ARMED FORCES DISCIPLINE DEBATE – 17 February 2000
Dr Julian Lewis: There is a memorable moment in the film "Casablanca" when Humphrey Bogart, the proprietor of Rick's Cafe, loses a friend with black market connections and finds that his ex-girlfriend – played by Ingrid Bergman – has replaced him. He says, "One out, one in." I congratulate the Under-Secretary of State for Defence, the hon. Member for Kirkcaldy (Dr Moonie), on his appointment in replacement of the hon. Member for Liverpool, Walton (Mr Kilfoyle). It is easy to see that the Government are determined that a "substantial body of evidence" will always be present in the discharge of the duties associated with that office.
At first glance, the case that I want to bring to the House's attention is reminiscent of the one involving the Admiralty and the Archer-Shee family, in which a young cadet at Osborne, George Archer-Shee, was alleged to have stolen a five-shilling postal order. That case was the subject of a memorable book by Rodney Bennett, and was also dramatised by Terence Rattigan as "The Winslow Boy". The young man was eventually cleared of the theft, but the charge almost certainly cost him his life. Having lost his naval career, George Archer-Shee enlisted in the Army at the outbreak of the first world war and went to the western front, where he died leading his platoon against the enemy. Had he remained in the Navy, the chances are that he would have survived.
In reality, the case that I want to bring to the House's attention is perhaps closer to the plot of "Les Misérables". It arises from a report in the Southern Daily Echo on 29 January, which bore the headline "Army disgrace led to suicide". The report states:
"A devastated Hampshire soldier gassed himself in his car after he was kicked out of the Army for asking new recruits to pay for swimming lessons.
"Father-of-two Corporal Gavin Henry, 33, of Kingsley Green, Havant" –
my hon. Friend the Member for Havant (Mr Willetts) has given me his blessing in raising this case of his late constituent –
"kissed his children goodbye and drove to the remote Quagg Farm, near Stockbridge, where he committed suicide.
"An inquest at Winchester heard he had been court-martialled and discharged after demanding money from new recruits when he took them to a local swimming pool, because the military baths were shut.
"Recording a suicide verdict, coroner Graham Long said: `Gavin obviously enjoyed life as a soldier a great deal. He must have been devastated when court martialled and discharged. As a result of his discharge from the Army his marriage came under strain and his wife divorced him.
"`The divorce was not the cause of his final act but may have been the final straw'."
As to the relevance of that incident to the Bill, I refer to the previous changes to military discipline law as a consequence of a European Court of Human Rights finding.
The Select Committee's report states at paragraph 16:
"At present, disciplinary cases may be heard in two ways: summarily or by court-martial. Cases dealt with summarily are heard by the accused's Commanding Officer. Courts-martial were previously reserved for more serious offences, but substantial changes were made by the Armed Forces Act 1996 to reflect the provisions of the ECHR."
Later, the report notes – in relation to the Army – possible concern that the 1996 Act appears to have led to the proportion of cases dealt with by court martial rising, between 1996 and 1999, from 10 per cent. to 20 per cent. Although my inquiries have been too recent to allow investigation of the full details, I suspect that Corporal Henry's case would in former times have been dealt with summarily. Superficially, the ECHR's ruling was applied to give greater rights to a person facing discipline in the armed forces, but this ended up as badly as possible for Corporal Henry.
I wrote to General Sir Roger Wheeler, Chief of the General Staff, expressing my concern. I wrote of my shock at reading the newspaper story about the suicide of Corporal Henry and explained that although he was not one of my constituents, anyone with a close interest in the services must feel deep concern about a person's career being ended because, according to the story, he ordered new recruits to pay for the use of a swimming pool when the military baths were shut – apparently culminating in a chain of events leading to the young man's self-destruction. I put it to the Chief of the General Staff that to be court martialled and discharged in those circumstances was grossly disproportionate to the offence.
I knew from a previous occasion that General Wheeler is an admirably prompt correspondent. He replied by return, saying that the matter would be investigated. Just today, I had faxed to me a response dated 11 February from M.A. Piper, deputy chief executive at Headquarters, Army Training and Recruiting Agency in Pewsey, Wiltshire. He states:
"As in many such instances the report in the newspaper falls well short of the full facts. Henry was found guilty in 1997 by District Court Martial of 14 counts of theft."
That sounds bad, but those counts all concern the same offence relating to the swimming baths incident – and, as I strongly suspect that they all relate to the same action taken in respect of 14 people, hon. Members will understand why I continue to be concerned. The deputy chief executive continues:
"In brief, he had asked the recruits in his charge to pay for entrance to the local swimming baths, used when the military facilities at the Army Training Regiment (ATR) at Lichfield were closed, and then fraudulently obtained repayment of the sums involved from the Unit. He pleaded guilty to all the charges."
That is, of course, he pleaded guilty 14 times to the same charge relating to each of the 14 cadets.
Mr Deputy Speaker (Mr Michael J. Martin): Order. The hon. Gentleman is giving us a detailed individual case, but the debate is on the Second Reading of a Bill. He may wish to come to the point. How does what he is saying relate to the Bill? I am aware that he is discussing the case of a man who was court martialled, but to go into such detail is, to put it no stronger, not usual.
Dr Lewis: Thank you, Mr Deputy Speaker.
My problem is that the Bill seems, on the face of it, to be a lawyer's measure, but its application to the armed forces will translate in reality into cases such as the one to which I have referred. Those who oppose the increasing intrusion of the European Convention on Human Rights must show how something done with the best of intentions – the Bill – may translate into individual cases with fatal results. I shall bear your strictures in mind, Mr Deputy Speaker, but I have almost finished the detail. I promise not to overburden the House.
The letter continues:
"The Assistant Judge Advocate General, who was asked to review the decision of the Court-Martial stated that although the sum of money involved was small (a total of £16)" –
less than £1.15 for each offence –
"there was not only a breach of trust involved, but also an abuse of a position of authority. He considered that the sentence reflected a proper balance between the mitigating and aggravating factors. He therefore declined to uphold Henry's petition against the sentence."
That is the end of the detail, Mr Deputy Speaker. We know what the result was. That man lost his career and his marriage. Ultimately, he took his own life. The House may see that my comparison with the plot of Victor Hugo's "Les Misérables" was by no means fanciful.
My hon. Friend the Member for Aldershot (Mr Howarth) talked of the right of the services to be different. I entirely agree with him, and with my hon. Friend the Member for Ruislip-Northwood (Mr Wilkinson), who pointed out the iniquities of the compensation culture that is creeping into society and transferring into the administration of discipline in the armed forces. When Labour Members ask why people in the armed forces should be denied the protection that others have at law in civil society, the answer must be that we must be concerned with how litigious a person is. There is no absolute principle; it is a question of how far litigiousness is allowed in our dealings.
We all know that what happens in America tends to be reflected in Britain a few months or years later. We have all heard of the case of the lady in America who drove into a takeaway McDonalds, purchased a mug of boiling coffee, placed it between her thighs as she drove away, scalded herself, and successfully sued the company for having served a beverage that was dangerously hot. Most people would say that that was something she was entitled to do at law, but that the law was an ass in upholding her claim.
We all know that it is possible to apply the law literally or with common sense; there are no absolutes. The danger of bringing the ECHR directly to bear on individual cases is that it will give perverse results. If I had time to go into the matter more fully, it would be seen that the application of the ECHR in 1996 led to a top-heavy procedure. If the soldier, whose sad circumstances I related, had received summary punishment from his CO – had he chosen to do so rather than opting for a court martial – his case might have had a happier outcome. Although it seemed that the court martial presented a greater opportunity – an extra right – it turned out to his fatal disadvantage.
One of the reasons for my absence from part of the debate was because I was discussing defence developments in the Royal Navy with a recently retired senior officer. I asked him for his views on the case that I have just outlined. He said that in the armed forces one had to allow for different levels of trial and punishment, according to different circumstances – war or peace, deployment on operations or in society back home. He pointed out that a court martial was the last thing that one should have considered in such an offence – or rather 14 offences of £1.14 multiplied.
I appeal to the Government not to regard the measure as purely technical. It is a mistake to discount tried and tested methods of discipline. They may seem to be less just than the whole panoply of law – national law and international law – but they can do more good, be more merciful and, in the long run, be more just for servicemen. They can be better than encouraging servicemen to go down the route of litigation and appeals – an endless process that can sometimes result in a fatal and unnecessary outcome.