Baroness Bennett of Manor Castle (GP)

My Lords, it is a great pleasure to follow the noble Baroness, Lady Brinton, and to thank her for supporting my Amendment 55. I am going to concentrate on that amendment, because this is a carefully worked attempt to deal with an issue that the noble Baroness has already clearly outlined—criminal behaviour by US service people in the UK that is not being appropriately dealt with. There are more than 12,000 US military personnel stationed in the United Kingdom, operating from at least 15 bases and facilities. These are people living, working and socialising in communities across the UK. They will and do commit offences. My amendment is focused particularly on sexual offences, but of course the noble Baroness referred to the disgraceful, awful death of Harry Dunn, and the fact that his family had to campaign against the entire US Government to try to achieve some kind of justice. However, that is not the focus of my amendment. I also note that, given the current state of the US today, these bases are coming under increasing public attention. However, that is not the subject of this amendment either. I spoke on Second Reading and said that I was going to table this amendment. In doing so, I have to thank the Guardian journalists—and, indeed, editors—who have put a great deal of resources into uncovering this situation. I should perhaps declare my former position as editor of the Guardian Weekly, but I am not influenced by that. I also want to thank the Centre for Military Justice for its advice and assistance in developing the amendment that I put before your Lordships’ Committee today. The noble Baroness, Lady Brinton, chose not to name any of the people concerned, but—given that she bravely chose to waive her own anonymity and speak to the Guardian—I am going to put forward the name of Sarah Steele, because she wanted to speak publicly about what she went through. Ms Steele went through an ordeal that was a result of the failure of UK processes. This was an incident, an attack, that took place on UK soil away from a US military base and while the service member was off duty. Yet the US military police quickly took over the investigation and the whole proceeding subsequently took place through the US military justice system, as the noble Baroness said. Indeed, it was held at RAF Lakenheath, the largest US military base in the UK. Ms Steele described this as “confronting … frustrating and distressing”. The procedures she found were “archaic and bizarre”. Think about what she experienced: the procedure was held before a military courtroom, and at points during her testimony fighter jets were taking off just a few hundred metres from where she was speaking. She described the experience as feeling as if she was in an alternative world. In Ms Steele’s case the US court martial ultimately convicted the defendant of strangling an intimate partner but acquitted him of the sexual assault charge. He received a sentence of six months in a corrections facility, and the conviction was subject to automatic appeal. You might have views about that—I certainly do—but that is not directly what this amendment is about. As the noble Baroness said, this is one case on which we have a great deal of detail. I will not go through the others she has already outlined. But I will just mention one of the cases in which the victim recounted that the court martial process took two years, she was forced to drop out of a midwifery degree as a result, and she had to give evidence in the same room as the man she had accused, without the protections that victims would normally have in a UK court. What is the current legal position here? How have we got to this point? My understanding is that the NATO Status of Forces Agreement provides a framework for determining which country has the primary right to exercise jurisdiction. Where the offence is punishable under the laws of both countries, the sending state has the primary right in certain specified circumstances. These include where the offence is solely against the security or property of the sending state, where it is solely against another member of the force or their civilian component or dependant, or where it arises out of an act done in performance of official duty. However, where an alleged sexual offence is committed against a civilian who has no connection with the visiting force, and the alleged offence does not arise out of an act done in the performance of official duty, the receiving state, i.e. the UK, has the primary right and jurisdiction. So, the question is not about that; the question is who decides that the UK does not use that jurisdiction, which is where this amendment comes in. In the UK, we have no process for how the decision should be made, what criteria should apply or what role the victim should have; nor, according to the Centre for Military Justice, is there an equivalent statutory framework governing the transfer of jurisdiction to a foreign military justice system. I want to highlight that we have recognised within our own justice arrangements that decisions about serious sexual offences require appropriate safeguards. Where there is a question of whether a serious offence should be dealt with by a civilian or service justice within the UK, there is now a protocol between the DPP and the Director of Service Prosecutions. It provides for senior level consideration of jurisdiction in rape and sexual assault cases, ordinarily treats offences against civilians as matters for the civilian courts, and provides for the victim’s views to be sought. But there is no equivalent safeguard where a foreign military person is involved. This amendment fixes that situation. It adds a new Section 3A to the Visiting Forces Act 1952, which would create a clear presumption that where a member of the visiting forces is accused of a qualifying sexual offence against someone with no connection to that force, the case should be investigated by UK police and heard in a UK court. It provides for exceptions—though I find it hard to imagine where there would be exceptions, but that is the way the law works. It also provides what specific matters the prosecutor should consider: “The gravity of the alleged offence … the connection of the alleged victim and of the offence with the United Kingdom … the capacity of the sending country’s arrangements”— that is particularly important, given what we have heard about all of this— “including its treatment of victims … any matters relied on in support of a request for a waiver, and … any representations … made … by the alleged victim”. Furthermore, “the decision and the reasons for it” would have to be recorded “in writing and, so far as reasonably practicable”, notified to the victim. It would make a huge difference to all the cases we have been talking about tonight, and it would mean that a person who has already taken the difficult step of reporting an alleged sexual offence would not have to adjust to a justice system they never expected to encounter. Here, I will put a direct question to the Minister. In the current arrangements, there is an exception to question of duty offences. I hope the Minister agrees with me that a qualifying sexual offence would never be capable of being characterised as arising out of and in the course of official military duty. This and the previous Government have had a very good record of addressing issues of sexual violence in conflict, and it is important that that is made clear, perhaps in writing if not now. I have another question for the Minister. As a starting point, surely the argument has been made, but do the Government accept that there is currently a gap in the process for deciding whether the United Kingdom should relinquish its primary jurisdiction in serious sexual offence cases involving visiting forces? This amendment is ultimately about confidence in our justice system and the public’s trust in having visiting military forces on our soil. In closing, I stress that this is not an issue I will allow to slip lightly. We owe it to all the victims we have already heard from—and others we do not know about, but who almost certainly exist—that this be dealt with in the Bill. This is clearly the Bill to deal with this situation now that it has come to light. We will discuss the details and the ways in which we might combine the amendments in this group, or look at how they fit in detail, but something has to be done about this utterly unacceptable current situation.