Keeping it in the family: the Ministry of Defence’s response to the Service Justice System Review

In 2017, the Ministry of Defence (MoD) asked a retired senior Crown Court judge, HHJ Lyons, supported by the former Chief Constable of Merseyside, Sir Jon Murphy, to conduct a review of the Service Justice System.  This review produced 3 large reports which were published yesterday along with the MoD’s response to it.

While there is some good stuff in there, the MoD’s response to the Review on the really important issues, is dreadfully disappointing.

There were two fundamental areas on which we had hoped to see real change.

First of all, and most importantly, how cases of rape, serious sexual assault, domestic abuse and child abuse should be dealt with.

The Centre for Military Justice believes that these kinds of offences should always be dealt with by civilian authorities, not military (‘service’) ones. Since the deaths at Deepcut, it has been accepted that sudden deaths on military property should always be investigated by civilian not military police. If that principle is accepted for those kinds of serious cases, why not rape? Why not child abuse? The investigation of these kinds of offences does not need the investigating officer to have military experience. On the contrary, from the cases we have dealt with, and from our conversations with people across the forces, the service police are insufficiently prepared and experienced to handle such cases. They should be handled by civilian police, prosecuted by the CPS and sent to Crown Court.

The Review agreed and recommended that these offences should be dealt with in the civilian system. The Review also noted the very significant difference in outcomes for rape cases in the military system when compared to the civilian system. In 2017, out of 47 rape cases that got to trial at court martial, only 2 resulted in a conviction. This is a conviction rate of just 4%. In the Crown Court, it is in the mid to high 50% range, according to the CPS. Even taking into account the Review’s cautionary remarks about what weight to give these statistics, this difference is staggering and shows that victims of rape in the armed forces are very unlikely to get justice. There is no need to tell the women we support this – they have first-hand experience of it.

Notwithstanding this strong recommendation, the MoD has unequivocally rejected it. The MoD apparently ‘does not accept the Review’s recommendations on legislative changes to the jurisdiction for the offences of … rape and … sexual assault with penetration’.  The MoD reassures us that the Armed Forces will only want to deal with those criminal cases ‘where there are good reasons for doing so’. But read on and you see what that means: where both the accused and victim are serving, the military will take primacy and keep it in-house. So anyone who is the victim of a sexual offence while serving by another serving person can expect to have their case investigated by the service police, prosecuted by Army lawyers and heard at Court Martial.

Secondly, we wanted to see the service (military) police become subject to the same independent oversight regime as the civilian police. The Independent Office of Police Conduct (IOPC) oversees civilian police complaints but has no power over the service police. The Service Complaints Ombudsman does not have the powers or resources to fulfil this function either. It leaves the service police marking their own homework. It means most service personnel who want to complain about the service police will be realistically advised: there is little point.

The Review agreed that independent oversight of the service police and Commanding Officers exercising investigative powers was sorely lacking. However, although the Review acknowledges that the IOPC is best positioned to take on the role (notwithstanding some obstacles which can be overcome), it reserves its recommendation for a ‘niche’ body to be created, funded by and policy-led by the MoD, albeit at arm’s length.

It remains to be seen what is meant by ‘policy-led by the MoD’ but alarm bells are ringing.  The MoD says that it accepts the need for independent oversight in principle and is considering the Review’s recommendations. The proposal is certainly a step in the right direction – better a ‘niche’ body than no body. But it falls short of what we had hoped to see.

There is a huge amount in this review (which in total comes to 439 pages) and reading it carefully and paying fair attention to the huge amount of work that has clearly gone into it, and to the MoDs response, will take time.  It seems that there is a good deal of emphasis on improving services to victims of crime in the forces and to the better recording (and, we hope, publication) of data around offending in the forces. That is strongly to be welcomed.

However, these are important but secondary issues if the fundamentals are still flawed. Serious criminal offences in the Armed Forces should be dealt with by civilian, not service authorities. That is not a hard concept to grasp. There will be cases when this may not be possible or where there are challenges to be overcome and we don’t underestimate that – but the principle is sound.  It is deeply regrettable that the MoD has already appeared to reject it.