Latest developments on the Armed Forces Bill

26th Oct 2021

Having allowed the Armed Forces Bill to reach Committee Stage in the Lords unamended, on Thursday last week the Government did two things. It published the Henriques Review into service policing and, supposedly on the basis of that Review, announced some amendments to the Armed Forces Bill.

For a critical appraisal of the Bill generally, please see our briefing, here, which includes a summary for the Lords Committee Stage.  The fundamental concerns we have about the Bill still stand and are not addressed by the Government’s amendments.  Our principal concern (on jurisdiction) would be addressed by Lords amendment no. 5, tabled by Lord Thomas of Gresford, published on Tuesday. We urge the Lords to support that amendment and hope that there will be cross party support for it.

What has changed?

The Henriques Review came about in direct response to the slew of criticism the Government received when it presented its Overseas Operations Bill earlier this year.  Critics of that Bill – including the former Judge Advocate General – pointed out that, though slated to address the problems of repeat investigations into soldiers accused of crimes overseas, the Bill didn’t actually deal with that problem at all, focusing instead upon prosecutions (which, by definition, would post-date an investigation). Critics also pointed out that many of the problems arose from serious failings in the original military police and commanding officer investigations and suggested that the Government’s attentions would be better directed there. So, rather hurriedly and in an effort to answer those obvious criticisms, the Government announced it would invite an independent civilian judge, Judge Henriques, to make recommendations on how we could improve our system of military policing overseas.

So what did Judge Henriques recommend and do the latest amendments to the Armed Forces Bill deliver?

The first thing to say is that neither the Henriques Review or the Government’s amendments deliver what many believe is a much-needed statutory presumption in favour of civilian justice for certain kinds of serious offences in the UK. That was the clear and unequivocal recommendation of the Lyons Review of 2020 (another independent review of the Service Justice System) and the Defence Committee Inquiry on Women in the Armed Forces that reported earlier this summer. Judge Lyons and the former Chief Constable of Merseyside Sir Jon Murphy spent more than two years looking at this issue and delivered a detailed and well-evidenced report outlining why murder, manslaughter, rape, serious sexual assault, domestic and child abuse in the UK should be handled in the civilian justice system.  The Defence Committee, having heard from more than 4000 directly affected women, endorsed that recommendation. Henriques appears to dismiss that recommendation but does not engage in any great detail with the evidence or reasons that lay behind it.  That is very disappointing.

However, Henriques has nonetheless gone on to deliver an extremely thorough and strong report on overseas military policing.  If properly accepted, these would undoubtedly improve the ability of the Armed Forces to address serious crimes overseas. He has made a grand total of 64 recommendations. Not all of them will need primary legislation, but many of them will.

At the moment it looks as though only a tiny number of them have made it into the Armed Forces Bill.

The central recommendation of the Henriques Review that has been seized upon by Government is the creation of a new tri-services Defence Serious Crime Unit (DSCU). The DSCU will apparently have its own Provost Marshal and sit outside of the single services.

However, look more closely and you will see that in fact what Henriques recommended was this:

  1. The DSCU must have a first right of refusal on the handling of all serious crime.
  2. The DSCU must have a civilian deputy Provost Marshal.
  3. The DSCU should have a strategic policing oversight board that includes senior civilians.
  4. Civilian police detectives could be employed to work full time at the DSCU.
  5. The Provost Marshal must have sufficient seniority as compared with the other Provost Marshals.
  6. There should be annual reporting on the work of the DSCU.
  7. The ‘unified career model’ whereby service police and prosecutors are usually only in post for a couple of years before having to move on, should be reviewed for them.
  8. DSCU staff must not fall under the chain of command of the single services for reporting or disciplinary purposes.
  9. The DSCU must have a significant focus on victim care and support.

The Bill does absolutely nothing to implement these recommendations. And the Government has not said if it accepts those that would not need primary legislation. So all we currently have is a proposed DSCU with very little detail on how it will function. It is hugely concerning that it appears to be proposed that the Provost Marshal of the new DSCU will be one, possibly two, ranks below the Provost Marshal of the Army.  There is a real concern that the PM(DSCU) will simply not have the clout to deliver.

This report should make for very uncomfortable reading for the existing Provost Marshals, especially the Provost Marshal (Army). You don’t need to read between the lines to see that Henriques appears to have received considerable resistance to his proposals from the military police and they appear to have been dragged to this point. Henriques has taken the time to go through each of their objections and to answer them comprehensively. The impression is received of the service police branches suffering considerable hurt to their institutional egos.

There is a real concern that the MoD has now offered the bare minimum that it thinks it can get away with, while giving the appearance of listening and responding to its critics.

This hardly amounts to the important ‘cultural change’ that has been called for by Judge Henriques.

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