46.The Service Justice System (SJS) provides the legal framework to allow the Armed Forces to operate under a single system whether in the UK or overseas. It mirrors the civilian criminal system as closely as possible, but also includes offences unique to the Armed Forces, such as desertion, absence without leave or misconduct. While in the UK, Service personnel are subject to both Service and civilian criminal jurisdiction. When overseas, the SJS ensures personnel are subject to the same disciplinary system wherever they are serving, and allows the Service police to investigate offences abroad where the civilian police do not have jurisdiction. Service law applies to some civilians to a limited extent, such as those working or residing in designated areas. Prior to the AFA 2006 the three Services each had their own system of Service law. The AFA 2006 brought these together into a single tri-Service system with extensive changes to the legislation underpinning military law and Service discipline, with more limited changes in subsequent Armed Forces Acts.
47.A review of the SJS was commissioned by the MoD in 2017, with the purpose “to ensure [the SJS] continues to be necessary, fair and efficient”, timed so that it could inform the current Armed Forces Bill. It was published in February 2020. His Honour Shaun Lyons CBE, a retired senior Crown Court judge, carried out the review, supported by the former Chief Constable for Merseyside, Sir Jon Murphy, on the policing review. The review followed criticism of some aspects of the SJS, including the use of qualified majority verdicts in the Court Martial, and the handling of serious cases committed by Service personnel in the UK, which are subject to concurrent jurisdiction. The matter of concurrent jurisdiction was debated extensively during the passage of the AFA 2006 which established it, and has been revisited by predecessor select committees on the Armed Forces Bill since. The three parts of the review make a total of 84 recommendations, and many do not require legislative changes.
48.Clauses 2–7 and 11–19 of this Bill relate in whole or in part to the SJS, and some directly implement recommendations made by the Lyons’ review. Some are minor or technical in nature and the reasons for them are made clear by the Explanatory Notes, and will not be discussed further here. Other clauses make more substantial changes, for example, the introduction of ‘slip-rules’ to allow for mistakes to be rectified more easily. In evidence, both the Judge Advocate General (JAG) Alan Large and the Director of Service Prosecutions (DSP) Jonathan Rees QC spoke of the administrative burden placed on the Summary Appeal Court by the absence of ‘slip-rules’, with the DSP describing their inclusion in this Bill as a “hugely sensible thing to do”. Similarly, there is a new power to nominate Circuit Judges to sit as JAGs as a measure to increase resilience and efficiency within the SJS.
49.Clause 2 and Schedule 1 concern the constitution of the Court Martial and implement several recommendations from Lyons’ review. These include fixing the size of Court Martial Boards at three or six (six for more serious offences, determined by sentence), and a move to qualified majority verdicts instead of the simple majority system used currently. The use of simple majority verdicts had been criticised by some, including the former JAG HH Jeff Blackett, and Liberty, who proposed that unanimous verdicts be sought in the first instance. This was considered in detail by Lyons’ review, and he recommended adopting qualified majorities of five to one for six-member boards, requiring unanimity if membership dropped to five. When we asked whether he was content with the Government’s approach of continuing to require a qualified majority on five-member boards, he said:
The need for unanimity, if you drop down to five, means that there may be retrials. Retrials are not good for military efficiency, and I accept that a reversion to the majority principle in this case is sufficient.
Clause 2 also implements Lyons’ recommendation that rank-based eligibility to sit on Court Martial boards be extended to OR-7. In the review he noted that the Army and RAF agreed with this proposal, but there was concern from the Navy. In evidence he added:
I really am in the art of the possible; let me be quite honest. I wished to start this slight democratisation of the system. Dealing as we are with a hierarchical society, I believed that the best way was to step down one to these very senior and reliable non-commissioned officers and see how it goes. I am not saying in the future that it should not spread further.
Responding to the question of why it should not go further than OR-7, the Minister for Defence People and Veterans said:
We need to take this sequentially. It is an important move down to OR-7, and it will be reviewed again in due course. We want to make this the fairest justice system available, and if that includes moving beyond OR-7, we will do so in future.
50.Implementing another of Lyons’ recommendations, Clause 11 and Schedule 4 concern oversight of the Service police, and establish a new office of Service Police Complaints Commissioner. It is intended that this will mirror the functions of the Independent Office for Police Complaints (IOPC), providing oversight and creating a new regime for handling complaints. During the SJS review, Lyons considered whether this function could be met by an existing body, specifically the IOPC or the Service Complaints Ombudsman for the Armed Forces (SCOAF). He concluded that with additional resource either body could, but neither was ideal.
Nicola Williams, the former SCOAF, agreed:
I think a separate body is the right approach. There were some discussions early on that my office would deal with those types of complaints, but we were not set up to deal with that. The types of complaints that people would make—and this is the reason why separate offices are better—would be about criminal matters. The SCOAF is not set up to deal with criminal matters, so a separate body is definitely better.
Further clauses concerning sentencing, such as giving the Court Martial powers to apply deprivation orders and driving disqualifications, were welcomed by some witnesses and are expected to improve the effectiveness of the SJS.
51.Prior to the AFA 2006, serious crimes committed by Service personnel in the UK would be tried through the civilian justice system (CJS), with Service law applying overseas and to Service-specific offences. This led to occasional cases where multiple offences by the same defendant were tried separately under different systems. The principle of jurisdictional concurrency, established by the AFA 2006, means that any criminal offence committed by Service personnel in the UK can be tried either through the CJS, or the SJS. This also means that in situations described above, where there are both UK and overseas offences, they could be prosecuted together by the SJS rather than requiring two separate trials. While the principle of maintaining concurrent jurisdiction to be used in these rare cases is accepted, concerns remain about the extent to which the Court Martial should be trying serious cases, and this was considered extensively in the SJS review. In evidence, Lyons said:
I was surprised when I started my review and found that MMR [murder, manslaughter, rape] and particularly rapes committed by service personnel in the UK were being prosecuted in the SJS. I had known that the 2006 Act revoked the 50-year exclusion of MMR from the SJS jurisdiction, but I had always understood that the inclusion in the 2006 Act was to cope with rare or exceptional circumstances.
Discussing the difference between the stated intention of the then Government when AFA 2006 was passed and current practice, the Minister for Defence People and Veterans said:
[…] those were policy statements made nearly 15 years ago by Ministers in a different Government. Those policy statements did not alter the legal position set out in the Act: that of concurrent jurisdiction. We are considering what the position should be today and for the future, not what the position was 15 years ago.
We heard that concern around concurrent jurisdiction often centres on the quality of investigations, and comparative conviction rates, especially for sexual offences. Witnesses particularly spoke of hesitancy amongst those reporting rape, with the dual deterrent to reporting of poor outcomes at trial and perceived potential career impact. The Victims’ Commissioner, Dame Vera Baird QC, said:
Rape and sexual assault are hugely under-reported, and it is all the harder to report something when you are inside a system that is hierarchical and you may be jeopardising your own career by making a complaint about somebody, or you may indeed be complaining about somebody who is above you in the hierarchy. How is that not a power imbalance that actively deters people who have been wronged from seeking justice?
52.HH Shaun Lyons and Professor Sir Jon Murphy made parallel recommendations in the SJS review, about serious crimes being investigated and prosecuted in the CJS, with the provision for joint civilian-led police investigations as a solution to the relative inexperience of Service police in investigating such crimes compared to civilian officers. Sir Jon Murphy explained his recommendation:
In my opinion, in the UK, the best service can be achieved by the civilian police supported by the SIB [Special Investigations Bureau]. Civilian police have specialised homicide investigation teams and sex offence units dedicated to just that. The officers are dealing with just those offenses on a daily basis. They have specialist forensic officers and forensic medical examiners, with dedicated facilities. They have dedicated witness and victim support units. They have specialist CPS prosecutors and they are not diverted from investigations to perform other functions or complete training, causing unnecessary delay and not best serving the victims with justice. None of those things exist in the service police.
53.These recommendations have not been implemented by Clause 7 of the Bill, which relates to concurrent jurisdiction. Instead, the Government has chosen to address this with a new statutory requirement for a protocol to be agreed between the DSP and the Director of Public Prosecutions (DPP) in England and Wales, with additional protocols to be agreed with counterparts in Northern Ireland and Scotland. The DSP indicated that he expected protocols to be broadly similar across the UK. Referring to the clause not containing any presumption towards either system, Emma Norton of the Centre for Military Justice said:
If you accept that murder or sudden deaths should be dealt with by the civilian police, you have to ask yourself why that is. It is presumably because it is considered to be problematic for very serious alleged offences on military property to be dealt with by military authorities. All the women I represent would say that the same must apply for questions of rape. If you accept it for sudden deaths, you must accept it for rape. Currently, the protocol as drafted does not provide any direction on that at all. What Judge Lyons said was incredibly clear and very well evidenced. He made it clear that we are not talking about huge numbers of cases, so in the situation where the numbers are relatively small but the damage that can be caused to the reputation of the Armed Forces is so high, you really struggle to understand why they are so resistant to it. I don’t think it goes far enough, and the clause does need to be amended.
Those within the SJS provided a different view. The DSP Jonathan Rees QC said:
I have experience of both jurisdictions now. The prosecuting officers whom I have at hand to go to the court martial and prosecute serious sexual offences are the equivalent of their counterparts in the civilian system. They have the same training. They need to have a sufficient amount of experience before I allow them to do cases at a certain level. Some of them have been at the Bar. Some of them, as I say, have had huge amounts of experience and training. They are extremely good at what they do, but these are difficult cases. I am confident, certainly about the part that I can control—the quality of the prosecution—that the SPA is fit for purpose in that sense.
54.HH Jeff Blackett, former JAG, agreed with the Government’s approach on this issue. While acknowledging poor conviction rates, he noted that referral rates were higher in the SJS and suggested that “if all those cases were put into the civilian system, they would get lost.”, adding that the Court Martial system was in “significantly better shape” than in 2006.
In response to HH Jeff Blackett’s comments of referral rates, Emma Norton said:
It is no good referring high numbers to prosecutors if the quality of those service police investigations is not good enough. I direct you back to the Lyons review, which sets out why that is the case. I also think that the rate of charging is lower in the military justice system than it is in the civil justice system. According to the MoD, it is 47% versus 35% in the service justice system. None of this addresses the huge problems with under-reporting that have been referred to. We get glimpses of the real lived experiences of women. In the last Army sexual harassment survey, 7% of women reported an incident that would amount to a sexual assault if they had reported it, but most of them clearly don’t because the number of service police investigations opened in that period is very low. It is very hard to grasp the explanation for why outcomes at court martial are so low. Just to be clear, it is 10%. With the number of cases that actually start at court martial and end in a conviction, it is a 10% conviction rate, and nobody seems to be taking issue with that.
The Minister for Defence People and Veterans has highlighted that if there is disagreement between the DSP and DPP over which court should try cases, the final decision would rest with the DPP.
55.It should be noted that a Prosecutors’ Protocol already exists between the DSP and the DPP for England and Wales. As well as creating a statutory duty for a new protocol to be agreed, the Bill ensures this is also replicated for Scotland and Northern Ireland. Arrangements for the application of concurrent jurisdiction by police is covered separately, by an Memorandum of Understanding (MOU) agreed in 2008. The SJS review recommended that both be reviewed “to ensure that they reflect the current requirements of the SJS and CJS”. While not on the face of this Bill, several witnesses highlighted the importance of a clear policing protocol, and the DSP told us:
[…] there are occasions when prosecutors—no doubt both at the CPS and at the SPA, the authority of which I am the head—look and see that, on the facts of a particular case, the protocol doesn’t appear to have been properly applied. Because we have very good relations with the CPS, we get involved in discussions to see whether there a possibility of changing the jurisdiction. As previous witnesses have said, part of the key to this is making sure that the police protocol, which is contained in a memorandum of understanding dating back to 2008, is developed in conjunction with the protocol that I have to agree with the DPP, for example, so that they complement each other and the new principles that we are planning to put into the new protocol, which we have to agree under the Bill, are reflected in the police protocol.
HH Shaun Lyons also highlighted the importance of clarity from the outset of investigations, as “that is where jurisdiction starts.” Sir Jon Murphy added that:
It is not ideal when an investigation passes from one jurisdiction to another, but as the judge has highlighted, it is really important that the protocol is not only clear but is followed. In some respects the protocol needs to be quite specific, to avoid giving people latitude to make decisions that were never intended.
56.While not included in the Bill as it does not at this time require legislation, we heard from some witnesses that the Government’s work on the Defence Serious Crime Capability is welcome, and may address some concerns over the quality of investigations by the Service police. HH Jeff Blackett said:
Anything that brings the elements of the service justice system together with the civilian system is good, so the establishment of a defence serious crime unit—of course, it is not on the face of the Bill, but it is work that is going on—is probably one of the biggest recommendations that came out that will improve the system.
Work is still in the scoping stage, with more information due later this year, and it is not clear at present whether it will take the form that Sir Jon Murphy recommended, as a tri-Service unit. When asked about this Lieutenant General James Swift told us:
The key thing that Sir Jon was aiming for was to further improve the investigatory process, both making sure that our people were properly trained and making sure that they are working in a consistent and coherent manner, in order to produce the best possible investigations. It absolutely addresses all of those, not least through the central crime management tasking and then the common standards of training and learning from and with the Home Office. So, it gets at that, and will therefore deliver his intent.
57.The intention of the Lyons review was to ensure that the SJS remained “necessary, fair and efficient”, and this Bill (combined with the non-legislative measures accepted by the Government and in the process of being implemented) demonstrates a commitment to improving the system and ensuring it has the confidence of those subject to it and of the public at large. We have heard from those closely involved that confidence in the investigative function of the SJS is imperative, and while the ongoing work in the area does not require legislation, it is no less important.
58.We therefore welcome efforts to reform the Service Justice System following the Lyons review. We do, however, recognise some concerns remain surrounding concurrent jurisdiction and the decision not to implement this recommendation of the Lyons Review. The Ministry of Defence should work quickly to introduce the Defence Serious Crime Capability, and ensure clear protocols are in place to allow effective cooperation with civilian police forces.