Who guards the guardians? MoD support for former and serving personnel Contents

5The way forward

Introduction

87.In addition to the specific failings we set out in the previous chapter, several former senior military offices have highlighted what they consider to be a more systemic problem in the MoD. The former Chief of Defence Staff, General Lord Richards, believed that IHAT was able to grow into a “many headed Hydra” because of an “instinct somewhere in Whitehall, within the Establishment, that basically soldiers aren’t good and freedom fighters, we call them terrorists, […] are somehow quite good”.122 In a recent House of Lords debate former Chief of the General Staff, Lord Dannatt, a former Chief of the General Staff, expressed his belief that at the heart of the issue of IHAT was “a willingness from government Ministers and officials to believe the fallacious allegations of many accusers,” rather than to have “confidence in the armed forces’ chain of command and the tried and tested processes of investigation and judicial disposal”.123 It is clear that significant change is needed. Indeed, the Secretary of State voiced his frustration with the current processes during our inquiry.

88.The MoD has said that it is developing a package of reforms to ensure that an investigation similar to IHAT could never happen again. We would like to contribute to that thinking. In Annex 1, we set out the principles to which we believe any future investigation should adhere. They are informed by the conclusions and recommendations contained in this Report.

MoD support package

89.It its original written submission, the MoD set out the support it provides to armed services personnel and veterans subject to judicial processes.124 That support includes legal, pastoral, access to information and security support.125

Legal costs for other judicial processes

90.Legal Support offered by the MoD included the provision of legal counsel and support to service and ex-service personnel, and extends to civil and criminal proceedings in both the civil and military courts. Where the interests of service personnel or veterans “diverge or could diverge” from the responsibilities of the MoD, “independent legal representation” may be arranged”.126 Where an individual member of the armed forces is subject to civilian legal proceedings against him or her personally the MoD stated it had “discretion to fund separate and independent legal advice or representation”. Any decision to do so would rest with the chain of command.127 As an example of this, the MoD highlighted the Al-Sweady Public Inquiry where a service person or veteran contacted to provide a witness statement was informed that the MoD would pay for independent legal advice.128

Pastoral Care

91.The MoD also stated that, where appropriate and practicable, Commanding Officers would be informed so that they could take “any necessary action to support service personnel”.129 Commanding Officers are encouraged to discuss the situation with the individual concerned, to try and establish the level of anxiety of the individual and to remind them of the general support from MoD and service welfare.130 MoD guidance also highlights the need for awareness of heightened levels of anxiety, and possible mental health problems which could be exacerbated by the prospect of legal proceedings. In addition, The Single Service Operational Stress Management Teams (TRiM) are available to support service personnel while the Veterans Welfare Service can offer similar support for former service personnel.131

92.The MoD gave the example of the Al-Sweady Public Inquiry where this support had been given. It included:

93.While it is clear that the MoD does have in place policies and guidance on the support to be provided to service personnel, Lewis Cherry argued that they were confusing and gave “contradictory advice”.133 As an example he argued that while one Defence Instruction Notice (DIN)134 stated that support should be given from the outset e.g. from police station interviews, the Joint Service Publication stated that the chain of command should offer support after an individual is charged. Furthermore, he argued that knowledge of the support packages was not extensive:

If the commanding officers don’t know, they are never going to tell their soldiers, sailors, airmen and families, and of course it falls to people like me to tell people.135

To back up his point, Mr Cherry claimed that of the 13 clients he was currently representing, “not one of them knew or had been told about the DIN”.136 Ms Meredith also argued that there was “nothing written” down as a framework for men and women which sets out the support that they can expect to receive.137

94.The problems with communication were exacerbated when it came to veterans. Ms Meredith said that in the absence of the chain of command, veterans were “out on their own, on a limb”.138 While she acknowledged that support was available from the Veterans Agency in respect of pensions and the Armed Forces Compensation Scheme, it had little accessible information for those facing legal proceedings: “it just says what will happen to you; it doesn’t actually say, ‘if you need legal advice, come to us,’ or, ‘we will provide a solicitor for you’”.139

95.We are deeply concerned that the MoD’s package of support for service personnel appears to be fragmented, inaccessible and largely unknown. The MoD must, as a priority, devise and publish a single, accessible framework which sets out the MoD’s responsibilities and the support soldiers and veterans can expect to receive. That framework must be widely publicised and understood throughout the chain of command.

Financial support

96.Several of our witnesses also questioned the provision of financial support for service personnel subject to the IHAT process. Lewis Cherry, told us that when an offence occurred “on duty” legal aid should be made available under the DIN but in his experience it was not, and declared “I have never known it to happen”.140 As an example of failings in legal support he highlighted the case of an army range officer and senior range planning officer who were both court martialled following an accident on a range in Afghanistan. Both officers were acquitted but Mr Cherry’s client was not supported by the MoD and had to pay £7,000 to fund his own defence.141

97.Mr Cherry also highlighted the fact that that under the current system, contributions to cover legal aid are taken from wages before the start of the trial. Although those contributions are returned with 2% interest if the individual is acquitted, he claimed that those contributions could be larger than the legal costs of representation—which were fixed—as contributions were based on earnings rather than on the costs of trial. He described this as “iniquitous” and “absolutely wrong”.142 Hilary Meredith contrasted the position of soldiers with that of Iraqi civilians who were “privy to the British legal aid fund” when they brought cases against UK service personnel.143

98.On 23 September 2016, during our inquiry, the Secretary of State for Defence, announced a new policy for meeting the legal costs of armed services personnel under investigation for alleged offences committed in Iraq and Afghanistan. In remarks to the Daily Telegraph the Secretary of State said the decision was in reaction to:

The high risk of false allegations about conduct in Iraq and Afghanistan and the length of time since these incidents may have taken place.144

He also confirmed that the MoD would “provide legal support without subsequent recovery of costs in all these cases”.145

99.In written evidence, the MoD stated that it was not aware of any serving armed forces personnel or veterans having had to pay for legal advice or assistance either at a service police station interview, or for legal aid in respect of representation at Court Martial as a result of IHAT investigations.146

100.We welcome the Secretary of State’s announcement that the MoD will now meet the legal costs of soldiers being investigated by IHAT. If it comes to light that soldiers and veterans have already paid out legal expenses we recommend that the MoD commits to reimburse them.

101.At present, the MoD’s decision to grant legal aid rests on whether or not an individual was “on duty” or not at the time of the alleged offence. We believe that this distinction requires greater clarity. We recommend that any alleged offence committed on a named and defined operation—for example Op TELIC—should come within the definition of ‘on duty’.

102.Furthermore, we recommend that the MoD’s policy on legal aid be modified to ensure that no member of the armed forces has to pay out more for their legal aid than the cost of that representation.

Experienced service lawyers

103.In addition to problems faced by soldiers trying to access financial support, we were told that service personnel also faced difficulties in accessing legal representation with an acceptable knowledge of service law. Lewis Cherry argued that:

The duty solicitor in England and Wales […] would not have a clue. They would not have an inkling about how to deal with an allegation of some abuse or whatever in Iraq in 2004. Some of us are more specialist than others. I know how to advise people and what to tell them, but that is not available to the general public, effectively, unless they know to ring.147

104.According to Hilary Meredith, access to experienced legal representatives was not only important for ensuring soldiers and veterans had an appropriate level of support, but it also would have assisted a speedier resolution to the allegations of misconduct by British troops in Iraq:

If there was a framework of legal support in place for the individual, the case would be driven by their lawyers as well, so you would not be waiting for something to happen from an IHAT team or an investigator […] I am sure that times would be reduced if there was either somebody driving it or a framework within the MoD that is pushing the case forward as well.148

105.We recommend that the MoD’s package of support should include an assurance that all service personnel should have access to, and representation by, legal professionals who are experienced in service law for either retrospective or future on-going investigations.

Conclusion

106.The IHAT experience has highlighted too many flaws in the manner in which investigations into historic allegations are conducted in the United Kingdom today. In the Annex to this Report we set out what we believe to be the key principles which should be adhered to in any future investigations. We look to the MoD to engage with these proposals when it considers future inquiries into the armed forces’ involvement in military conflicts.


122 Daily Mail, 11 October 2016

123 HL Deb, 24 November 2016, col 2061

124 Ministry of Defence (PJS0005)

125 Ministry of Defence (PJS0005)

126 Ministry of Defence (PJS0005)

127 Ministry of Defence (PJS0005)

128 Ministry of Defence (PJS0005)

129 Ministry of Defence (PJS0005)

130 Ministry of Defence (PJS0005)

131 Ministry of Defence (PJS0005)

132 Ministry of Defence (PJS0005)

133 Qq11–12

134 Defence Instructions and Notices (DIN) are MoD internal guidance notes which set out their regulations and policies.

135 Q12

136 Q32

137 Q31

138 Q31

139 Q33

140 Lewis Cherry (PJS002)

141 Q32

142 Q32

143 Q54

144 Daily Telegraph, 23 September 2016

145 Daily Telegraph, 23 September 2016

146 Ministry of Defence (PJS0015)

147 Q23

148 Q28




9 February 2017