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Baroness Symons of Vernham Dean: I understand the reasons for the noble Lord's amendment. It is tempting to draw parallels with the arrangements in the civilian criminal justice system. In the civilian courts, the accused, in choosing between trial by magistrates or trial in the Crown Court, faces the possibility of a heavier sentence in the higher court.

The noble and learned Lord, Lord Mayhew, drew our attention to that point at Second Reading. However, the choice facing an accused in the civilian system is also indisputably between two forms of trial which are both compatible with the European Convention on Human Rights.

On the other hand, in the services it may not be so easy to argue that summary dealings on their own are compatible with the convention. They can be made

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sound, in convention terms, by offering the alternative of trial by a compliant court and the right of appeal. However, the choice needs to be genuine, and this is not the case if an accused is compelled to put himself in jeopardy of a greater punishment in order to secure his right to a compliant court. Therefore, because he must face the possibility of a greater sentence in the compliant court, there may be less likelihood that he will make that choice. As he is in jeopardy of a higher sentence he is not being offered a genuine choice.

To retain the powers for the courts martial to award a more severe sentence--or, indeed, to allow the new summary appeal court to do so--would, therefore, not achieve the effect of bringing summary dealings within the scope of the convention. However, election for courts martial trial is not without risk from the accused's point of view. Although the court martial will be limited to the maximum sentencing powers available to the commanding officer, the accused will need to consider whether within these powers he is likely to receive a heavier sentence from the court or from the commanding officer. If he elects trial by courts martial, he will also face the risk that the prosecuting authority will consider that he should face a different charge. In this case, the accused may not be offered the option of election on the new charge, in which case there would be no limitation on the sentencing powers of the courts martial.

I hope that your Lordships appreciate that our main purpose is to ensure that the procedures for summary dealing are within the scope of the convention--that is what the legislation tries to ensure--which is of the utmost importance. The amendment would defeat that objective and I must ask the noble Lord to consider withdrawing it.

4 p.m.

Lord Burnham: Of course I accept what the Minister says with regard to another charge. However, listening to everything else that she has to say, I fear that the noble and gallant Lord, Lord Carver, is right and that those matters may well have to be tested in the courts. At Second Reading I quoted a noble and gallant Lord who said to me in private, "We know what we are talking about". I have a deep fear, in particular having just listened to the Minister, that that may not always be the case with her advisers. I fear that when we come to a later stage of the Bill, we shall have to be far more robust in our opposition to certain aspects of it than we have been today, when the Christmas spirit is all around your Lordships. Therefore, I give clear notice that we shall on a future occasion oppose this and other amendments. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 87 not moved.]

Clause 12 agreed to.

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Earl Attlee moved Amendment No. 88:

    After Clause 12, insert the following new clause--


(" .--(1) After section 102 of each of the 1955 Acts there is inserted--
"Conduct at court-martial.
102A. Unless the prosecuting authority has previously applied for and obtained leave from the court a person charged before a court-martial shall appear in uniform with belt and headgear and without escort."
(2) After section 66A of the 1957 Act there is inserted--
"Conduct at court-martial.
66B. Unless the prosecuting authority has previously applied for and obtained leave from the court a person charged before a court-martial shall appear in uniform with headgear and without escort." ").

The noble Earl said: The amendment is designed to probe the Minister's view on the courts martial procedure. Noble Lords will recall the concerns that I raised during Second Reading regarding the procedure whereby the accused is marched into the courts martial room. In short, he is marched in without belt or headgear and under escort. I must say that, as a member of courts martials, I found that unnecessary and distasteful. It added nothing to the process. As I said at Second Reading, I feel that the summary jurisdiction is far more about the maintenance of discipline and morale; in short, the military ethos. On the other hand, the courts martial system needs to be as well-developed a system of justice as we can make it.

I hope that the Committee sees me as one who believes in the need for robust disciplinary machinery and as a great traditionalist. However, I do not believe that it is necessary to disadvantage the accused by subjecting him to a somewhat degrading procedure. I also do not believe that it appears appropriate to the public and to the media. It is a hangover from a previous age.

In a civilian court, it is well known that the accused will often be advised to pay attention to his appearance; in other words, to improve it. A wise person accused will want to be deferential to the court, but he will want also to create a favourable impression. In the courts martial system, the accused is treated in a way which tends to suggest that he is already guilty, although he will of course be given a fair chance to defend himself.

I do not profess to be an expert on ceremonial or military etiquette, but I believe that the accused should be given the opportunity to pay compliment to the court in the same way as the accused in a civilian court may alter his appearance in recognition of the importance and the status of the court. I make one possible suggestion for a new procedure: the accused should march himself in unescorted and salute the president of the courts martial. The president may then order all headgear to be removed in the usual manner. I accept that if there is a possibility of the accused becoming uncontrollable then appropriate precautions would need to be taken. If the accused is acquitted at the end of the courts martial, he may replace his headgear, salute the president and march out. If he is found guilty and sentenced, he will of

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course not need his headgear. The procedure might need to be modified to take into consideration whether a custodial sentence was imposed.

I accept that the best way forward is for the defence counsel to make those detailed changes. That is not something that should be placed on the face of the Bill. Indeed, it is only the flexibility of the Committee that allows us to debate the issue this afternoon. However, I believe this to be an important matter and I look forward to hearing the Minister's views. I beg to move.

Lord Wallace of Saltaire: The amendment seems to me to make a very humane suggestion. As a probing amendment, it brings the conduct of military discipline up to what one would describe as "modern standards". The procedure as described by the noble Earl, Lord Attlee, appears to be a remnant of an 18th or 19th century army, and I trust that the Minister will respond on that point.

Lord Glenarthur: I have some sympathy with my noble friend's remarks. However, has he considered the case of a soldier who was under close arrest beforehand and who would have appeared either before his commanding officer or elsewhere similarly deprived of his belt and headgear? If that soldier appears before a courts martial or a commanding officer, does my noble friend agree that that situation might complicate matters? I am all for some degree of humanity in this matter. On the other hand, I believe that under the military ethos there is much to be said for the rather stark measures which might appear to be necessary, particularly under active service conditions.

Baroness Symons of Vernham Dean: The noble Earl raised those issues at Second Reading. I appreciate his motives for bringing them forward again now. Like the noble Earl, I am not convinced that those matters are appropriate for primary legislation. I believe that the noble Earl made clear that that was also his view and that he was using the amendment as a means of elucidating our views.

At present, those issues are covered by regulations. Perhaps I may say to the noble Earl that it is no longer the case that belt and headgear are removed from the accused. The accused removes his headgear at the same time as everyone else is required to do so. However, we must ensure that the regulations and the revised practice all work in accord with each other. I undertake to look into that point for the noble Earl. However, it is the case that those practices have now been reformed.

On the other point which was raised, I do not believe that I can agree with the provision which discontinues the use of the escort officers without the prior approval of the court. It may well be that someone is accused of a violent crime and may unexpectedly pose a threat to the safety of the court. I suggest to the noble Earl that we would be much wiser to ensure that the option of using an escort officer is left to the discretion of the services.

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