REQUIRED CUSTODIAL SENTENCES (Hansard, 2 April 2001)

§ Mr. Harry Cohen (Leyton and Wanstead)
The schedule deals with required custodial sentences from courts martial. The notion of custodial sentences without 87 jury trials and established civilian court standards is offensive. On Second Reading, I asked my hon. Friend the Minister for the Armed Forces: Why has my hon. Friend not had a more radical look at the court martial system, particularly for serious offences? What has he got against having the equivalent of a jury trial for those serious offences, moving away from other service men considering those cases? He replied: It is simply because I am not a radical sort of fellow."—[Official Report, 9 January 2001; Vol. 360, c. 898.] Clearly, a radical review did not therefore take place. However, I believe that an overall review of the operation of the system would have been preferable to the attempts to tinker with it that the Bill proposes.
I tabled an amendment, which was not selected, to propose a committee of inquiry into the system. It suggested that civilian law standards and procedures and the Human Rights Act 1998 should form part of the inquiry. The Bill represents a missed opportunity on the court martial system. It tinkers with a fundamentally unjust system that is long past its sell-by date, and it does so without an overall perspective.
In peacetime, a defendant from the armed forces should have the same rights, including human rights, as a defendant in a civilian court. Such defendants should have a jury trial, an independent judge, the ability to choose a defence lawyer and a public hearing. That should apply especially when custodial sentences could be imposed. Trials for civilian offences should take place in a civilian, not a military, court. Other less serious matters should be subject to internal disciplinary rules and procedures, but not disciplinary courts with legal power. They should resemble employment tribunals.
In wartime, procedures should be subject to later civil review.

§ Mr. Hancock
I am not unsympathetic to the hon. Gentleman's point, but will he furnish us with evidence to show that many miscarriages of justice at tribunals or courts martial have occurred and that custodial sentences have been overturned at subsequent hearings?

§ Mr. Cohen
I am about to provide some evidence. When conducting research in the House of Commons Library, I found an article written by my hon. Friend the Member for Falkirk, West (Mr. Joyce) for the Fabian Review in March 1999, in which he said: This reminds me that I acted judge and jury at a Court Martial while writing the pamphlet"— I shall refer to that shortly— and sentenced a young soldier to life for murder. He is now perhaps the only lifer in Britain who did not receive a trial by a jury of his peers. He should be the last. That is evidence.
The Fabian Society pamphlet entitled "Arms and the Man—Renewing the armed services" was written earlier. It states: There can be no doubt that we need an in-house disciplinary structure; but we should now question whether it should have the force of civilian law. We should also question whether it is now appropriate that soldiers charged with very serious crimes in a 88 peacetime context, for which a guilty verdict will lead to imprisonment in a civilian prison, should be routinely denied a jury of their peers. Being "routinely denied" such a jury is unsatisfactory. People should not be sitting in jail without having a jury trial in serious cases.

§ Mr. Blunt
I have watched the operation of the civilian and military justice systems. Someone is far more likely to get a fair trial under the military than the civilian system. If the principle holds for a lesser offence, why should it not hold for the most serious offences? Is the hon. Gentleman suggesting that there was a miscarriage of justice in the example that he gave?

§ Mr. Cohen
I do not share the hon. Gentleman's view. Trial by a jury of peers for the most serious offences is a fundamental tenet of British civilian law. There is also an important human rights element. People might well take their cases to European Court of Human Rights and claim that their rights had been infringed by not receiving a jury trial. We shall see what happens in that respect.
7.30 pm
In the pamphlet that he wrote for the Fabians, my hon. Friend the Member for Falkirk, West talked about a legal time bomb, He was really referring to other matters, but this, too, could be a legal time bomb.

§ Mr. Hancock
It is important to note, when quoting a case such as the one that the hon. Gentleman has described of a service man who was tried for murder and found guilty under court martial procedures, that that service man could have been represented by civilian legal advisers, and probably was. We shall no doubt hear that that was the case. We also need to know why that case was tried under military law rather than under civilian law. Will the hon. Gentleman explain more of the background to the case?

§ Mr. Cohen
The basis of my argument is that cases involving serious offences should be tried under civil law and an independent judge. There are dangers in armed forces personnel trying such cases, even if they are not associated with the defendant's regiment. That is because they share a similar ethos with other commanding officers. It is important to have independent judges and public hearings. I know that most courts martial have public hearings, but they also have the ability to sit in camera. That could represent a serious abuse of a defendant's rights.

§ Mr. Blunt
I do not understand the distinction that the hon. Gentleman is drawing between serious offences and other offences. All offences in which a defendant comes before a justice system are likely to be serious if that defendant is likely to end up in prison. I am not sure, therefore, why the hon. Gentleman does not simply extend his argument to the whole of the courts martial system. Why should there be a particular cut-off point? Either the courts martial system is just or it is not. In my judgment, and that of the military as a whole, it is. The system is held in great respect and we change it at our peril. Will he pursue that point?

§ Mr. Cohen
The cut-off point is when someone could go to jail for an offence. That is very serious. If it is 89 possible that someone could go to jail, they should have the right to a jury trial and a civilian hearing. If their alleged offence did not carry a jail sentence, it would be more akin to a disciplinary matter for an employment tribunal. That could then be dealt with under military law—not by disciplinary courts but by ordinary tribunals such as those used by employers generally.

§ Mr. Blunt
I want to be absolutely clear that the hon. Gentleman is saying that the whole of the military justice system should be ended. Even a commanding officer, under summary justice procedure, has the capacity—

The Chairman
Order. The hon. Gentleman convinces me that we are getting wildly off the point. The schedule is not about whether there should be courts martial, but about the sentences that should apply I would appreciate it if hon. Members brought their remarks back to that rather narrower point.

§ Mr. Cohen
I chose to speak on this schedule because it is about required custodial sentences, and I do not think that the courts martial system is appropriate for cases that carry those sentences.

§ Mr. Gerald Howarth
Will the hon. Gentleman tell the Committee how many service men and service women are currently being held in custody under the schedule?

§ Mr. Cohen
Clearly the gentleman referred to in the article by my hon. Friend the Member for Falkirk, West is in jail. Perhaps it is right that he should be—it almost certainly is. However, he is in jail without having had a jury trial. That is a good question to ask the Minister: how many other people are in jail without having had a jury trial? That is the aspect of this matter that I find offensive.
The Government responded to the case of Findlay v. the United Kingdom, which was a European Court of Human Rights judgment delivered in the late 1990s. In 1990, Lance-Sergeant Findlay, a service man serving in Northern Ireland, ran amok with a loaded pistol, threatening to kill himself and others. At a court martial in November 1991, he was sentenced to two years' imprisonment, a reduction of rank and a dishonourable discharge. He appealed to the European Court, saying that various aspects of the court martial had been unfair, and that the subsequent sentencing reviews contravened article 6 of the European convention on human rights. He also stated that he had not been given a reason for the level of sentence, and that subsequent post-hearing review procedures were largely administrative … On 21 January 1997 the ECHR held that the British court-martial system did breach Article 6 on the basis that it lacked independence and impartiality. The judgment stated: … the applicant's fears about the independence of the court martial should be regarded as objectively justified particularly in view of the nature and extent of the Convening Officer's roles, the composition of the court martial, and its ad hoc nature. Regarding the impartiality of the court-martial the European Court declared that: … the tribunal must be subjectively free from personal prejudice or bias, and must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect. The European Court also found against the system in other respects. That was a case in which someone received a custodial sentence, which is what the schedule deals 90 with. That was a damaging judgment, and this part of the Bill contains the Ministry of Defence's response. I think that it is a very unsatisfactory response. Basically, it proposes applying summary proceedings against officers, which is likely to prove unsatisfactory. It also proposes abolishing naval disciplinary courts—I think that all the disciplinary courts should go—and that warrant officers should be able to serve on court martial panels. However, those warrant officers would not be able to serve on cases in which the accused person was of a higher rank. That is ridiculous, and a reflection of the hierarchical, class-ridden nature of the armed forces. That is like saying that a worker cannot sit on a jury if the defendant is a manager.
The MOD's response also proposes that the Attorney-General can refer court martial decisions to an appeal court if he thinks that the sentence is unduly light. The Ministry claims that that is the same as in the present civil procedure. However, the big difference is that, in the present civil procedure, there would have been an original trial by jury before the sentence was passed. That would not be the case in a court martial.
The Ministry's response also included a proposal to exclude most court martial proceedings from the possibility of a judicial review. That is a denial of a legal right.

The Chairman
Order. The hon. Gentleman is trying to hang far more on this schedule than is possible within the rules of order. He is developing a more general argument that falls outside the provisions of the schedule, and I must ask him to desist.

§ Mr. Cohen
I will desist, but I was trying to save the House time by not speaking to all the different amendments.
I return to the central point of the schedule, which is that it involves custodial sentences. The final response of the Ministry was that courts martial should have the power to compel the production of evidence or attendance of witnesses. That means civilian, not military, people being subject to compulsion by a military court. That is out of order.

§ Sir Geoffrey Johnson Smith (Wealden)
I know that the hon. Gentleman follows these matters carefully in the NATO Parliamentary Assembly. Will he explain how he proposes to make the process more democratic when the Army has differences of rank—or is that what the hon. Gentleman calls "class-ridden"? Is he proposing to abolish those differences as well?

§ Mr. Cohen
I am proposing that all people, including officers, who are brought into this arrangement and who might perhaps summarily have a custodial sentence passed on them, should have the right to a jury trial in a civilian court.
The response from the Ministry of Defence to the European Court judgment on Findlay v. the United Kingdom was feeble and defensive. It lost sight of the overall perspective. The whole courts martial system is flawed because it still does not accord with civil law in lots of respects or with civil proceedings, arrangements and standards. In peacetime, the armed forces should not have a separate court system and should not be able to 91 send people to jail for serious offences without jury trial. In wartime, such arrangements should be subject to civil review.

§ Mr. Paul Keetch (Hereford)
The hon. Gentleman refers to peacetime and wartime. Will he explain what he perceives to be the difference between peacetime and wartime jurisdictions and court trials?

§ Mr. Cohen
That is an obvious difference. In wartime, there is an emergency situation. People may be at the front and commanding officers have to make decisions about men who they think are in breach of the rules and regulations. That should be the case, but there should be a review in a calmer environment—for example, back in this country. There is no such emergency in peacetime, so the civilian courts could deal with those cases.
The Bill as it applies to courts martial is a shallow response to the ECHR judgment. The procedure was rushed through with little criticism being made and we are stuck with it for five years. We are not even doing the groundwork to have it changed when we consider the next Bill, but, meanwhile, we could face a legal time bomb and perhaps even compensation claims under that ECHR ruling.
I repeat my view of sensible reform: we should abolish the courts martial system in peacetime; all serious cases should go to a civil court and there should be a right to jury trial; there should be transparent and fair disciplinary procedures, not courts, in all other cases; and defendants should have the right to representation. In wartime, there should be a civil review after the event. That is my point of view, which I am happy to put to the Committee.

§ Mr. Hancock
I am mindful of your look across the Chamber, Sir Alan. I shall bear in mind the time available.
The hon. Member for Leyton and Wanstead (Mr. Cohen) made a case for considering over the next five years how courts martial operate and his final point was the most valid of all. He said that no groundwork is being done to address any injustices that occur. I have attended a number of courts martial in and around my constituency because my constituents have been involved, but also out of interest due to other involvements. I have seen them operate.
I also represent, like other hon. Members, a significant number of service personnel at all levels, but I have yet to hear one complain about the procedures adopted once the process has started. Many thought that the processes that led to arrest and laying charges were deficient—

The Chairman
Order. The hon. Gentleman is picking up the broadest of the points made by the hon. Member for Leyton and Wanstead (Mr. Cohen), which I suggested he should not make. I allowed some latitude, because he claimed that he was stringing together one or two different points that went wide of the schedule. I understand that he did that for the convenience of the Committee, but I cannot offer the same tolerance to other Members to enable them to pursue the debate on such broad terms.

§ Mr. Hancock
I shall do my utmost to focus my comments on the matter before us.
92 There is no compelling evidence to show that the system that we are considering is a bad one, although changes will need to be made over time. The review of armed forces discipline as a whole will mature over the next three or four years and we must take into account how European legislation will interact with it, so the next time that the House discusses the issue, significant changes will undoubtedly be made to the way that the system works. I do not believe that courts martial offer a disservice to armed forces personnel, especially when custodial sentences arise from their decisions, because all defendants have the right of appeal and the right to have outside legal opinion on their side if they so choose.

§ Mr. Blunt
I shall abide by your injunction, Sir Alan, and refer to the detail of the schedule.
To pick up the points made by the hon. Member for Leyton and Wanstead (Mr. Cohen), he omitted to mention a matter that is pertinent to considerations under section 70 of the Army Act 1955. Section 70 takes the Act into civil procedure and, of course, there is an appeal mechanism that ends, effectively, at the Courts-Martial Appeal Court and then the House of Lords. I share the views of the hon. Member for Portsmouth, South (Mr. Hancock) and, whatever the mechanism about which the hon. Member for Leyton and Wanstead is concerned, the system is safe and just and there is an appeal route.
Although the hon. Gentleman's arguments about the wider courts martial system are perfectly reasonable in terms of other European countries, the schedule should be accepted as it stands. As he suggests, the situation that he described pretty much applies in Germany, where all such offenders who commit civil offences are dealt with under the civil law, not a provision similar to the 1955 Act or the schedule.
The schedule should stand part of the Bill precisely because of the operational experience of the British Army and the inability to differentiate between peace and war, which was displayed by the hon. Gentleman and which shows why our system is robust. I draw the Committee's attention to the example that he and the right hon. Member for Walsall, South (Mr. George), the Chairman of the Defence Committee, witnessed during a Defence Committee visit to Kosovo in November 1999.
The right hon. Gentleman may recall the circumstances in which soldiers from a British unit serving in Kosovo some six months after the occupation by NATO forces conducted what appeared, on the face of it, to be the robbery of a store in Pristina. We do not know what happened subsequently under the justice system, but they had apparently committed a serious offence. Is the hon. Member for Leyton and Wanstead seriously suggesting that we should have set up a civil trial in the United Kingdom and flown the jury and everyone else out there so that they could see the premises? Should we have had proceedings to-ing and fro-ing between the UK and Kosovo? That would have been wholly inappropriate in such circumstances and the example shows that there is no neat dividing line between peace and war for our armed forces. That is why we need the schedule.

§ Dr. Moonie
We think about the courts martial system very carefully whenever such Bills are considered and at other times. We are well aware that the system that we 93 apply to our armed forces is different from that which we apply to the civilian population, but I happen to believe that it is pretty fair and that the safeguards that we built into the Bill last year have made it still fairer. That, surely, is the object of the exercise. The truth should be discovered and discovered in a fair way. Although I fully appreciate the emotional and intellectual attachment of my hon. Friend the Member for Leyton and Wanstead (Mr. Cohen) to the jury system, I cannot say that I particularly share it. The system has served us well for many years. Other systems serve other countries equally well, or, some might argue, better.
I want to make some specific points about courts martial. They are held in public and are therefore open to public scrutiny. Defendants choose their own lawyers. An appeal against court martial findings can be made to the Courts-Martial Appeal Court, which is made up of civilian judges. With regard to overseas offences, certain very serious offences committed in the United Kingdom, such as murder and rape, must be tried by a civil court, but that court cannot deal with offences committed abroad.
One purpose of trying very serious offences committed abroad by means of court martial is to safeguard service personnel from local law, which may not be governed by the European convention. Sierra Leone provides an example of that. The schedule would bring all disciplinary offences and trials within the provisions of the convention.
We take many considerations into account in drawing up proposals to be included in armed forces Bills. As I have said, we certainly take account of the scope for bringing court martial procedures more into line with the corresponding procedures in civil courts, without affecting the principles that apply. In this Bill, for example, we have allowed for the possibility of review of unduly lenient sentences, for costs orders, and for the possibility of bail following appeal.
We propose those changes because they will benefit the operation of the system, and make it fairer. They have not been dreamt up in isolation; they reflect provisions that already operate in the civilian system. This is part of a long-standing policy of keeping in step with the civilian criminal justice arrangements, where it is sensible and practical to do so.

§ Mr. Key
During his time in the Ministry of Defence, has the Minister had time to attend a court martial?

§ Dr. Moonie
No, the Minister has not, although I have been able to review the written proceedings of several. It would be quite a pleasant way of spending an afternoon—it would certainly be informative—but so far I have not had the time.
As for the Human Rights Act 1998, we have made many changes. We have brought procedures into line with the European convention on human rights. We have removed any apparent influence of the chain of command over the administration and conduct of courts martial. The European Court of Human Rights has recognised our actions, and, in the judgment on the Findlay case, noted the changes that we have made with satisfaction, saying that the United Kingdom authorities had made changes to the court martial system with a view to ensuring the observance of their convention commitments.
The Bill itself has been certified by my right hon. Friend the Secretary of State, on the basis of legal advice, as being compatible with convention rights. That means 94 not just that specific proposals in the Bill are compatible, but that the three service discipline Acts that will remain in force under it are as well. Ensuring that that happens has meant checking that all our procedures are compatible with the convention. Most of them already were: after all, we signed the convention nearly 50 years ago.
We are not complacent; we are always prepared to review legislation. I think that my hon. Friend the Member for Leyton and Wanstead would be very surprised if I said that I agreed with the principle that he is trying to apply, but I certainly agree with his aim, which is to make the system as compatible as possible with the civil disciplinary system, and as fair, open and transparent as possible.

§ Mr. Gerald Howarth
The Government may think that the Bill is compatible with the European convention on human rights, but I wonder whether it has been subjected to scrutiny in connection with the charter of fundamental rights signed by the Government in Nice.

§ Dr. Moonie
I do not think that that was necessary. The Bill complies with the law as we have to observe it, and it will be a better Act as a result.