that time, key decisions on jurisdiction will already have been taken by the service police and prosecutors, or civilian police and prosecutors, to progress the investigation as efficiently as possible.
These decisions are already guided by protocols agreed between the two systems. If they are well-designed, as proposed in the Bill, then Attorney-General consent adds little to the quality of decision-making. Conversely, if the Attorney-General were to disagree with the view of the service and civilian prosecutors that the case should be tried in the service justice system, that could lead to delay. It might even lead to the possibility of a case not being tried in either system. There is no simple way of transferring cases at a later stage from the service to the civilian system. The case would need to return to the civilian police to reinvestigate. The passage of time might even make prosecution non-viable. That cannot be the right outcome for anyone, not least the victims.
For these reasons, the Government have instead opted to take a more pragmatic approach. Clause 7 ensures that decisions on jurisdiction are left to the independent service justice and UK civilian prosecutors, using guidance they have agreed between themselves. Once in place, this new statutory guidance will be used to revise existing protocols between the service and civilian police to bring much-needed clarity, at all levels, on how decisions on jurisdiction are made.
In this way, decision-making on jurisdiction will be improved as service and civilian authorities will make key decisions together as early as possible, with the civilian authorities always having the final say. I know that that it is a matter of concern for the noble and gallant Lord, Lord Craig of Radley; I shall come to that when I address his contribution. This will provide a greater safeguard to ensure that cases are dealt with in the most appropriate jurisdiction than an Attorney-General consent function could achieve.
An important point to highlight about Clause 7 is that the protocol is agreed between service and civilian prosecutors. Both the Director of Service Prosecutions and the Director of Public Prosecutions in England and Wales are superintended by the Attorney-General. We can expect the Attorney-General to take an interest in both the drafting and operation of the protocol in a superintendence capacity. It is true that this will not involve the Attorney-General in day-to-day prosecution decision-making in the way a consent function would, but the Attorney-General will still have a role to play. This pragmatic approach will ensure that decision-making is taken at the right level by those with access to the most up-to-date information, and in a manner that respects and upholds the needs of victims. I hope that explanation provides your Lordships with an assurance that sufficient consultation will take place. I therefore urge the noble Lord to withdraw Amendment 5.
Moving on to Amendment 6, there may be something of an echo of what I have already said, and perhaps an introduction of some material that might be relevant to Amendment 5, but I hope noble Lords will bear with me. Amendment 6 sets out a number of factors that the Director of Public Prosecutions in England and Wales and the Director of Service Prosecutions must consider when they draft the guidance in the protocol on the general principles that will govern decisions on jurisdiction. These factors include what is described as “the ordinary right” of a person to trial
by jury, the views of the complainant or victim and those of the defendant, the relevance to the trial of knowledge of specific naval or military complexity, and the intended location of the trial. The final factor in the amendment is the desirability of a uniform approach to the exercise of the jurisdiction as between prosecutions in the courts of England and Wales, Scotland and Northern Ireland.
The amendment has a fairly elaborate structure regarding laying a protocol before Parliament for approval, giving either House 40 days to pass a vote refusing to give that approval; if that does not happen, approval is deemed to have been given. If the protocol is agreed, the Secretary of State must publish it and lay it before Parliament. The noble and learned Lord, Lord Thomas of Cwmgiedd, spoke at length about the role of Parliament and why it should be involved. I just observe that there is no parliamentary process for civilian prosecutors to seek approval for the jurisdiction in which a case should be dealt with. There is also an argument to be posed about whether it is desirable that parliamentarians rightly get involved in the independent—and I think it has to be independent—discharge of their roles by prosecutors.
On the noble and learned Lord’s question about the rights of a defendant regarding where to be tried, defendants have a right concerning the venue of a trial but not the jurisdiction in which it should take place—for example, whether it should be dealt with in Scotland or Northern Ireland rather than in England and Wales.
Full jurisdictional concurrency for offences committed by service personnel in the UK has been a part of the service justice system since implementation of the Armed Forces Act 2006. Clause 7 of this Bill maintains that jurisdictional concurrency while bringing clarity on how decisions on jurisdiction are made. We believe that the creation of the guidance by way of a protocol is best left to the independent service justice and UK civilian prosecutors for England, Wales, Scotland and Northern Ireland. Clause 7 sets out that the protocols must all advance “fair and efficient justice” but does not seek to impose prescriptive conditions on how this can be achieved. It is, after all, the prosecutors who have the skills and experience in dealing with decisions on jurisdiction, and these should be taken based on guidance in the form of a protocol that they have agreed between them. Decisions in individual cases will then be based on the circumstances of each case, in accordance with the protocol.
If general principles for the guidance are put in the Bill, the protocol and subsequent decision-making process of prosecutors will obviously be fettered. There will also be a loss of flexibility in the long term should changes or updates be required to the guidance to reflect progress or developments such as changes to policy or operational deployments.
The amendment also sets out the desirability of a uniform approach to the exercise of the jurisdiction between prosecutions in the courts of England and Wales, Scotland and Northern Ireland. Again, we do not believe it necessary to set this out in statute, because the Director of Service Prosecutions will be very much aware of the need for a coherent approach across the UK. Obviously, there are significant differences
between the criminal justice systems in each part of the UK, so a uniform approach will not always be either appropriate or realistic.
As I said earlier, the amendment states that the Secretary of State must lay a draft of the protocol before Parliament for agreement within a 40-day period and, if it is agreed, publish it and lay it before Parliament. I observe that the Delegated Powers and Regulatory Reform Committee published its report on the Bill on 18 October and did not recommend additional parliamentary scrutiny of the protocol. It has other observations to make, and we are of course listening with care to its concerns on these matters.
In addition to the statutory consultation set out in the Bill, I understand that there will also be a public consultation on the draft protocol, and our clause already requires the final version to be published. Although this is a matter for the prosecutors, the intention is to have the England and Wales protocol ready after Royal Assent of this Bill, with the other two protocols for Scotland and Northern Ireland to follow shortly thereafter.
I suggest that adding an additional step or stage of parliamentary scrutiny and approval to the proposed process is both burdensome and unnecessary. A public consultation will already have been carried out on the draft. It is the prosecutors who have the skills and experience in dealing with decisions on jurisdictions, which should be based on these skills and experiences using the protocol they have agreed. I hope your Lordships can see that the approach the Government are taking ensures that those with the right skills and experience are making the decisions within a framework that they have agreed. This will ensure that justice can be done fairly and efficiently in both civilian and service jurisdictions, and across the UK.
I move on to the notice of intention of the noble and gallant Lord, Lord Craig, to oppose Clause 7. As I said earlier, I detect that he is very supportive of the service justice system but apprehensive about what the practical impact of Clause 7 could be. I think he feels it could tip the balance, with more prosecutions going to the civilian system rather than staying within the service justice system. I wish to reassure him that there is no intention for a certain number of cases to be dealt with in one jurisdiction, or more in one than another. What matters is that cases are dealt with in the right jurisdiction, and that is what the protocol is all about achieving. Clause 7 tries to do that by enabling prosecutors to produce guidance on the best means to achieve this.
The noble and gallant Lord will also realise, from the recent government amendments tabled in my name with reference to the defence serious crime unit, that there really is a very concerted effort on the part of the MoD to ensure that the service justice system is absolutely standing on its own two feet, ready and able to cope with whatever it may be asked to deal with. With the earlier amendments suggesting that certain crimes might be dealt with in the civilian system, I felt an apprehension that the public’s perception might then be that the service justice system was not up to it or was a poor relation. I do not want that perception to arise, because I think it dangerous and completely misconceived, but I can see how it could arise.
The service justice system applies throughout the UK because defence is a reserved matter but, in contrast, criminal justice is devolved and there are three separate and different civilian criminal justice systems in the UK: in England and Wales, in Scotland and in Northern Ireland. Each system has its own different component parts; this includes the officeholders who have responsibility for prosecutions.
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I hope that the noble and gallant Lord is reassured by what I am saying. We have every confidence in the service justice system. In organising a protocol about where a prosecution is to go—within the service justice system or the civilian system—we have provided for a really solid process of consultation that will result in meaningful protocols being published by the prosecuting authorities.
The principle of concurrent jurisdiction throughout the UK already exists; the Bill makes provision for the three separate protocols, each being clarified and put on a more formal basis, to maintain it. It is very likely that they will all be broadly along the same lines, but that is a decision for the prosecutors concerned. Progress is being made; we are developing them with the Director of Service Prosecutions, the Director of Public Prosecutions, the Director of Public Prosecutions for Northern Ireland and the Lord Advocate in Scotland. Due consideration has been given to ensuring consistency, while capturing the applicable differences between the civilian criminal system in England and Wales and that of Scotland and Northern Ireland.
The Bill includes matters that must be part of all three arrangements. As I said earlier, they must all advance fair and efficient justice and provide that, if there is disagreement between the service and civilian prosecutors, the civilian prosecutor will have the final say. Otherwise, the protocols must respect the differences in the systems across the United Kingdom. In view of the devolution of criminal justice, to me, speaking as a former lawyer from Scotland, it would be wholly wrong for a single protocol to be imposed on Scotland and Northern Ireland.
An important point to highlight is that the clause requires the independent prosecutors to consult extensively before agreeing to a protocol, so a breadth of views will be sought. The Government recognise that the current non-statutory protocols and agreements in relation to concurrent jurisdiction need improvement. I suggest to the noble and gallant Lord that removing Clause 7 would be a missed opportunity to provide greater certainty for victims on where their case will be handled, and to improve clarity for the police, prosecutors and others involved in the decision-making on concurrent jurisdiction of cases.
I have addressed this at some length because I wanted to reassure the noble and gallant Lord that I have heard his concerns. I hope that he understands that the intention behind Clause 7 is to do what we all want: to provide clarity for all relevant parties and support victims of crime when they need it most. I urge him to reconsider his intention to oppose Clause 7.
We now move to Amendment 7 in the name of the noble and learned Lord, Lord Morris of Aberavon, supported by the noble and learned Lord, Lord Thomas
of Cwmgiedd. It seeks to place a duty on the Secretary of State for Defence to commission a panel to review the operation of the court martial. The panel would be required to consider whether court martial rules should be brought into line with those of the Crown Court for trials of murder, manslaughter, rape and other serious injury offences. That would include consideration of whether the judge in such cases should be nominated by the Lord Chief Justice of England and Wales. There is also a direction in the amendment about the panel considering whether cases should be heard by a jury of 12 persons, and whether that jury must deliver either a unanimous or a majority verdict.
The noble and learned Lord, Lord Morris of Aberavon, referred to the review of the service justice system by His Honour Shaun Lyons, who looked in detail at the constitution of the court martial and recommended changes, which we are implementing through measures in the Bill. I pay tribute to the noble and learned Lord for his efforts in producing that initial review from His Honour Shaun Lyons; that was a creditable achievement on his part. He will be aware that Shaun Lyons carefully considered the use of 12-member boards but determined that they would be burdensome administratively and disruptive to operational effectiveness; and that three and six-person boards would better enable the court martial to remain mobile, with the ability to function in widely disparate geographical areas where operations might be being conducted.
Shaun Lyons also recommended that if a unanimous decision could not be reached by the panel, the lay members should reach a verdict by qualified majority voting in the same way as civilian juries do in the Crown Court. That is a recommendation that we are implementing in the Bill.
The amendment sets out that there should be consideration of whether the judge in cases of murder, manslaughter, rape and other serious injury offences should be nominated by the Lord Chief Justice of England and Wales. The judiciary for the service courts are fully qualified to hear the most serious cases, and in fact support the civilian system by sitting as judges in the civilian Crown Court. The Judge Advocate-General, the senior judge responsible for the service courts, already has the power to ask the Lord Chief Justice for a High Court judge to be nominated to sit on a particular case. The judiciary for the service courts was considered by Shaun Lyons, who did not suggest any substantial changes. The one recommendation that he made regarding the judiciary was that the judge advocate be given the power to make a request for a circuit judge as well as a High Court judge, and we are implementing that recommendation in Clause 3.
The amendment also provides that the review carried out by the panel should consider that the number in a majority decision is made public, in a similar procedure to that of the Crown Court. Although His Honour Shaun Lyons recommended that we adopt six-member panels that would reach verdicts much like a civilian jury, he did not recommend that the number of votes in a majority decision be announced in public. The Court Martial Appeal Court has also ruled that in the current system the number of votes should not be announced.
However, we will be considering what changes to procedure, if any, are appropriate when we amend the court martial rules to implement the Bill.
I hope that explains our approach and assures noble Lords that both the composition and the operation of the court martial system—