The Bill addresses the duration of the Armed Forces Act 2006 (Clause 1); Service Courts - summary hearings and jurisdiction (Clauses 2 to 7); Service in the Armed Forces Clauses 8 to 10); Service Police (Clauses 11 to 12); Sentencing and Rehabilitation (Clauses 13 to 18); Posthumous pardons (Clause 19); Miscellaneous (Clauses 20 to 22) and General (Clauses 23 to 27). There are 6 Schedules.
Armed Forces Bill - Parliamentary Bills - UK Parliament
Clause 1 amends the expiry date of the Armed Forces Act 2006 which sets out the discipline system for the three Armed Forces. Under the amendment,
the Armed Forces Act 2006 section 382 will provide that the Act expires at the end of one year beginning with the day on which the Armed Forces Act 2021 is passed. There is further provision for extensions of up to 1 year but with a long stop of the end of 2026.This follows the process stemming from the Bill of Rights [1688] (legislation.gov.uk) where it is stated - "That the raising or keeping a standing Army within the Kingdome in time of Peace unlesse it be with Consent of Parlyament is against Law."
Clauses 2 to 7 deal with Service Courts. In particular, Clause 2 amends the Constitution of the Court Martial - see Clause 2 and Schedule 1.
Clause 7 (Concurrent jurisdiction) is considered in more detail below.
Clause 8 seeks to further incorporate the Armed Forces Covenant into law. This was a pledge in the Conservative Party's 2019 election manifesto.
ConservativeManifesto2019.pdf (cpa.org.uk)
Clause 12 - this creates a new Tri-service Serious Crimes Unit and a new post of Provost Marshal for Serious Crime.
This arose as a result of the Henriques Review into service policing but, as noted by the Centre for Military Justice, the government has NOT actioned all the 64 recommendations made by Henriques though recommendations not requiring legislation may be implemented administratively.
- https://centreformilitaryjustice.org.uk/latest-developments-on-the-armed-forces-bill/
The Henriques Review did not report until October 2021 and the government introduced amendments to the Bill when it had reached the House of Lords. (The Bill had its first reading in the Lords in July 2021).
Clause 19 - amends section 164 of the Policing and Crime Act 2017 so that posthumous pardons are granted for some abolished service offences which existed under older legislation - e.g. section 41 of the Army Discipline and Regulation Act 1879.
This is not the first time that posthumous pardons have been granted by legislation - see Armed Forces Act 2006 section 359 in relation to death sentences imposed during World War 1 for a considerable range of military offences.
Clause 7 Concurrent jurisdiction - This is one of the more controversial aspects of the Bill.
A Lords amendment -
The clause is concerned with whether a person subject to service law is to be tried by civilian court or by the Court Martial in cases where certain alleged serious offences took place in the UK.
The Clause requires the Director of Service Prosecutions and the Director of Public Prosecutions to agree a protocol regarding this concurrent jurisdiction.
The House of Lords brought forward an amendment aimed at creating a presumption that certain serious offences (if committed in the UK) would be tried by the civilian courts. They would only be tried by the Court Martial if the Attorney General consented for reasons of specific naval or military complexity involving the service.
The Lords amendment can be seen at -
https://bills.parliament.uk/publications/44198/documents/1103
This amendment was broadly in line with a recommendation of the House of Commons Defence Committee in a report of 12 July 2021 - Protecting those who protect us ...
The government disagreed with this and stated that "a presumption in favour of the offences in question being heard in the civilian courts is not necessary or justified."
In a debate held on 6 December 2021, the House of Commons considered the Lords amendment but voted (302 to 221) not to support it.
Background to the rejected amendment -
Reasons for the proposed presumption were noted in the debate by several MPs including Sir Robert Neill MP (Chair of the Justice Select Committee).
Sir Robert said - "... It is pretty clear that, with the best will in the world, the service prosecution system, precisely because of the small numbers that go through it, will struggle ever to have the level of expertise required to deal with what in the civilian world would be regarded as RASSO—rape and serious sexual offences—cases. The CPS has specialist Crown prosecutors and specialist counsel. Cases are tried by ticketed circuit or High Court judges, who are specifically authorised to try cases of such gravity, where particular sensitivity is required with witnesses. The criminal procedure rules have a host of safeguards—both before and in the course of a trial—to ensure that complainants in the system are treated with the sensitivity that the nature of such a case should involve."
The Centre for Military Justice has commented that the presumption was a "clear and unequivocal recommendation of the Lyons Review of 2020 - (a review of the Service Justice System) and the Defence Committee Inquiry on Women in the Armed Forces.
"Judge Lyons and the former Chief Constable of Merseyside Sir Jon Murphy spent more than two years looking at this issue and delivered a detailed and well-evidenced report outlining why murder, manslaughter, rape, serious sexual assault, domestic and child abuse in the UK should be handled in the civilian justice system. The Defence Committee, having heard from more than 4000 directly affected women, endorsed that recommendation."
However, the Sir Richard Henriques’ Review Report on strengthening the Service Justice System - GOV.UK (www.gov.uk) dismissed the recommendation.
At para 7.4.4 of his report, Sir Richard stated - "I also agree with the decision to retain concurrent jurisdiction for cases of murder, manslaughter and rape. A significant number of cases involve conduct probative of guilt both within and outside the jurisdiction of UK Courts, justifying a single all-inclusive trial. Further, I was unable to comprehend the choice of crimes to be excluded. Many other very serious crimes might have been considered if competence of the process was in question."
Sexual Offences -
Serious concerns exist especially in relation to the handling of serious sexual offences alleged to have been committed by service personnel.
Writing in The Guardian 9 December, Stephanie Peacock MP (Junior Shadow Defence Minister) commented that whilst Ministers continue to claim the the military's justice system is capable of dealing with all offences, the reality is that many servicewomen are scared to even report sexual assault for fear of the complaint being mishandled or affecting their job prospects.
In similar vein, the Centre for Military Justice noted that Parliament had a once-in-a-generation opportunity to do the right thing for sexual assault victims in the military. See also this further article published by the Centre.
The Centre is strongly of the view that the presumption of trial by civilian court ought to have been enacted.
Note 31 December 2021 - The Bill received Royal Assent and became the Armed Forces Act 2021 (legislation.gov.uk)
12 December 2021
Links:
The Armed Forces Bill 2019 - 2021 - House of Commons Library (parliament.uk)
Wigston Report 15 July 2019 - Wigston Review into inappropriate behaviours - GOV.UK (www.gov.uk)
27 February 2020 - Service Justice System Review - reports by His Honour Shaun Lyons, a retired senior Crown Court judge, and the former Chief Constable for Merseyside, Sir Jon Murphy
12 July 2021 - Defence Committee Inquiry on Women in the Armed Forces.
21 October 2021 - Sir Richard Henriques’ Review Report on strengthening the Service Justice System - GOV.UK (www.gov.uk)
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