RELEASE FROM CUSTODY AFTER CHARGE OR DURING PROCEEDINGS

HC Deb 06 April 2000 vol 347 cc1164-73

1.9 pm

Mr. Crispin Blunt (Reigate)

I beg to move amendment No. 13, in page 24, line 23, leave out from "imprisonment" to "or" in line 24.

Madam Speaker

With this it will be convenient to discuss the following amendments: No. 14, in page 24, line 48, leave out from "imprisonment" to "or" in line 1 on page 25.

No. 15, in page 25, line 26, leave out from "imprisonment" to end of line.

Mr. Blunt

I am somewhat concerned by the remark made in business questions by my hon. Friend the Member for New Forest, West (Mr. Swayne) about the very Back Benches and wonder whether I am sitting in an unfortunate place. However, I hope that the distinction is not meaningful.

I should first declare my interest as the Bill and these amendments in particular apply to me as a member of the Regular Army Reserve of officers.

So far, the way in which the Bill has been considered has done no credit to the Government and their supporters. On Second Reading and throughout the Committee stage, only one substantive contribution was made by a Labour Back Bencher, and that was the Chairman of the Select Committee on Defence, which had conducted an inquiry into the Bill.

Mr. Graham Brady (Altrincham and Sale, West)

That is clearly a record that Labour Back Benchers wish to maintain—not a single one is present now.

Mr. Blunt

My hon. Friend anticipates what I was about to say. Not one is here.

Hon. Members

There is one.

Mr. John Bercow (Buckingham)

But she is the Minister's parliamentary private secretary.

Mr. Blunt

I am, of course, delighted that the Minister is supported by her parliamentary private secretary.

Mr. Robert Key (Salisbury)

A Liberal Democrat is present, and we are very glad to see him.

I thank my hon. Friend for giving way, because he has given me an opportunity to apologise to the hon. Member for Hereford (Mr. Keetch), whose name I took in vain in Committee when I said that he was present very rarely. The hon. Gentleman had not told me or the Committee beforehand that, unfortunately, he would be in hospital. If he had told us, we would probably have been gentler with him.

Mr. Blunt

I thank my hon. Friend for what he has said.

So far, the Government have accepted none of the amendments that my hon. Friends and I tabled in Committee. Most of those amendments were designed to improve the Bill, and to reduce the substantial burden that it will impose on the armed forces. The problem with the Bill is that it is riddled with peacetime assumptions about—

Madam Speaker

Order. I remind the hon. Gentleman that the amendments stand in his name. He is now embarking on a Third Reading speech, whereas he should be dealing with his amendments in detail.

Mr. Blunt

I am grateful for your guidance, Madam Speaker. I am about to deal with the amendments.

The amendments are concerned with the Bill's effect on both peacetime operations and full operations in time of war. They attempt to improve the Bill, and to allow it to cover all the circumstances in which it will have to operate. I am thinking particularly of circumstances in which people are involved in wartime operations. In such extreme circumstances, the last thing the authorities want to do is detain people. I envisage circumstances in which people have been, in effect, remanded: they are not in custody, but they have a duty to turn up to face trial when required to do so by the authority concerned—in this instance, the judicial officer or the judge advocate.

The problem with the generality of the Bill—on which my amendments focus—is that it makes a number of assumptions about how the military operates. It assumes that we permanently deploy our military in times of peace, or in operations short of war. As Brigadier Ritchie made clear in his evidence to the Select Committee, the last thing the authorities want to do is detain people in the extreme circumstances of wartime, because it consumes resources; but they will want to be pretty sure that those concerned will turn up to face trial. The simple purpose of my amendments is to ensure that, if people fail to turn up, the court martial system can impose appropriate sentences.

1.15 pm

Under the Bill, the sentence is limited to a maximum of two years' imprisonment, which is for going absent without leave, but, in the most extreme circumstances, the accused may be told that he will not be detained because of lack of resources. If he then fails to turn up, it can be an offence equivalent to desertion; if it is an offence equivalent to desertion in the face of the enemy, it is clearly a most serious offence. The simple purpose of the amendments is to remove the two-year limit, so that, effectively, the court can produce a punishment that meets the seriousness of the situation. That would mean that the Bill would suit all circumstances during operations of the greatest seriousness and in time of peace.

I tabled the amendments in Committee. I am grateful that you have selected them again, Madam Speaker, because in Committee the Minister seriously misunderstood their effect. He said: The purpose of the amendment, which would reduce the punishment that a court martial can impose on an accused for failure to appear at a hearing, is unclear. That is not the case—the punishment is increased as the amendments would remove the limit.

When the Minister was considering whether to accept or reject the amendments in Committee, he clearly misunderstood their effect, or was misdirected by his officials. I hope that tabling them on Report will give him the opportunity to reconsider his position.

There was a second serious misunderstanding by the Minister: he misunderstood the Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957. Where clause 5(2)(b) applies, the accused, if he is subject to military law only by virtue of section 131 or 205(1)(ea), (eb), (g) or (h) of this Act— the Army Act 1955— may be required to comply. The Minister clearly had been directed only to what was meant by section 131, not to what was meant by section 205. In his guidance to the Committee, he said: The clause will not apply to personnel who are still serving; it will apply only to those who have left service but who are subject to a charge from a previous period of service.—[Official Report, Standing Committee D, 2 March 2000; c. 100-01.] That is not the case.

Section 205 of the Army Act and the equivalent sections in the other Acts make it clear that the measure applies to every officer of the Territorial Army who is a special member when in permanent service, when in full-time service or when undertaking any training or duties. Subsection (1)(eb)—which applies to me—applies to every officer of the Army Reserve when in permanent service, when in full-time service, when undertaking any training or duty or when serving on the permanent staff of the Army Reserve. Similar subsections apply to warrant officers, non-commissioned officers and men of the three services.

I hope that the Minister has had a chance to reconsider the facts. On his advice as to how the law stood, I withdrew the amendments and did not press them in Committee. I am sure that that is why you have given me the opportunity to raise the matter again on Report, Madam Speaker.

These simple amendments improve the Bill and enable it to operate in all circumstances, in both peace and war, which was what we were aiming for in Committee. I regret that, in arguing for other amendments in Committee, we failed to convince the Minister. There were rather more Labour Members supporting him in Committee than are present on Report.

Nevertheless, I hope that the Minister has listened to my argument, and that he will be able to reconsider his position and break his duck in amending the Bill.

Mr. Key

I am grateful to my hon. Friend the Member for Reigate (Mr. Blunt) for tabling this group of amendments, which gives the Minister an opportunity to clarify the position. In Committee, we were almost wholly constructive in our opposition. Although we had our moments—a frisson—now and then, those were an attempt to clarify an immensely complicated system of law. People do not really understand the complexity of the three services Acts, each of which has slightly different interpretations and presents slightly different challenges in being applied to the legal system.

My hon. Friend has drawn attention to the difficulty of imposing any law on the battlefield—or in theatre in anticipation of battle, or, increasingly, in a peace-enforcing or peacekeeping role—and to the fact that we really have to be very precise about what we are asking our commanding officers and courts martial or other courts to do. I look forward to hearing the Minister's comments in clarifying the situation, which certainly was not clear in Committee.

The Parliamentary Under-Secretary of State for Defence (Dr. Lewis Moonie)

I am sure that the House would expect me to comment on two recent incidents in Northern Ireland before I reply to the debate.

This morning, there was an explosion at Ebrington barracks, Londonderry. This further attack on the security forces is reprehensible. Fortunately, no one was injured. It is yet another crude and cynical attempt by a small number of people to disrupt the peace process by the use of violence. We cannot let them succeed. Investigations into the incident are continuing, and I am not at liberty to comment on it any further.

I was also very sad to learn of the non-terrorist-related deaths of two soldiers and the injury of one other while carrying out operations on Lough Foyle. The circumstances of that tragic incident will be the subject of a thorough investigation. Meanwhile, our thoughts and deepest sympathy are with their family and friends.

Mr. Menzies Campbell (North-East Fife)

rose—

Mr. Key

May I associate the Opposition with the Minister's remarks? The attack highlights the danger in which our soldiers—all Her Majesty's forces—are placed while we take for granted the peace in which we live. Many of us have visited our forces in Northern Ireland—indeed, in Londonderry—and I know the dangers that they face daily, even when we think it is peaceful.

May I also associate the Opposition with the sympathy expressed by the Minister for the soldiers who have died or been injured on Lough Foyle and for their families? It is a tragic part of service life that they are prepared to pay the ultimate sacrifice.

Dr. Moonie

I shall give way to the right hon. and learned Member for North-East Fife (Mr. Campbell).

Mr. Campbell

I am grateful. May I associate myself with the expressions of sympathy that have just been made by the official Opposition spokesman? On the first incident, although I do not expect the Government to comment in detail on matters of security, would the House be entitled to assume that, in the event of an incident of the type that the Minister has described, there would thereafter be an immediate review of the necessary precautions to assure the safety of armed forces personnel serving in Northern Ireland?

Dr. Moonie

Yes. I can assure the right hon. and learned Gentleman that that is the case.

Mr. Iain Duncan Smith (Chingford and Woodford Green)

I had not intended to intervene, but as the Minister mentioned the first incident, and following the statement of my hon. Friend the Member for Salisbury (Mr. Key) on behalf of the Opposition—

Madam Speaker

Order. I am not prepared to have a debate on the matter, as we are in the middle of consideration of the Armed Forces Discipline Bill. Proper respect has been shown in relation to the Minister's statement by spokesmen on both sides of the House. I call Dr. Moonie to deal with the amendments.

Mr. Duncan Smith

On a point of order, Madam Speaker. With respect, I was about to ask the Minister a question about the consequences of today's incident, and whether he would urge his colleagues in the Northern Ireland Office, at the earliest opportunity, to make it absolutely clear who were the perpetrators of the incident—the Provisional IRA or a splinter group. The answer has a huge bearing on the armed forces and on the way we may have to deal with the matter in Northern Ireland.

Madam Speaker

The hon. Gentleman's point will have been noted by Ministers. However, as I said, in the middle of our consideration, I am not prepared to take statements on the matter from both sides of the House. Due respect has been shown by hon. Members of the two main Opposition parties.

Mr. Geoffrey Clifton-Brown (Cotswold)

On a point of order, Madam Speaker.

Madam Speaker

Does it relate to the same matter?

Mr. Clifton-Brown

Yes.

Madam Speaker

In that case there is no point of order.

Mr. Clifton-Brown

rose—

Madam Speaker

Order. Dr. Moonie will proceed. We are considering the amendments.

Dr. Moonie

Perhaps it would help the House if I explained in some detail the purpose of the clause. I am sorry to disappoint the hon. Member for Reigate (Mr. Blunt), but I do not think that I shall be able to accept his amendments.

The offence created by new section 75J(3) of the Army Act 1955, which will be inserted by clause 5, applies only to persons who are not ordinarily subject to service law other than for the purposes of trying the offence with which they are charged. The first category caught by the new offence is those being tried under the service discipline Acts for an offence committed while they were subject to service law. A simple example of people in that category is ex-regular soldiers. Section 131 of the Army Act 1955 and of the Air Force Act 1955 and section 51 of the Naval Discipline Act 1957 provide that such former service personnel remain subject to service law, but only for the purpose of arrest, custody and trial, although they have ceased to be subject to it generally.

The second category is described in the four paragraphs of section 205(1) of the Army Act 1955, which is sufficient illustration of the three Acts. The category includes every officer of the Territorial Army who is a special member when in permanent service, in full-time service or undertaking any training or duty, whether in pursuance of an obligation or not. I stress the word "special", because those officers constitute a specific category of Territorial Army officer and are to be distinguished from ordinary Territorial Army officers, who are subject to service law at all times and do not fall within the groups that we are discussing. I shall elaborate in a moment on the various definitions, such as permanent or full-time service if hon. Members wish—or perhaps I shall just do it anyway.

The others covered by the offence are: every officer of the Army Reserve when in permanent service, in full-time service or undertaking any training or duty, whether in pursuance of an obligation or not, or when serving on the permanent staff of the Army Reserve; every warrant officer, non-commissioned officer and man of the Army Reserve when in permanent service, in full-time service or undertaking any training or duty, whether in pursuance of an obligation or not, or when serving on the permanent staff of the Army Reserve; and every warrant officer, non-commissioned officer and man of the Territorial Army when in permanent service, in full-time service, called out for home defence service or undertaking any training or duty, whether in pursuance of an obligation or not, or when serving on the permanent staff of the Territorial Army.

Permanent service is when someone is called out under the provisions of the Reserve Forces Act 1980. Full-time service is when they enter a commitment to work full-time for the services. Undertaking any training or duty refers to the minimum number of days that they are obliged to undertake by virtue of their membership of a reserve force. They can volunteer for additional duties if they wish. Persons on the permanent staff are known as non-regular permanent staff. They are similar to reserves who have signed up for full-time service, but the terms and conditions differ slightly.

The distinction between different types of volunteer reserve officer arises from the creation of a new category of reserve—those who enter employee agreements under part V of the Reserve Forces Act 1996. They are referred to as special members. The 1996 Act enables civilians to work in support jobs that would require their services in operations. Persons taking up those jobs agree as an employment term that the post includes a liability for call-out and training. They become a special member of the reserve force.

Because the call-out liability is related to the job and the people concerned are not volunteer reservists in the ordinary sense, they are not subject to service law at all times as an ordinary reserve officer would be. We are satisfied that regular soldiers or serving commissioned officers who are released from custody pending trial can be given a lawful order by their commanding officer to attend a future hearing. A subsequent failure to attend could result in such service personnel being charged with a service offence.

However, individuals who fall outside that specific but large category of personnel are not necessarily subject to the commanding officer's command and control at all times prior to the trial. Accordingly, in relation to these other individuals, it is necessary for the Bill to create an offence for non-attendance at a hearing after being released from pre-trial custody. In our view, without having specific provision for these two categories of personnel, the Bill will be defective in that such personnel could never be sanctioned for not attending any subsequent hearing. I think that that deals with the second point made by the hon. Member for Reigate about the categories of person that are involved.

1.30 pm

Mr. Blunt

Perhaps the Minister could illustrate the position by reference to me. I am on the regular Army Reserve of officers. If I am called out by Her Majesty's Government on permanent service, presumably section 205(1)(eb) would refer to me. I presume that if I were on permanent service, I would be called out only if something extremely serious had happened, such as war. Let us say that I was remanded for trial for an offence in action, which would probably be an extremely serious offence in those circumstances. If I failed to show subsequently—de facto, I had deserted—I would be caught by clause 5. Would I be caught as well under the Army Act? I do not know. If not, presumably I should be. If my offence was serious enough to be the equivalent of desertion, surely a tariff should be available to the court for my non—appearance at the subsequent hearing. That means the removal of the time limit, which is what my amendments would do.

Dr. Moonie

rose—

Mr. Deputy Speaker (Sir Alan Haselhurst)

Order. I hope that that will not set the standard for the length of interventions this afternoon.

Dr. Moonie

I am not sure which section would apply to the hon. Gentleman. If he had listened carefully to what I said, he would understand his position in that context. I do not intend to repeat myself. It would depend on the circumstances in which the services were required.

I had hoped that the hon. Gentleman would be satisfied with the detailed explanation that I gave in Committee of the need for the clause because of the persons to whom the penal provisions within it apply. I accept that that was a complicated explanation, as it was this afternoon. The distinctions between groups of persons subject to service law can be quite subtle. The clause is aimed at those cases where an individual has been released from custody prior to trial and then fails to attend trial.

I recall that the hon. Gentleman was concerned in Committee that the maximum sentence of two years did not take into account the seriousness of absconding in extreme operational circumstances. However, he must remember that the penal provisions of the clause would not apply to service personnel. They are subject to the service discipline Acts at all times and could be charged with a far more serious offence if appropriate. The penal provisions will apply where they are no longer subject to the service discipline Acts, but are being dealt with for an offence that they are alleged to have committed while they were.

The hon. Member for Gosport (Mr. Viggers) asserted in Committee that a person may well decide that a maximum penalty of only two years is not enough of a deterrent when faced with the possibility of being convicted for a very serious offence, and that he thus may abscond. We should remember that a sentence must be proportionate to the actual offence. One possible offence would be failing to attend court. The sentence must be approached separately from any sentence that is imposed for the offence that is the subject of the proceedings. If the accused is convicted of a serious offence, he will receive appropriate punishment for that offence.

To allow courts to impose long terms of imprisonment when the accused might be acquitted of the original offence would be out of proportion. The sentence is not and should not be linked to the substantive offence, no matter how serious that may be. I might add that the more serious the original offence is, the less likely it is that bail would be granted in the first place.

If a service man fails to attend, he is likely to be charged with being absent without leave, or with failure to attend a duty. Both offences carry a maximum penalty of two years. It should also be remembered that the Crown court cannot impose a sentence of more than 12 months for failure to attend trial, regardless of the gravity of the original offence.

I have given the amendments careful consideration, even though I am not prepared to accept them. However, I think that the Bill gets the matter just about right. The penalty should reflect the offence as it stands. It is appropriate and reasonably in line with civil practice, and I see no reason to change it.

Mr. Menzies Campbell

First, I wish to apologise on behalf of my hon. Friend the Member for Hereford (Mr. Keetch), who took part in the Committee proceedings on this Bill but who cannot be here today because, long before the business was allocated, he had arranged to bring some 200 of his young constituents to visit the House of Commons. He is therefore occupied elsewhere during this debate.

I hope also that the hon. Member for Reigate (Mr. Blunt), who introduced the amendment, will forgive me a moment of levity. When he said that he might be called out in an emergency, I leaned over to the hon. Member for Chingford and Woodford Green (Mr. Duncan Smith) and said that, if that happened, gas masks and ration books would be issued at the same time. However, the Member for Reigate used himself as an interesting illustration of his interpretation of this part of the Bill.

It is always a risk to let the lawyers in, but I believe that the deletions proposed in the amendment would cause clause 4(5) to read: A person guilty of an offence under this section shall be liable on conviction by court-martial to any less punishment provided by this Act. I hope that I am not guilty of misreading the proposal, but that would be a rather infelicitous use of language to try to achieve the amendment's apparent objective.

The Minister's explanation of the possible punishment available under subsection (5) seems entirely reasonable. A penalty of up to two years' imprisonment for a failure to attend would be pretty high up the tariff scale, in anyone's view. One could argue that it was nearly draconian, given the powers available to the Crown court.

I understand the amendment's objective, but it and the others in the group would leave infelicitous language in the Bill if they were accepted. In addition, an unlimited punishment would be available for a failure to attend, and that would be going too far. For that reason, if the amendment were pressed to a vote, I could not recommend that Liberal Democrat Members support it.

Mr. Blunt

I do not believe that the amendment would have the effect that the right hon. and learned Gentleman suggests. If the amendment were accepted, clause 5(4) would read: A person guilty of an offence under this section shall be liable on conviction by court-martial to imprisonment or any less punishment provided by this Act. The Minister gave the game away when he said that people charged with a serious offence would not be granted bail. That goes to the heart of why this and other parts of the Bill are defective. They do not take into account all the extreme circumstances faced by the armed forces. The simple fact is that, in extreme circumstances, people will be released on bail or from custody.

Let us take the example of a person suspected of murdering a colleague. If the case against him could not be established and the circumstances were very extreme—such as those experienced by a unit cut off behind enemy lines—it might not be possible to spare two guys to detain him and lock him up. If the person appeared to be willing to continue to fight for his unit, the decision might be made simply to allow him to do so. The Bill is supposed to cater for all circumstances, whether for current operations or those carried out in wartime. We do not want two sets of disciplinary procedures.

The amendment would simply remove the tariff. I agree with the suggestion of the right hon. and learned Member for North-East Fife that the tariff implies that it is almost inconceivable that there will be such circumstances. It is almost inconceivable, but the Bill must cope with all the circumstances that the military might face.

The Minister has said that he will not accept the amendment, even after the opportunity that he has had for reflection since the Bill was considered in Committee. I will not be pressing the amendment to a Division. However, the Ministry of Defence will be considering legislation on these matters in future, with the next quinquennial Bill and the opportunity to bring the service discipline Acts together.

Mr. Clifton-Brown

Has my hon. Fried considered circumstances in which a service man may be charged with a relatively minor offence while evidence is being gathered for a more serious offence with which to charge him? Given that he may abscond before the hearing, and assuming that almost enough evidence has been gathered for him to be charged with the serious offence, it might be appropriate to remand him in prison pending the more serious charge being brought against him.

Mr. Blunt

I confess that I had not considered that possibility. However, it illustrates another reason for the Bill to be flexible enough to cope with every circumstance.

This is a minor point. The situation is unlikely to arise because we will not, I hope, be at war in the next few years when such circumstances might occur. We will have plenty of opportunity to return to these issues, particularly if the Government make progress on bringing the discipline Acts together in a tri-service discipline Act. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.