Judicial review of the Ministry of Defence's policy on service personnel contacting the media or Parliament
The CMJ is acting for three claimants that are challenging the MoD’s policy governing service personnel’s contact with the media or with Parliament.
The claimants are three service women that wish to speak out about sexual assault, sexual harassment, sexism and racism. The policy prevents them from doing so without first seeking the consent of the very institution they wish to criticise.
In this way, the policy amounts to a violation of their right to freedom of expression.
A blog and some press coverage of the case can be accessed here:
Alicia was the victim of a serious sexual assault in 2015. It was investigated by the service police, prosecuted by the Service Prosecuting Authority (SPA) and went to Court Martial. The case collapsed following serious failures on the part of the SPA prosecutor. It turned out that the prosecutor was the same prosecutor that had badly mishandled the case of the late Cpl Anne-Marie Ellement years before and which had, the Ellement family had been assured, resulted in important changes being made to the way such cases would be handled in the future. The CMJ acted for Alicia in her civil claim against the SPA, on the basis that her right to a competent and thorough investigation (including prosecution) of her allegation of sexual assault, as protected by Article 3 of the European Convention on Human Rights (the Human Rights Act) had been violated. The claim settled out of court in 2020. The Ellement family supported Alicia in bringing the claim and they have worked together to highlight the wider failures it revealed. Alicia’s experiences are yet further evidence of the need for fundamental reform to the way in which the military handles sexual assault cases. The Ellement family and Alicia are calling for all such cases, where they are alleged to have happened in the UK, to be handled by the civilian justice system.
Judicial review brought by three rape survivors
The Centre for Military Justice acted for three women who reported being raped while serving. Their cases were handled in the Service Justice System and were not investigated by civilian police, handled by the CPS or sent to Crown Court. They challenged the handling of these cases inside the Armed Forces and, in particular, the MoD’s recent rejection of a recommendation by a senior retired judge and former chief constable that all cases of rape should be handed over to civilian authorities.
The women relied on the Human Rights Act and the Equality Act.
In light of the judicial review, the Secretary of State said in June 2020 that he would give ‘fresh consideration’ to the matter.
Following that re-consideration, which took place over the summer and autumn of 2020, the Secretary of State determined that the matter of jurisdiction should now be placed on a statutory footing and would now be included within the Armed Forces Bill. He also agreed to review all of the internal policies and protocols governing the handling of sexual offences. The litigants insisted that a fresh Defence Instruction Notice (DIN) should be issued that would require all service personnel to be informed of their right to report any matter to the civilian police. This was initially refused by the Secretary of State, however upon the litigants’ refusal to agree a consent order in the case, the Secretary of State agreed to issue a new DIN.
The judicial review was settled on the basis that the Secretary of State agreed to place the matter before Parliament (which subsequently happened when the Armed Forces Bill was published (see Clause 7)), to consult with the public, and to review all the internal policies on the handling of sexual offences.
Lance Corporal Bernard Mongan
L/Cpl Bernard Mongan’s body was found in his room at Catterick Garrison at the end of January 2020.
His body had lain in his room, undiscovered, for 3 weeks before he was found. Bernie had been badly assaulted by two fellow soldiers at the end of 2018, and a police investigation was still ongoing when he died. Bernie told his wife that he was being bullied. A Service Inquiry reported to the family in July 2021 and was reported here: https://www.bbc.co.uk/news/uk-57791039 and here: https://www.mirror.co.uk/news/uk-news/bullied-soldier-who-lay-dead-24506635
The report says that “failings in the proper management of personnel led to the delay in the discovery of L/Cpl Mongan”. The report also states that Bernie’s complaints of bullying and concerns about his welfare had not been properly investigated or passed on. The panel which carried out the inquiry concluded that its report “makes for sobering reading”.
Because Bernie was left for so long, the family do not have a cause of death and the Coroner has opened an inquest.
The family has many questions about how Bernie died, whether the bullying or assault had anything to do with his death and how it was that he was left in his room on barracks, alone, for so long, with no-one in the Army apparently noticing or reporting him as missing.
A serving soldier who was the victim of sexual assault threatened judicial review proceedings against the MoD for its failure to institute a system of independent oversight of the Service Police, equivalent to the civilian system of police oversight. As a consequence of her judicial review, the MoD agreed to conduct a review of the system of service police oversight, the outcome of which was published in February 2020. The MoD states that it now accepts in principle the need for independent oversight of service policing and will consider the review’s proposals (for the creation of a ‘niche’ body) in more detail. Our blog on the review’s outcome can be found under News, above, dated 28 February 2020.
A serving soldier was the victim of a sexual assault. She threatened judicial review proceedings against the MoD, challenging the statutory power of a Commanding Officer to investigate for him/herself an allegation of sexual assault and the exclusion of sexual assault from the list of alleged crimes that had to be referred to the (service) police. This issue had been raised with the MoD by the families of the late Cpl Anne-Marie Ellement and the late Pte Cheryl James but had not resulted in the requested changes to the legislation. Following her letter before action, the MoD finally agreed to amend the legislation and it is now compulsory for all commanding officers to refer all allegations of sexual assault to the Service Police.
A former sailor, forced out of the Royal Navy because of his sexuality in 1995, was stripped of his Long Service and Good Conduct Medal and his Good Conduct Badges. Now elderly and in poor health, he asked to have them restored. Notwithstanding the lifting of the ban on LGBT people serving in the Armed Forces, the MoD refused. Judicial review proceedings were brought following which the MoD agreed to return the badges and medal, and to bring in a new policy which would allow other LGBT former service personnel to apply to have their medals restored. You can see more about his story on this BBC article
Joe is now working closely with the CMJ to ensure the promised policy is finalised as soon as possible so that other veterans may benefit from it. The CMJ is working with our partners to explore whether there are other, additional ways the MoD can support its LGBT veterans.
A soldier, Anna, reported a rape by a fellow male soldier but, following what she considered to be an inadequate service police investigation, her alleged assailant was not charged by the Service Prosecution Authority. After the SPA confirmed that it was not going to charge the alleged assailant, Anna’s Commanding Officer informed her that she would now be investigated under the Army’s own internal administrative procedures (known as ‘AGAI’) to determine if she had breached the so-called ‘Service Test’. This meant that she would have to undergo further interviews, investigation and other processes arising from the alleged rape and on the basis that her own conduct was now being called into question.
A soldier, Sarah, reported being sexually assaulted by a male soldier in her unit. The Service Police did not conduct an adequate investigation in several respects. This included the proposal, by the Royal Military Police, that Sarah agree to the alleged assailant admitting to the lesser charge of common assault, rather than the sexual assault with which he had been charged. Sarah lodged a formal complaint about various aspects of the conduct of the Service Police. While an apology was eventually offered and some organisational changes were made, the Professional Standards Unit declined to take any further action on the basis that the principle RMP soldier responsible had by then left the unit. The RMP failures in this case led, in the client’s firm opinion, to the male soldier being acquitted at Court Martial. When he acquitted the defendant, the Judge Advocate made very critical remarks about the RMP.
A soldier, Mary, reported being raped by a male soldier in her chain of command. The soldier she accused was acquitted at trial. However, Mary wanted to lodge a service complaint concerning the sustained sexual harassment she had suffered at the hands of the soldier before the alleged assault and the way in which her chain of command had treated her after her report of rape and while she waited for her case to come to court. Her service complaint was dismissed at the first stage but upheld almost entirely on appeal. A formal apology was offered, compensation was paid and it was accepted that the response of the Army to the entire situation had cost Mary her extremely promising career.