COURTS-MARTIAL ETC (Hansard, 2 November 2004)

§ Baroness Scotland of Asthal

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 14 to 17. These amendments are intended to reflect in court martial procedure the changes that were made by current Clauses 17 and 18. It also reflects the change made by Amendments Nos. 12 and 13 that we considered a moment ago, that a decision whether a defendant is fit to plead will be made by the judge advocate alone rather than by the lay members of the court martial, and it makes consequential amendments.

The service legislation in this area is out of date. An attempt to provide an updated framework was made in the Armed Forces Act 1996, but the regulatory framework that it provided for has proved too complex and it has never been commenced. Therefore, it is now a matter of some urgency to put appropriate provisions in place.

The effect of the amendments is to allow courts martial to slot into the Mental Health Act 1983 and to make hospital orders on the same terms as civilian orders. That has meant abandoning the AFA 1996 provisions, which had envisaged a system allowing courts martial to commit people to hospital in Scotland or Northern Ireland as well as England and Wales. It is right that I should emphasise further that under the new provisions a person who is admitted into hospital in England and Wales can later be 238 administratively transferred to a hospital elsewhere in the United Kingdom, if that is appropriate in his or her case.

The amendments also address a problem with the service legislation that has become apparent only from recent House of Lords and ECHR case law. The AFA 1996 Act envisages that orders admitting people to hospital or non-residential supervision would be made with input from both the judge advocate—that is a civilian judge—and the lay members of the court martial, who are non-legally qualified military officers and who serve a function like a jury. This is consistent with the normal courts martial sentencing procedure which allows the lay members to have input into sentencing because of their expert knowledge about the effect of criminal offending on military discipline.

However, the case law makes it clear that these orders are not to be considered as criminal in nature, but as mental health matters. While the court members will still decide on the facts of the case, it is therefore inappropriate to have lay input into the orders themselves. The decision should be made by the judge advocate alone on the basis of advice from mental health professionals.

In addition, Amendments Nos. 14 to 16 make some technical improvements to Clause 17. Those changes are not related to the court martial system, but simply improve what we have already done for the civilian system.