Armed Forces Bill — House of Lords, 2016-04-27
Topic: Law and Crime
Donald Thomas (Liberal Democrats, Centre to centre-left): My Lords, the issue raised by Amendments 1 and 2 is whether a serving member of the Armed Forces is a citizen in uniform and entitled to the same protection of his rights and freedoms as any other citizen, or indeed as a member of any other disciplined service, such as the police, or whether, as a matter of policy, he and his family should, if they come with the character of persons subject to service law, be subject to a fundamentally different judicial procedure in respect not just of breaches of the disciplines inherent in his trade or calling, but, under Section 42 of the Armed Forces Act 2006, of the entire body of criminal law, including the most serious charges The system of jury trial probably predates the Norman Conquest. It involves the trial of serious criminal charges by 12 members of the public. It has been like that for the best part of 1,000 years. From at least 1367, unanimity was required, whether the verdict was guilty or not guilty. Six hundred years later, by Section 13 of the Criminal Justice Act 1967, majority verdicts were allowed in the ordinary criminal courts. With the consent of the trial judge, after a period of appropriate deliberation and directions, a verdict by a majority may be received. Where there is a finding of guilt, the vote has to be stated in open court. Where there is an acquittal, no majority is stated The criminal standard of proof is guilt beyond reasonable doubt: the jury has to be sure. Sir Patrick Devlin said, in his famous book Trial by Jury: "The criminal verdict is premised upon the absence of reasonable doubt. If there were a dissenting minority of a third or a quarter that would of itself suggest to the popular mind the existence of a reasonable doubt and might impair public confidence in the criminal verdict" That was in 1952, when majority verdicts might suggest that a reasonable doubt existed Public confidence is everything. I do not propose to repeat everything that I said at Second Reading and in Committee but it is obvious, by the series of media storms that we have endured and the public demonstrations that have taken place, that the verdict of a court martial does not command public confidence. To draw a very topical parallel, it is inconceivable that if police officers involved in the Hillsborough disaster were to be tried for gross negligence and manslaughter by a panel of senior police officers, the outcome would be acceptable The system of courts martial has its origins in a statute of Edward I in 1279, which enacted that, by virtue of the royal prerogative, the sovereign of England has the right to command, and thereby the power to regulate and discipline, the military forces of the nation. The Court of the Constable and Marshal administered military law, although the office of constable was effectively abolished when Henry VIII beheaded the then Lord High Constable—so the right to try military offences devolved to an ad hoc committee of officers, known first as Marshal Courts and then as courts martial. The authority of courts martial later derived from a succession of Mutiny Acts passed between 1678 and 1878, then subsequently by the Army Act of 1881 and its successors, which will shortly include this Bill. So the two systems of civil and military law had quite different origins and it is only very slowly that they have converged—but converged much more rapidly since the European Court of Human Rights delivered a devastating verdict upon the system back in about 1989 Every move has met with resistance from the military and the civil servants advising them. For example, I read with interest today a debate of 1926 in the other place where Ernest Thurtle, the Member of Parliament for Shoreditch and the son-in-law of George Lansbury—later leader of the Labour Party—sought the abolition of the death penalty for cowardice or desertion. The same old familiar arguments were produced: that it was bad for discipline and would reduce the determination of soldiers to fight if the death penalty for cowardice were abolished. The Government of the day had no answer to the argument that the Australians were under no such constraint when their bravery and discipline at Gallipoli and elsewhere could not be doubted. That Bill eventually got through in 1930 under a Labour Government but was rejected by the House of Lords, notably led by Lord Allenby and other retired generals. The House of Commons had to insist upon it for it to go through My Amendment 1 seeks to replace the current Section 160 of the Armed Forces Act 2006 to take another step towards convergence. In the third edition of Rant on the Court Martial and Service Law, edited by the current Judge Advocate-General, Judge Blackett, paragraph 5.126 states: "An undisclosed simple majority decision in a serious case where the defendant is at risk of a significant custodial sentence might be perceived as being inherently unsafe, since the outcome rests on a knife edge … This provision is a legacy from the past, which represents a significant weakness in the Service justice system and a striking contrast with the much more secure arrangements in the Crown Court. When there is legislative opportunity the law should be changed", in a court martial, said the Judge Advocate-General, "to require either a unanimous verdict, as, for example, is the case in the Court Martial system in other Commonwealth countries such as New Zealand or at least a significant and disclosed majority".