APPLICATION OF SECTION 2 TO COMMITTAL PROCEEDINGS, COURTS-MARTIAL AND SUMMARY TRIALS (Hansard, 21 May 1976)

§ Mr. John
I beg to move Amendment No. 25, in page 4, line 41, after 'substituted', insert:

'(i) in the case of a trial by court-martial for which a judge advocate is appointed, a reference to the judge advocate, and

(ii) in any other case,'.

This would enable a judge-advocate, where one is appointed, to hear and determine applications under Clause 2 for leave to adduce evidence or ask questions in cross-examination instead of the courts-martial itself, because apart from that it would be an unqualified legal body.

§ Mr. Lee
Having been perhaps a little churlish to my hon. Friend on a number of matters today, I would like to add a word or two of appreciation of what is in the circumstances an improvement. Perhaps I might also be allowed to say a word about the conduct of courts-martial. There cannot be many instances in this context in which they are likely to exercise their jurisdiction, but there are nevertheless some cases where they may do so.
Over the years, one has seen the power of the president of a court-martial diminish and the power of the judge- 2004 advocate enhanced. The judge-advocate used to retire with the lay members of the court-martial to consider the verdict and not merely advise them on points of law and sum up in judicial fashion. I believe that that procedure has gone and that it is the practice now for the judge-advocate not to retire with the members of the court and, therefore, not to give advice—as it were, in secret—about the way matters are conducted.
I should like to know from my hon. Friend, since he has raised the question of courts-martial and their jurisdiction, in what cases it is likely that they will exercise their jurisdiction. For a long time after the war, almost all civil offences in Germany by British subjects. including rape presumably, were dealt with by courts-martial. I understand that this was a hangover from the immediate post-war situation. Anomalously, not only were British Service men subject to military law but British civilian personnel in Germany were justiciable by courts-martial.
I do not for one moment suggest that the courts-martial were not conducted in the most proper way. In my limited but valid experience, I have always found them to be scrupulously correct, fair, and unoppressive towards advocates appearing before them, or towards military officers performing the duty of advocate. Nevertheless, the House is entitled to know a little more about the likely applicability of this clause. It is no good putting it in by a side wind and regarding this as a tidying up operation. The House is entitled to know the circumstances in which a judge-advocate is likely to have to apply it.

§ Mrs. Wise
Will the hon. Member accept that this speech is a yet further example of staggering irrelevancy, and that the people of the West Midlands whom he represents—and especially the women—will not allow it to go unmarked that he has deliberately impeded a Bill designed for the greater protection of women?

§ Mr. Lee
I am flattered to be said to represent the West Midlands. As far as I know, I have been sent here by the electors of the Handsworth division of Birmingham. As to the irrelevance, that is a matter for the Chair and not for my hon. Friend.
2005 What I should like to know from my hon. Friend the Minister of State is—and again I choose my words carefully; I do not want him to think that I am imputing disrespect—how experienced are the judge-advocates who are likely to be administering this matter? We have just had a very long debate on Clause 2 and I have been very helpful in withdrawing one amendment and speaking very briefly on another. Nevertheless, the interpretation of the clause and the ruling upon the admissibility of questions would tax a very experienced High Court judge. Whereas it is not invariably the case, as I understand, that rape offences are tried by a "red" judge in this country, they are always tried by a judge of very considerable experience. When my hon. Friend the Minister of State replies, perhaps he will help the House, in seeking to judge the value of the amendment he has proposed, by telling us a little about the qualifications of the judge-advocate and the experience expected of a judge advocate in trying these matters.
Am I right in thinking that most civilians engaged in the military establishment, so to speak, have a notional rank for the purpose of messing, status, and so forth—in other words, a status rank? Will my hon. Friend be good enough to tell the House what is the status rank of a judge advocate at a general court-martial trying a case of this kind? What is the rank of the president of the court? I suppose that one would not have a court-martial with a president holding a rank lower than that of full colonel. Is that right? I imagine that it ought to be at "red tab" level. I wish to know not only the rank of the president but also the notional status rank of the judge-advocate.
This question may betray my ignorance of military law, but are there any circumstances in which there would be a trial for a rape offence at a district court-martial at which a judge-advocate was not present? I am not entirely clear about the position, from the amendment. Its wording seems to imply that there would inevitably be a judge-advocate present. I know that in certain circumstances there can be a district courts-martial, dealing with difficult cases, at which a judge-advocate is present, but it is not the invariable practice.
2006 I wish to know from my hon. Friend, in relation to his amendment, first, whether such a case would be tried only by a general court-martial. Secondly, am I to understand that the rank of the president would not be lower than that of staff officer? Thirdly, may I know the status rank of a judge-advocate in such a case? I assume that it would not be less than field officer rank. One would suppose that the president of the court would be a brigadier or major-general, and that the status rank of the judge-advocate would be that of full colonel.

§ Mr. John
In so far as some of the disquisitions on military rank are relevant, I can answer my hon. Friend by saying that under military law certain matters are left to the Judge Advocate General in general courts-martial. He is the sole authority to advise on matters of law. He is usually an experienced barrister, who is appointed, and he has considerable experience of trying these matters. Therefore, the phantoms that my hon. Friend has been conjuring up are not substantial.