Alicia’s case shows the need for urgent reform – these cases must be taken out of the military justice system for good

21st Oct 2020

Today the BBC has reported the case of ‘Alicia’*, whose serious sexual assault case was badly mishandled by the Service Prosecuting Authority (the SPA, the military’s version of the Crown Prosecution Service) and, in particular, by the same senior prosecutor that, years before, had so badly mishandled the case of the late Cpl Anne-Marie Ellement.  A link to the BBC piece is here.

Cpl Anne-Marie Ellement had reported being raped by two of her colleagues in 2009. Following a shoddy Royal Military Police investigation, the SPA cancelled outstanding forensic tests and decided not to charge the suspects, following which Anne-Marie was subjected to rape-related bullying (‘the girl who cried rape’), victim-blaming and, within 23 months, she had taken her own life.  Under a new Director of Service Prosecutions (the head of the SPA), who stated publicly that the decision not to prosecute had been wrong, the family received a formal apology and, following threat of judicial review by the family, efforts were made, years later, to prosecute the 2 soldiers involved. The soldiers were acquitted but the family was assured that lessons would be learned and that the kinds of basic prosecutorial error that had been made in that case would not be repeated.

But in 2017, they were, as Alicia’s case has shown. The same senior SPA prosecutor was permitted to continue to work, it seems, unsupervised and he made similarly basic and profound errors which directly led to the trial of her alleged assailant collapsing at Court Martial.  This prosecutor was someone who would no doubt have been considered within the SPA to be very experienced and he continued to work there for some time after Alicia’s case collapsed – but he showed himself to be severely lacking in important respects and he should never have been left to handle these most difficult and sensitive cases alone and without adequate supervision. Of course, sometimes, mistakes happen – but these serious shortcomings do not at any stage appear to have been addressed either by adequate training or supervision and his supervisors accepted, after the event, that he should never have been permitted to handle Alicia’s case after what happened in the Ellement matter.

Alicia and the Ellement family fear that there will be other serious sexual assault and rape cases that have been mishandled by the SPA. The conviction rate for rape cases at Court Martial is, as the recent Service Justice System Review noted, ‘astonishingly low’.  The problem is, we do not know how many other cases may have been similarly affected by SPA shortcomings. We asked for an independent review of this particular prosecutor’s rape and sexual assault cases, but the SPA refused. We also asked Her Majesty’s Chief Inspector of CPS to conduct an inspection of the SPA’s handling of rape/sexual assault prosecutions generally, but the Chief Inspector diplomatically explained that his hands are tied – his inspectorate can inspect the SPA by invitation only – and it seems he has not been invited. In fact, there has been no independent inspection of the SPA since 2010.

These two cases, years apart but so tragically similar, show so clearly why serious sexual assault and rape cases need to be taken out of the military justice system altogether and handled by civilian police, prosecuted by the CPS and heard in the Crown Court. Parliament simply never meant for incidents like Alicia’s sexual assault, which took place in the UK, to be handled by the military justice system at all – but over the years there have been more and more of these cases, handled by service police and service prosecutors that lack the right experience to give them the best possible chance of a successful outcome.  When you add to the mix similar shortcomings in service policing, what survivor’s fear are old-fashioned, out-dated attitudes on military juries (boards) and appalling rape-myths and attitudes within units and the chain of command towards some victim-survivors, the position is untenable.

Thankfully, Alicia survived – though at times she has said it was touch and go. Anne-Marie did not. Her family were always left with the sense that something good had come from her death because they were assured that lessons had been learned. It has been devastating for them to find out that those assurances appear to have been, in part, misplaced. The Secretary of State for Defence will shortly be providing his formal response to the judicial review proceedings brought by three of our clients to the existing military justice system for handling rape cases.  At the time of writing, we are assured that he is still considering all options. We hope Alicia’s experience will encourage him to do the right thing.

*Not her real name.

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