Thursday, 8 September 2011

Amendment proposed for he Armed Forces Bill, diversion and assessment

Amendment 24
Moved by Baroness Finlay of Llandaff
24: After Clause 11, insert the following new Clause-
"Procedure on arrest for substance abuse, violence against the person or damage to property

After section 74 of AFA 2006 insert-
"Procedure on arrest for substance abuse, violence against the person or damage to property
(1) If a person subject to service law-
(a) has been arrested on suspicion of committing an offence,
(b) would be the person's first offence, and
(c) the offence is related to substance abuse, violence against a person or damage to property,
prior to any decision as to charge, the prosecuting authority shall consider diverting the person for specialist services to assist with substance abuse and mental health treatment either in the community or through existing services in Her Majesty's armed forces.
(2) The prosecuting authority shall also commission and obtain a psychiatric assessment of the arrested person in order to assess that person's needs and manage that person safely.
(3) No decision to charge the arrested person shall be made at the time of arrest and such a decision shall take place only when the prosecuting authority has consulted the specialist services involved and reviewed the psychiatric assessment.
(4) The above conditions do not apply unless, at the time of arrest, the arrested person was serving in Her Majesty's armed forces.""
Baroness Finlay of Llandaff: My Lords, I know that the hour is late and I am grateful to the Committee for allowing me to move this amendment at this time. The basis of the amendment is to identify people serving in the Armed Forces who commit offences while fuelled by drugs or alcohol, and who therefore have related underlying mental health problems. There is a duty of care on the Ministry of Defence to afford special consideration to those people whose alcohol abuse or drug treatment has come as a result of their experience and to put them into appropriate programmes as soon as possible, preferably before any charging decision is made.
In civilian life, at the discretion of the police or the Crown Prosecution Service, there is the opportunity to permit a defendant to go into a treatment programme in the community rather than go before the magistrate and get a criminal record. The idea behind this amendment is that the Armed Forces covenant, which is the basis behind much of what we have been addressing today and is so important, in no way could inadvertently disadvantage someone in the forces.
The way in which military court services operate means that in-depth access to the defendant's circumstances sometimes may not come to light. Therefore, mental health and substance misuse issues can be missed and could even be exacerbated with disastrous consequences in the long term. Sadly, there are stories of really frenzied attacks and incidents that have been fuelled particularly by alcohol. An SAS veteran, Chris Ryan, pointed out that it is often 10 or 15 years after people have left the Armed Forces that they reach their lowest point.
The underlying premise of the amendment is that if you can pick people up early and treat the root cause when they are exhibiting the early symptoms of drug and alcohol misuse, you would prevent a long-term problem later. The Armed Forces operate a parallel structure of community mental health teams, so the infrastructure is in place. In his report of 2010, Fighting Fit, Dr Andrew Murrison MP noted that the linked issue of alcohol abuse is significantly associated with service in the Armed Forces and there is evidence that it is more common among combat veterans. This is not a small problem-it is one that needs to be addressed. It has been estimated that up to four out of five cases where military personnel have been involved with criminal activity may be fuelled by alcohol and drugs, and that they would not have committed the offences if it had not been for the excessive use of these substances.
There is an emerging problem in Afghanistan where heroin misuse is becoming particularly linked to criminal activity among serving personnel. There are community psychiatric nurses and consultant psychiatrists on hand in Afghanistan to deal with this, and there are very good outcomes when they deal with the problems immediately, in contrast to them becoming chronic problems. The US has learned lessons from its experience in Vietnam with drug abuse in particular and has realised that punishment does not actually work because you put these people into civilian life, but that early intervention is particularly helpful. One of the problems is that if people are discharged out into civilian life and do not have the infrastructure support they need, the outbursts and consequent violence often associated with them can injure and traumatise or even possibly kill people who are closest to the person themselves.
It has also been estimated that 25 per cent of all home repossessions are from people with a service background, and there is a suggestion that that may be linked to higher alcohol consumption and spending a lot of money on alcohol, because alcohol consumption is extremely expensive.
The idea behind this amendment is to reflect the reality that we are asking a lot from our troops-we are asking them to risk life and limb-and that some of them will find that the way they cope with the trauma they have experienced is to try to numb themselves using drugs or alcohol, and that when they are really fuelled up like that they then go and commit offences. Unless we intervene rapidly and pick them up we may be creating a lifetime of dependency and problems rather than intervening early. I beg to move.

Lord De Mauley: My Lords, Amendment 24, moved by the noble Baroness, Lady Finlay, would apply whenever a member of the Armed Forces was arrested for a first offence related to alcohol or unlawful drugs, violence or damage to property. Before it could charge the accused, the service prosecuting authority would have to consult specialist substance abuse and mental health services, and to obtain and take into account a psychiatric report on the accused. The importance of the psychological state of an offender and the appropriateness in some cases of a specialist social or mental health approach instead of prosecution is well understood in both the civilian and service justice systems.
When a case is serious enough to go to the service prosecuting authority, it must consider the evidence available as to whether the suspect had the necessary intent to commit the offence under consideration. It must also consider whether the public and service interests-the interests of justice-make a prosecution appropriate. It is also the responsibility of the service prosecuting authority to keep these issues under review the accused's state of mind and whether continued proceedings are appropriate. The service prosecuting authority is therefore able to review in context its assessment of what the interests of justice require.
It is also the service prosecuting authority's duty to disclose to the defence any facts it becomes aware of which go to mitigate the seriousness of the alleged offence. Where it seems to the service prosecuting authority that the interests of justice are not best served by prosecution, it can, and often does, go back to the chain of command to discuss how the chain of command can help to bring the suspect into contact with specialist services. This often forms part of a discussion on whether administrative action might be more appropriate than prosecution.
In court, in an extreme case, the defence may seek a decision that the accused is unfit to plead. There are special statutory provisions under which the judge advocate will consider and decide such applications. Where an accused is convicted, there are statutory provisions under the Criminal Justice Act 2003 for medical reports and pre-sentence reports. The court must generally obtain and consider a medical report before passing a custodial sentence where the offender appears to be mentally disordered. This is a report on the offender's mental condition made by a specialist medical practitioner. A pre-sentence report must generally be obtained by a court whenever it is considering a custodial sentence for an offender. The aim of such reports is to assist the court in deciding the most suitable method of dealing with the offender. It is made by the probation service and must, of course, be disclosed to the offender. The same requirements apply in both the service and civilian justice systems.
I believe that the current role of the service prosecuting authority in deciding whether to charge is the right one. It should, and does, consider what the interests of justice require, and in particular whether prosecution is appropriate. It does so by taking into account the evidence before it. However, I hope the noble Baroness will accept that it would be going too far to require the service prosecution authority to consult specialist services and obtain a psychiatric report in every case covered by the amendment. To do so would confuse the role of prosecutor and the court. It is right for the prosecutor to have some discretion in whether to prosecute and to respond to what the interests of justice plainly require. However, there is an important boundary to be maintained between that role and the proposed role requiring the prosecution to obtain and weigh expert evidence in every case before it can bring a charge.
Furthermore, the requirement for a psychiatric assessment in all the cases covered by the amendment would be excessive, and even unfair to the suspect. It would involve a delay before a decision was made on bringing a charge even in the simplest case. It would appear to expect, or perhaps require, the suspect to submit to psychiatric assessment even where he or she was not raising any psychological issue and there was no reason to suppose that there was such an issue. In some cases it would be impossible to complete this process within the very tight statutory limits that apply in the service and civilian justice systems to keeping a person in custody before charge. In other words, it would go well beyond what the needs of a fair and efficient system of justice require.
Lastly, it would mean that the procedures before charge, and the role of the service prosecuting authority, were very substantially different from those in the civilian system. We recognise the importance of the psychological and social background of an offender, but I do not consider that there are grounds for such different approaches between the service and civilian justice systems. Therefore, I ask the noble Baroness to withdraw the amendment.
Baroness Finlay of Llandaff: I am most grateful to the Minister for his detailed response to my amendment. I had hoped that the words "shall consider" in the first part of the amendment did not create an obligation.

However, in the light of what he has said, I can see that I do not have the right wording. I wish to read what he has said, possibly discuss the matter with him outside the Committee and then consider what to do. In the mean time, I beg leave to withdraw the amendment.
Amendment 24 withdrawn.

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