Director of Service Prosecutions
70. Currently, the three Services each have their
own prosecuting authority. In the Army and the RAF, the head of
the prosecuting authority is also the head of that Service's legal
branch. The Bill will establish a single tri-Service Director
of Service Prosecutions, who will fulfil the prosecuting function
for all three Services.[125]
For the Army and RAF, the present 'double-hatted' link between
the prosecuting authorities and the legal services departments
will be removed under the new provisions. Major General Howell
explained that the move to a single prosecuting authority would
also provide economies of scale.[126]
We recognise the merit of bringing the tri-Service system under
a single prosecuting authority.
71. General Walker said that it would be preferable
if the Director of Service Prosecutions had appropriate military
experience.[127] He
told us that:
You do need to have somebody who knows about
the heat, the stress, the pressure, the stones and the bombs being
thrown at you in modern circumstances or the confined nature of
your activities in the back of an armoured vehicle or that rather
lonely activity that goes on up in the sky above somewhere where
you are flying your aeroplane or on board a ship. Somebody needs
that as a context, I think, to make all these sorts of judgments.[128]
The three Service Chiefs also supported the Director
of Service Prosecutions having military experience. Admiral Sir
Jonathon Band, the First Sea Lord, told us that:
We all agree there is something about military
operations which is different and therefore we need our own Act
and our own context, and therefore there is a consistency in that
the court martial can be and should be slightly different from
a county court case, and I think to have a prosecuting service
run by people who do not know the context in which this is all
enacted is just counter-intuitive.[129]
72. We asked MoD officials about the desirability
of requiring the Director of Service Prosecutions to have military
experience. Mrs Jones, head of the Bill team, explained the difficulties
in framing a description of military experience that could be
put into the Bill.[130]
She told us that:
Our difficulty with actually putting that on
the face of the Bill is in defining what you mean by "Service
experience". […] Are you talking about somebody who
held a short Service commission 20 years ago? That counts as Service
experience. Are you talking about somebody who has been in the
front line on operations? Not many lawyers are in the front line
on operations, although they visit operational theatres.[131]
73. It was clear from our discussions, however, that
MoD shares our view on the desirability of the DSP having an appreciation
of the military environment, and preferably military experience.
Mr Morrison said that: "it is very well acknowledged that
the importance of a clear understanding of the Service context
will be a central element in the selection process".[132]
Service personnel must have confidence that the person taking
the decisions on prosecutions has sufficient understanding of
the context in which the events occurred. Whilst we appreciate
the difficulties involved in defining military experience in statute,
we do consider it important for the Director of Service Prosecutions
to have had military experience.
74. The Director of Service Prosecutions will be
superintended by the Attorney General, who currently superintends
the three individual Service prosecuting authorities. The role
of the Attorney General in the decision-making process was discussed
with the three heads of the prosecuting authorities. Major General
Howell described the relationship as being similar to that between
the Attorney General and other small prosecuting organisations.
He explained that in practice "… we take the view that
he has the right to be consulted on major cases".[133]
Major General Howell went on to say that:
One matter I must make absolutely clear, and
I am sure this goes for my two colleagues as well, we have to
accept that the final decision on whether to court martial someone
ultimately is our decision; it is not the Attorney's or anybody
else's. […] that the decision is ours.[134]
The Service Chiefs and the Chief of the Defence Staff
were content with the arrangements for superintendence of the
Director of Service Prosecutions by the Attorney General.[135]
75. We are content that the Attorney General,
as the Government's principal legal adviser, will retain an advisory
and superintendent role in respect of the new Director of Service
Prosecutions.
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