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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
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.
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.
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.
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.
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.