Protecting those who protect us: Women in the Armed Forces from Recruitment to Civilian Life Contents

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4Responding if things go wrong

The Service complaints system

115.All Serving and former Service personnel can raise a grievance about their Service life. A ‘complaint’ can cover a service complaint (about any topic linked to Service) or a complaint made directly to the Police about unlawful behaviour. (Service) complaints that involve a criminal offence must be referred to the civil or Service police, to be handled in the civilian or Service Justice System (see paragraphs 155–157).239

116.The chain of command normally handles formal and informal complaints in the first instance, with a view to referring criminal cases to the police and managing non-criminal cases in-house. However, Service personnel have the right to report unlawful behaviours directly to the police, if they do not wish to tell a commanding officer.

117.Servicewomen (and minority ethnic personnel) are overrepresented in the overall service complaints system, as documented by the Ombudsman in successive annual reports since 2016.240 During 2020, women were 12% of personnel but made 21% of admissible complaints.241 Servicewomen are overrepresented in all complaint categories, but especially bullying, harassment and discrimination (BHD).242 Nearly half (47%) of servicewomen’s complaints related to BHD, compared to 22% of those of men.243 The Centre for Military Justice argued that this overrepresentation means that general failings in the complaints system—and specific problems linked to the handling of BHD complaints—affect female Service personnel in particular.244 The MOD acknowledges that women are still overrepresented in the system, but says that the share of complaints by women has fallen over time.245 However, we note that 21% of complainants were servicewomen in 2016 (the same share as today).246

118.In successive annual reports from 2016 to 2020, the Service Complaints Ombudsman for the Armed Forces247 (SCOAF or SCO) has never judged the internal service complaints system to be efficient, effective and fair.248 It noted “poor performance” in the timeframes for complaint-handling and in people’s confidence in the system. Most Service personnel who submitted a formal complaint (of all types) were dissatisfied with the outcome, the information received on progress, and the time taken (see chart below).

Views on aspects of the formal complaints process, considering those who made a formal complaint

Source: Lifted from MOD, UK Regular Armed Forces Continuous Attitude Survey Results 2020 [21 May 2020]

119.The Army’s Sexual Harassment survey of 2018 reported that 70% of those who had made a formal complaint about behaviour of a sexual nature were dissatisfied with how the outcome was communicated, the follow-up action against those responsible and the time taken to resolve it. Additionally:

Three-quarters (75%) of those who made a formal complaint said that they had suffered negative consequences as a result; the most common was feeling uncomfortable at work (98%) however, nine in ten (93%) Service personnel had thought about leaving the Army, lost respect for the people involved (92%), or felt humiliated (91%)249

120.Under-reporting of unacceptable behaviours is widespread. In 2021, 89% of Service personnel in the Regular Forces who had been subject to bullying, harassment or discrimination did not go on to make a complaint.250 Most commonly, they did not make a formal complaint due to not believing anything would be done (55%) or believing that it might adversely affect their career (49%). The Ombudsman has repeatedly expressed concerns over Service personnel’s lack of confidence in the system,251 as did other contributors to our inquiry.252 The former Ombudsman, Nicola Williams, warned that people in the lower ranks

still worry about being victimised for making a complaint. […] people are worried about being career-fouled—that suddenly their careers will come to a screeching halt.253

Around six in 10 respondents to our survey had not reported incidents of BHD that they experienced.254 Rates of reporting were slightly, but not significantly, higher among serving personnel.255 Servicewomen told us in confidential evidence that they feared retribution if they spoke up about their experiences and did not have faith in the system, with one saying she had been “terrified” to report sexual harassment. The academic and lecturer in law, Dr Fenton, believed that

Effective prevention goes hand in hand with effective reporting systems in which women are supported and believed256

121.In our survey, former and current servicewomen who had used the complaints system were extremely negative about their experiences (see chart below); more than one in three rated their experience as “extremely poor”.

Rating of the complaints system by those who had made a complaint (1 being extremely poor; 10 being excellent)

Source: Survey of our inquiry. Base number: 993 respondents

Many criticised the current complaints system as not fit for purpose, providing the following comments.

Box 3: Quotes from servicewomen who participated in our inquiry

“I have experienced an overwhelming culture of covering up/ denying incidents of harassment as well as a wholly inadequate infrastructure for females within the submarine service. Many of the women I have served with have opted to leave/become medically downgraded as a consequence of their treatment.” “I did not submit a complaint [about harassment] because [I] did not want it to be used against me, especially given the stigma women experience with regards to reputation […]” “In Regiments there is still a huge ‘club’ issue where problems are swept under the carpet […] The female - if attached arms - will be assigned out, potentially adversely effecting her career.” “It is well known among service personnel that if you make a complaint there is likely to be ramifications”

Source: Survey of our inquiry

122.The chain of command establishes lines of authority and accountability in the Armed Forces. It is integral to operational effectiveness and systems of discipline. The chain of command resolves individual complaints in the first instance.

123.The Wigston Review noted that the complaints system is “perceived to lack independence from the chain of command at every level”.257 Solicitors Bolt Burdon Kemp noted, for their clients

In many instances the chain of command has deliberately sought to belittle complaints and/or encouraged complainants to resolve issues informally, even where the issues […] might amount to a Service and/or criminal offence and should rightly be investigated. In more serious cases, our clients have complained that their chain of command actively sought to undermine their complaints by cajoling witnesses and/or supressing evidence.258

In confidential evidence, female Service personnel and veterans concurred and referred to experiences where their commanding officers coerced them to not to pursue a complaint.

124.As discussed in chapter 3 (paragraph 46), some former military leaders argue that there are not enough incentives for commanding officers to deal with complaints appropriately.259 For instance, Wing Commander (Retired) Graham House told us there is an “embedded conflict of interest” for commanding officers.260 He provided his own story.

Box 4: The story of a former military leader261

Wing Commander (Retired) Graham House served for 30 years. In 2011, he was made aware of a rape allegation in his unit. While he struggled initially to accept the allegation, he ultimately decided to take it to more senior officers, saying that “that is exactly why I’m here”. Instead of receiving assistance to progress the case, he told us the chain of command encouraged him to suppress the complaint to protect the organisation’s reputation: “I was told that the allegation was not only inconvenient, but that it was, at the end of the day, only an allegation and allegations are common-place. I strongly disagreed.” He noted: “As a result of my actions, in March 2012 the RAF Instructor central to the rape allegation was investigated, convicted and imprisoned on 3 charges of sexual assault against a minor. I was, shortly after that, then removed from Command, without proper explanation, and was later labelled as ‘high maintenance’.” These experiences contributed to him leaving the military and setting up the campaigning organisation, Justice4Troops. He judged that, when personnel lose trust in the military, “you are on a dark road to ruin, possibly suicide”.

125.In 2020, a majority of Ombudsman’s investigations into complaints due to undue delay, maladministration or substance were upheld partially or wholly in favour of the complainant.262

126.The Ombudsman’s most recent annual report identified recurring problems in investigations.263 In confidential evidence, former and current Service personnel identified specific aspects of the investigations process that went wrong for them after they made a complaint. Examples are in the box below. Although criminal offences are supposed to be referred to the police, some examples suggest this did not happen. Some veterans in our survey said that the poor handling of their complaints of sexual offences led them to leave.

Box 5: Stories that servicewomen (serving and veterans) shared of a problematic response when they made a service complaint of BHD, shared with our Committee directly and indirectly (non-exhaustive)

Failure to investigate incidents properly Involvement of senior officers as perpetrators (see also paragraphs 44 and 45) Witness statements not being taken or not being fact-checked Recurring suggestion of the manipulation of the work of Fee Earning Harassment Investment Officers and who they can interview Intimidation or obstruction of witnesses, and failure to respect confidentiality Evidence getting lost or withholding of audio recordings An alleged assailant being sent the civil address of a complainant Not being believed when reporting incidents of sexual harassment, sexual assault and rape Finding complaints ‘hushed up’ and collusion to give false statements Being actively discouraged from pursuing a complaint of sexual harassment, assault and rape (i.e. referral to police not taking place) Victimisation or harassment for making a complaint Annual reports being ‘doctored’ as a result of making a complaint Being bullied and harassed for supporting subordinates on complaints Counter-complaints by harassers or those implicated by a complaint Never finding out the outcome of their complaint (even if successful) Ombudsman being provided with false information or not being permitted to look at the Services’ own legal advice Complaints taking 3–10 years and “amateurs” responsible Slate being wiped clean after a perpetrator is posted or leaves post, meaning complaints can simply outlast the period until next posting (normally 3 years) Concealment to save the reputation of the unit Complainant rather than perpetrator moved even for an upheld complaint Officers unwilling to take forward a complaint as it will ‘harm his career’ Rejection of a complaint due to being submitted past the deadline, with no action to address the underlying behaviour that caused it Being made to feel like they were standing against their Service rather than the perpetrator

Source: Survey of our inquiry (open-text comments), written evidence264 and confidential evidence (focus group and written submissions).

The accounts received suggest that many Service personnel (male and female)—including senior officers—feel betrayed by what they see as a lack of fairness in the system.

127.The Centre for Military Justice also reported that commanding officers investigating a complaint (the ‘Deciding Body’) faced serious problems in accessing suitably qualified harassment investigations officers with the necessary experience and expertise, including female harassment investigations officers. Emma Norton, Director at the Centre, also warned that there is an “ingrained unwillingness” in the complaints system to see discrimination-related events as part of a pattern.265

128.The Child Rights International Network warned that both the service complaints and service justice system can be “intimidating” and “confusing” for minors (16-year-olds and 17-year-olds) in the Armed Forces who experience harassment or maltreatment.266

129.Last October, Nicola Williams, the then SCO, underlined the difficulty of maintaining confidentiality when complaints involve sexual harassment or discrimination.267 The Royal British Legion held a focus group with female veterans, who suggested the military process was a “significant barrier” to reporting rape and sexual assault, due to most senior personnel knowing about the allegation.268

130.Lt Col (Retired) Diane Allen warned that there is sometimes greater harm as a result of “leaders and the complaints system telling [women] it didn’t happen or delaying and mismanaging their grievances” than there was from an incident itself.269 Wing Commander (Retired) Graham House concurred. He described his own experiences of the complaints system as “brutal”, saying “God help” women, minority ethnic personnel and junior ranks who might not have his level of senior experience and resilience to draw upon.270

131.Many respondents to our survey said that a more effective system is needed to report unacceptable behaviours (including sexual offences), which is independent and offers more formal support for people raising a complaint. They felt this should introduce clearer ramifications for senior figures who do not follow the correct processes. They stated that the system should clearly define disciplinary actions and that outcomes should be reported on.

Delays

132.The Ombudsman has reported on the long delays that affect the complaints system. The Armed Forces have a performance target that 90% of service complaints should be resolved within 24 weeks. This target has not been met by any of the services in recent years, and the pandemic has increased delays in the system.271

Table. Percentage of Service Complaints received and closed within 24 weeks by Service, 2016–2020

Year	Royal Navy	Army	RAF	Tri-Service
2016	57%	25%	50%	39%
2017	56%	37%	75%	52%
2018	68%	40%	65%	50%
2019	74%	32%	52%	46%
2020	24%	42%	49%	40%

Source: Data lifted from SCOAF, Annual Report 2020 (2020), p 40

Of all complaints categories, BHD complaints were those least likely to be received and closed within 24 weeks in 2020.272 The Ombudsman noted parts of the process that appear particularly slow, such as admissibility decisions (which took an average of 60 days) and Appeals Body decisions (which last an average of 1 year and two months).273 In the most extreme instances, an admissibility decision (the first stage) took 535 days (Royal Navy), 314 days (RAF) and 269 days (Army). The Ombudsman warned that the Service Complaints Secretariats are small and the system is “not sufficiently resourced”.274 Service personnel cannot withdraw complaints without losing access to employment tribunal rights.275 This year, the MOD accepted a new Performance Indicator to make admissibility decisions within 14 days.276

133.The MOD’s progress review in 2020 found that the consequences of unacceptable behaviours are not always clear:

Multiple stories reflect a reality of perpetrators being moved on, or promoted, as opposed to being disciplined or dismissed.

The MOD told us it will soon start to publish anonymous service complaints outcomes, particularly for unacceptable behaviour.277 The timeline for this change is not clear.

134.Two years since our predecessors’ report on the work of the Service Complaints Ombudsman, we still have concerns about the functioning of the Service Complaints System and the lack of confidence in it. Our concerns are most acute for bullying, harassment and discrimination complaints, which servicewomen and minority ethnic personnel more commonly make. We understand the importance of the chain of command in the Armed Forces, but it is not always appropriate for Commander Officers to handle these complex cases, nor are they all properly equipped to do so. In some cases, their role appears to be a direct barrier to reporting. We even heard stories of senior ranks closing ranks and brushing complaints under the carpet rather than addressing them. When things go wrong for servicewomen, they go dramatically wrong.

135.We make further recommendations on service complaints in the next section.

Planned changes to the complaints system

136.In 2019, the Wigston Review identified a “pressing need to reform the Service Complaints system”.278 It recommended:

• Establish a central ‘Defence Authority’ responsible for cultures and inappropriate behaviours.
• Allocate responsibility for the reporting and handling of all serious behavioural complaints—including BHD cases—to the Defence Authority, based on an agreed threshold and allowing for anonymous and bystander reporting.
• Implement a two-tier complaints system, using a ‘fast-track unit’ for more straightforward cases (for example, pay and allowances), and reserving the full scope of the current system for the most complex cases.
• Urgently update the Joint Service Publication (JSP) 763 (MOD Bullying and Harassment Complaints Procedures)
• Improve support for all parties involved in the complaints process, including appropriate training for Assisting Officers (see paragraph 184).

137.The Wigston Review recommended the Defence Authority due to similar, successful models in the Canadian Armed Forces, Australian Defence Force and United States military.279

138.Despite saying it accepted all recommendations from the Wigston Review, the MOD has not established a central Defence Authority with responsibility for the reporting and handling of all serious behavioural complaints, including BHD complaints. Instead, the progress review in December 2020 states that the Ministry intends to set up “centralised functions within each of the single Services to look at admissibility decisions”, as well as “standing Decision Bodies which contain subject matter experts relevant to the type of complaint” and “empowering Commanding Officers to resolve minor awards”.280 It said that the new central Directorate of Diversity and Inclusion “will, in effect, also fulfil the function of a central Authority”.281 However, the Directorate’s mandate differs in key ways from the Authority recommended by the Wigston Review. For instance, the Directorate will not handle the most serious behavioural complaints outside of the Single Services, centrally.282

139.Several witnesses told us that they support the creation of a Defence Authority to handle the most serious behavioural complaints, outside the single Services.283 Some suggested that the Authority should not only be central but also totally independent of the MOD.284 Lieutenant Colonel (Retired) Diane Allen said that the independent defence authority (IDA) should be similar to an “OFSTED for defence”, to represent those who serve and who have served, and to track culture and behaviours.285 To her, the “biggest issue” is that the Defence “marks its own homework”.286

140.The MOD noted that, if a servicewoman does not want to make a complaint to her Commanding Officer, it is possible for her to ask the Ombudsman to refer her intention to make a complaint to the Chain of Command, using the SCO website.287 However, the Ombudsman cannot investigate complaints until the internal process has been exhausted. The Gray review (December 2020) suggests the new helpline, launched in 2020, provides a means of more anonymised reporting outside the chain of command.288 It is not clear where these callers will be referred to by the helpline.

141.The Director of Diversity and Inclusion suggested that it is not the role of the Directorate to provide independence within the complaints system, but rather the Ombudsman.289 Many contributors have criticised what they see as the limited mandate of the Ombudsman. For example, Wing Commander (Retired) Graham House told us it was a “disaster” that the SCO’s recommendations are not binding on the MOD.290 Justice4Troops gives quotes from female Service personnel from the Army and Navy on this issue:

I need to expose the failings of SCOAF. This is because many including lawyers, MPs and notable heads of service continue to believe that SCOAF is able to offer independent arbitration and therefore negating the requirement for an alternative body.

I’ve no independent representation nor assistance–even my Assisting Officer is conflicted by loyalty to the Chain of Command […]291

The latest annual report of the SCO showed that there are still 11 outstanding recommendations from the 2016–2019 annual reports. There are also some for which the SCO wants the Services to reassess the actions or decisions they have taken.292 Nicola Williams, the former SCOAF, told us:

the ombudsman is as independent as the person holding the office, and also as the legislation that underpins it293

142.Joint Service Publication (JSP) 763 is the MOD Bullying and Harassment Complaints Procedures, which outlines the steps for making, responding to, advising on, investigating and deciding on bullying and harassment complaints. The Wigston Review recommended in July 2019 that it be urgently updated, but we have been told it will be published in “summer 2021”, along with an updated version of the policy governing service complaints, JSP 831.294 At the time of writing, neither document has been published yet. Commenting on the delays, the MOD told us updating JSP 763 required “pan-Defence engagement” and has “necessarily taken time”.295 The expanded JSP 763 will include, clearer policy on online behaviours, a stronger policy of zero tolerance of initiation ceremonies and more examples/definitions from the Equality Act 2010.296 The MOD says that the new JSP 763 also reflects “improvements to the informal grievance resolution process”, which it hopes to allow for faster resolution of issues “at the lowest possible level”.297 All information on Service Complaints currently in JSP 763 will now be in a revised JSP 831.298 The Ombudsman has said that more informal modes of resolution, such as mediation, can be suitable, but should not be mandated if a complainant is not comfortable with them.299

143.The progress review in December 2020 reported ongoing improvements to the investigations process for BHD complaints. Investigators will now be “professionally trained to industry standards” and there will no longer be a freelance fee-earning model. The review says this will mean a “maximum 12-week turnaround period”. It added that performance will be benchmarked against the Home Office’s investigations process.300

144.Several contributors were negative about the MOD’s willingness to implement the Wigston Review, believing it did not truly accept the recommendations.301 Wing Commander (Retired) Graham House was damning, stating:

We cannot even implement our own review of ourselves.302

145.The Ombudsman reported in 2020 that the Single Services are undertaking internal reforms to speed up the complaints process, although the exact reforms are not always clear, especially in the Navy. Specifically, the report noted the RAF has a new team that is working to streamline the admissibility process by “empowering Commanding Officers as Specified Officers to make decisions on whether a complaint should proceed promptly and fairly” (in effect, strengthening the role of the commanding officer in the process). The Army has provided more resource for complaint-handling, updated guidance, “revised their Standing Operating Procedure” and “amended appointment letters to Decision Bodies”. The Royal Navy is working to “address the sources of dissatisfaction which gave rise to Service Complaints”.303

146.Additionally, the Armed Forces Bill 2021 will reduce the time limit for appeals from six weeks to two, for appeals against the first instance decision of the Decision Body, and for appeals to the Ombudsman. Emma Norton, Director of the Centre for Military Justice, and Nicola Williams, former SCO, were highly critical of reforming the appeals time limit, saying it would disproportionately affect servicewomen; the latter called it “disastrous”.304 Emma Norton noted that it will undermine personnel’s access to the employment tribunal, as they have to have appealed a complaint to be eligible to go to the tribunal. Nicola Williams doubted that the appeals stage is where the gravest delays in the system are, pointing to delayed admissibility decisions.305 The MOD says this will make the complaints system more efficient306 and that those requiring more time to appeal “due to the unique elements of service life” will be allowed this when “just and equitable”.307 We do not know how the MOD plans to judge what is ‘just’ and ‘equitable’.

147.Although the Wigston Review identified a pressing need to reform the complaints process, the MOD has not fulfilled the recommendation for a Defence Authority, to handle complex BHD complaints outside the chain of command. The new Diversity and Inclusion Directorate does not fulfil this function, due to its limited role in complaint handling. Nor are we convinced that the new standing Decision Bodies and “centralised functions” do either, because they are still in the Single Services. Due to a limited mandate, the Ombudsman does not offer an alternative reporting system in the first instance.

148.We heard consistent evidence suggesting the chain of command is a point of failure in the complaints system.

149.The MOD must establish a central Defence Authority, fulfilling the functions as foreseen in the Wigston Review. This should provide a reporting and investigation system, outside of the Chain of Command and outside the Single Services, for bullying, harassment and discrimination complaints. In particular, it should be comprised of specialised staff and remove the chain of command entirely from any complaint of a sexual nature (criminal and non-criminal). We make further recommendations later, in paragraphs 176–180, on the handling of criminal sexual behaviours.

150.The MOD must make the recommendations of the Service Complaints Ombudsman binding on the Armed Forces and the MOD itself, with a timescale and action plan for implementation of changes where they are recommended.

151.It sends entirely the wrong signal that the update to Joint Service Publication 763 (Bullying and Harassment Complaints Procedures), urgently recommended by the Wigston Review in July 2019, still does not have a clear publication date. The MOD must update the relevant Joint Service Publications (763 and 831) as a matter of urgency, and certainly by the time the Government responds to this report.

152.We are not opposed to local, informal resolution of grievances, but there are risks, as our evidence indicates, in using these processes for complex BHD complaints. The updated Joint Service Publications on Bullying and Harassment Complaints Procedures and on Service Complaints should each clearly refer to the other, so that personnel who experience bullying, harassment or discrimination are aware that the Service Complaints process is available to them if they do not wish to use an informal process or if the informal process does not successfully resolve the issue.

153.While we support reducing delay within the overall service complaints process, we seriously doubt that reducing the appeals time limit from 6 weeks to 2 weeks is the best way to achieve this. This is not where severe delays occur and will work against complainants. We struggle to understand why the MOD chose a step that may further reduce the already low level of confidence that Service Personnel have in the complaints system. The MOD should amend the Armed Forces Bill 2021 at the earliest opportunity, to retain the 6-week time limits for appeals against the first instance decision of the Decision Body, and for appeals to the Ombudsman.

154.The MOD should resource Service Complaints teams better to reduce significant delays in the system.

Sexual offences within the Service Justice System

155.The Service Justice System (SJS) acts as a legal framework to guarantee Service personnel face the same disciplinary code wherever they serve (both in the UK and abroad).308 It is mainly delivered by Commanding Officers, the Service Police,309 the Service Prosecuting Authority (SPA) and the Military Court Service (MCS) (Court Martial).310

156.Before 2006, service personnel who committed the crimes of murder, manslaughter and rape in the UK had their cases dealt with solely in the civilian Criminal Justice System.311 Since then, when members of the Armed Forces commit an offence in the UK, both the civilian Criminal Justice System and the Service Justice System can have jurisdiction (‘concurrent jurisdiction’). Currently, decisions over where cases are heard are taken on a case-by-case basis.312 In the UK, when both the perpetrator and victim of a sexual offence are serving personnel, the case is normally heard in the SJS.313

157.The SJS purposefully “place[s] the CO [Commanding Officer] in a central position”, given the CO’s role in maintaining their unit’s “morale, training and discipline”.314 Consequently, Commanding Officers are empowered to resolve some minor offences by Service personnel via a ‘Summary Hearing’, without involving the Service police.315 COs have a duty to refer rape, sexual assault and other categories of sexual offence to the police,316 although the Centre for Military Justice (CMJ) has suggested this does not have to be to the civilian police.317 However, there are some related offences that COs are not obliged to refer to the police, even though many do.318 The Centre for Military Justice warned that some sexual offences may be downgraded to non-sexual offences to enable a CO to deal with them via a Summary hearing (for instance, the downgrading of a sexual assault to a ‘battery’).319 It is not possible for us to verify this claim.

158.If a Serviceperson does not wish to tell a Commanding Officer about a crime in the UK, he or she has the right to report it directly to the Service Police or the civilian police.320 Both the Service Police and SPA officially carry out their roles independently of the chain of command.321

159.Over successive years, the majority of victims of sexual offences dealt with by the Service Justice System are women.322 In 2020, there were 161 investigations by the Service Police into sexual offences; 137 of the 180 victims were female.323 Of the 150 suspects involved, 140 were male, 4 were female and 6 were unknown. Victims were most commonly in the lower ranks, aged 30 or under.324 The MOD’s sexual offences bulletins do not cover offences involving members of the Armed Forces dealt with in the civilian system.

160.The Service Justice System Review by His Honour Shaun Lyons (‘Lyons review’) recommended in 2018 and 2019 that rape and sexual assault with penetration325 committed in the UK should no longer be heard in the Court Martial at all, except when the consent of the Attorney General is given.326 The Review also recommended that cases involving domestic violence and child abuse in the UK should always be dealt with in the civil system.327 The rationale for these recommendations was partly that

Service personnel remain citizens and in these serious cases when the civil courts are available […] they should be tried in that forum.328

161.The Government’s Armed Forces Bill 2021 does not directly implement the recommendations to move these sexual offences, domestic violence and child abuse outside the SJS, if perpetrated in the UK. Instead the Government is introducing “clearer guidance for prosecutors” on how serious crimes should be handled, with a Duty on the Director of Service Prosecutions and the Director of Public Prosecutions in England and Wales to agree a protocol on where cases will be heard if there is concurrent jurisdiction.329 If the prosecutors are unable to resolve a dispute over where a case should be heard, the civilian prosecutors will “have the final say”.330

162.The MOD justified its approach on the basis that some cases might involve linked service offences, that there might be cross or multiple jurisdictions involved in the offending (i.e. offending in more than one country), and also that there might be particular needs of a service victim that are better met by the SJS. It also said that the system must be “flexible enough to cope with witnesses in various locations at various times”.331 The Centre for Military Justice is highly critical of the Government’s decision to allow sexual offences by service personnel perpetrated in the UK to progress through the Service Justice System. It believes “there is nothing about sexual assault in the military that requires military expertise to investigate and prosecute it”.332

163.The Service Justice System policing review found that, despite some satisfactory investigations, the Service Police “do not investigate enough serious crime to be considered proficient”333 and that there were also shortcomings in the experience of the SPA.334 As part of an audit into how the Service police handle sexual offences and domestic abuse cases (Appendix H of that audit), the Service Justice System Review made several recommendations, including the mandatory referral of domestic abuse incidents to the Service Police by the Chain of Command, the training of medics from across the Services to the standards needed for Forensic Medical Examination Accreditation, and changes to data systems to comply with National Crime Reporting Standards.335 These recommendations applied to the handling of crimes committed abroad only, and did not replace the central recommendation that certain crimes in the UK should be taken out of the SJS altogether.

164.The Centre for Military Justice noted that its clients—servicewomen who are victims of offences—have

serious concerns about the service police’s ability to investigate their case and/or the quality of Service Prosecuting Authority’s (SPA) decision making and performance at court martial and/or other negative experiences at court martial.336

In confidential and public evidence, servicewomen shared stories of procedural failures in their cases, including concerns over the tone and quality of letters from the SPA, disclosure of sensitive details by the service police to the chain of command, the sending of SPA letters to irrelevant parties and the reluctance of the chain of command to report a sexual assault to the service police (despite the obligation to do so)..337

165.In the United States, in March, at President Biden’s direction, Secretary of Defense Lloyd J. Austin III ordered an Independent Review Commission (IRC) on Sexual Assault in the Military.338 In July 2021, the Commission published its recommendations to end sexual harassment and assault in the military, focusing on the four areas of accountability, prevention, climate and culture and victim support.339 In a memorandum on 2 July, the Secretary of Defense stated he would accept the recommendations “wherever possible”. He specifically committed to working with Congress to amend the Uniform Code of Military Justice (UCMJ): removing the prosecution of sexual assaults, domestic violence, child abuse from the chain of command, adding sexual harassment as an offence under the UCMJ and establishing new offices within the Secretariat of each Military Department to handle these crimes. He stated an implementation roadmap will be published within 60 days.340

166.The MOD told us it follows a pathway when handling rape cases.341 This pathway includes immediate actions to support a victim’s safety, a forensic medical examination (if the victim consents) and referral to specialist support. As in the civilian justice system, the Service Police undertakes wider investigatory work and a decision will ultimately be taken as to whether there is sufficient evidence to take the case to court. In the UK, the Service Police have arrangements for sharing facilities with those in the civilian justice system, specifically Sexual Assault Referral Centres (SARCs). SARCs have specialist facilities for forensic medical examination (FME) and a victim support service. Service Police also have “generic sexual offence examination kits (Early Evidence Kits)” and FME Kits, but these are used only in emergencies, such as deployments, where SARC facilities cannot be accessed.342

167.The MOD also told us that that for penetrative sexual offences, a Forensic Medical Examination “will always take place immediately if the victim consents to this” and the Service Police aim to gather this forensic evidence as soon as possible because “it degrades over time”.343 It added that complainants may not consent to an FME or may need time to consider. Furthermore

not all live sexual assaults would require an FME as no evidence could be obtained, for example for a sexual touching over clothing, […] no FME would take place as it is invasive […] in some circumstances the geographical location of a victim is such that there may be a delay in obtaining an FME.344

168.Given the time-sensitivity of forensic medical examination for sexual offence investigations, we asked the MOD to provide us data on the proportion of Service personnel who make a rape or sexual assault allegation and who are then referred for forensic medical examination within 24 hours.345 The MOD responded that, although the 24-hour window is especially important for considering the impacts of drugs and alcohol, victims can be examined for sample collection at any point within a 14-day window.346 We also asked the MOD about referral to specialist support within 24 hours. The Ministry provided the following information, distinguishing between penetrative and non-penetrative offences.347 These statistics refer to the calendar year 2020:

• 36 Service Police investigations occurred into non-historical (live) sexual offences (rape/penetrative) and, of these, there made 9 referrals for FME within 24 hours and a further 1 made an FME referral within the 14-day window (but after 24 hours). 10 FMEs were ultimately conducted: less than a third of the investigations. The reason why the remaining 26 investigations did not involve an FME referral is not clear, but may involve one or more of the reasons given by the MOD above (for instance, a lack of consent from the victim).
• Of these 36 investigations into non-historical sexual offences (rape/penetrative), 15 referrals were made to specialist support and 27 complainants were signposted to specialist support or given a victims’ leaflet. The timeframe for referral is ambiguous.
• A further 83 investigations occurred into non-historical sexual offences that were non-penetrative.348 No information was given on the referral of these cases for forensic medical examination or for specialist support. The MOD noted generally that not all live sexual assault investigations require an FME, as “it is invasive and would not yield forensic evidence”.349

These are not official statistics and the MOD cautioned that the data have been counted manually and may involve errors.350 Nonetheless, we note that:

• The MOD’s official statistics show a total of 161 service police investigations into sexual offences took place in 2020, of which 15 were into historical offences and would not require forensic medical examination.351 We asked about the remaining 146 investigations (non-historical), but the MOD originally provided us with information only about 107.352 Following further questions by our Committee, we now have information for 119 of these 146 investigations (83 non-penetrative offences and 36 penetrative offences).353 For various reasons, we have not received evidence for the remaining 27 investigations.354
• Under the category ‘non-penetrative offences’, the MOD excluded investigations for voyeurism, exposure and ‘other’ sexual offences, stating that these do not normally require FME or specialist support.355 It is our understanding that the data we received on non-penetrative offences covers Sexual Assault (No Penetration).
• Although the MOD states that “all victims of sexual offences” receive a victim Support Leaflet and information about specialist support services when they make their complaint (emphasis added), it did not provide us with information on the actual number of complainants who received this information after non-penetrative offences.

169.Service Police receive training on sexual offence investigations at the Defence School of Policing and Guarding. Specialist investigators also have access to training certified by the College of Policing, provided by civilian police forces.356 The MOD has stated that, building on the Service Justice System Review, work is also ongoing to develop the Defence Serious Crime Capability, including “delivering a central capability to support the investigation of sexual and violent offences”.357 The exact steps are unclear, although the MOD expects that this work will finish “by the summer”.358 In October 2020 the Defence Secretary announced a review into military investigations overseas, led by Sir Richard Henriques.359 Further information on this is limited, particularly the ways this review will differ from the Service Justice System policing review already published in 2018. As a new form of oversight, the Armed Forces Bill 2021 will introduce a new Service Police Complaints Commissioner, with the power to investigate serious and sensitive matters involving the service police.

170.The Centre for Military Justice warned that the Service Police do not have the same powers as the civil police for protecting against domestic violence. For instance, the Service Police cannot issue a Domestic Violence Protection Notice, Domestic Violence Protection Order or Stalking Protection Order, nor can they disclose a partner’s background under Clare’s Law.360

171.In each of the last three years, a majority of Service Police investigations into sexual offences have been in the UK.361 There has also been some increase to the number of such investigations in the UK.362 The Centre of Military Justice said that the fact that most sexual offences investigations occur in the UK matters because arguments for retaining the service police investigative capability are normally focused on jurisdictions outside the UK.363

172.In 2019, the Lyons Review noted that sexual offending at the Court Martial appears to have lower conviction rates than in the civilian justice system, especially when it comes to rape conviction rates.364 Comparing the two systems:

• Between 2015 and 2020, the 5-year average conviction rate for rape in the criminal justice system, according to Ministry of Justice data, was approximately 34%.365
• Between 2015 and 2020, the average conviction rate for rape at the Court Martial (Service Justice System) was around 16%.366

However, the Lyons Review emphasised the difficulty of making reliable comparisons, due to the higher volume of cases in the civilian justice system, as well as the profile of these cases (for instance, the ages of defendants). It also pointed out that a higher share of rape cases get referred to the SPA than in the civilian system.367 It said that, when comparing all offending (as opposed to sexual offending only), the conviction outcomes from the two systems are ‘markedly’ similar.368 The Centre for Military Justice (CMJ) accepted the data limitations but emphasised that there is evidence of worse outcomes of rape and sexual assault cases heard at court martial than those at the Crown Court. Emma Norton, CMJ Director, told the Armed Forces Bill Committee that

It is no good referring high numbers to prosecutors if the quality of those service police investigations is not good enough. […] It is very hard to grasp the explanation for why outcomes at court martial are so low […] With the number of cases that actually start at court martial and end in a conviction, it is a 10% conviction rate,369 and nobody seems to be taking issue with that.370

Legal witnesses before the Armed Forces Bill Committee defended the integrity of the Service Justice System and its ability to handle sexual offences appropriately. Jonathan Rees QC, Director of Service Prosecutions, said that the prosecuting officers at the court martial “are the equivalents of their counterparts in the civilian system”, with the same training, meaning that the prosecution is “fit for purpose”.371 His Honour Jeff Blackett, former Judge Advocate General, said that the prosecution rate for sexual assault cases was higher in the service justice system, even if the conviction rate is lower.372 However, he accepted that the role of the chain of command may act as an added disincentive on women to report sexual offences in the first place.373

173.Other contributors supported moving criminal investigations to the civilian justice system.374 Paula Edwards of the Salute Her female veterans’ service said this would give servicewomen greater confidence, as

if that investigation was taken up by civilian police, those women would feel more supported, and civilian police have more training to deal with traumatic incidents, whereas Military Police do not375

The Child Rights International Network (CRIN) wanted to see a protocol whereby violence against under-18s (including sexual violence) be heard in the civilian justice system.376

174.The Centre for Military Justice and the solicitors Bolt Burdon Kemp doubted whether personnel are made aware of their right to report allegations to the civilian police and have their case heard in the civil justice system, with the former stating that its clients appear to have “little knowledge” of this.377 Many servicewomen also told us they were not aware of this option. The MOD rejected the suggestion that personnel do not have access to information about this. It noted that it republished guidance in June 2020 explaining the Armed Forces Code of Practice for Victims of Crime and that this reminded personnel of their right to report serious crimes in the UK, including rape and sexual assault, to the civilian police or Service police.378

175.We do not believe that the problems highlighted by the Lyons Review in the handling of sexual offences in the Service Justice System have been fully resolved. While we accept there is a limited set of circumstances where it may be appropriate for the Service Justice System to be used for UK-based sexual offences (for example when there are offences both in the UK and overseas), this must require the Attorney General’s consent. There may be other compelling reasons, such as the young age and vulnerability of the victim, when it is more appropriate for the civilian justice system to hear these cases. In our view, the fact that a UK case may involve a victim and a perpetrator who are both Service personnel is not a sufficient reason for the Service Justice System to be used.

176.The MOD must implement the recommendation of the Lyons Review, that the Court Martial jurisdiction should no longer include Rape and Sexual Assault with penetration, except when the consent of the Attorney General is given. The Government should also consider the Lyons Review recommendations to place all Domestic Violence and Child Abuse cases in the civil jurisdiction when committed in the UK. This does not prevent cases with cross-jurisdictional elements (i.e. offending both in the UK and overseas) being heard in the Service Justice System.

177.The MOD must update their guidance so that the new Defence Authority (see paragraph 149) refers all sexual offences and domestic violence involving service personnel in the UK to the civilian police.

178.Using the data provided by the MOD, we struggled to account for the pathway followed in the Service Justice System’s handling of sexual offences and had to follow up to receive further information. We appreciate this data was provided in a short timeframe, but it gives the impression that centralised data collection is poor. The MOD must ensure that it follows its own Sexual Assault Pathway with specialist services (such as Rape Trauma Kits, timeframe for action on collecting forensic evidence need to be adhered to, and specialist training for commanding officers) for all victims who have faced sexual assault.

179.The MOD’s sexual offences bulletin should be expanded to include new data on the pathway followed, for example the share of allegations that resulted in a Forensic Medical Examination, the share of FMEs conducted within 24 hours of a report and the share of referrals to crisis counselling.

180.For the limited investigations into sexual offences still conducted by the Service Police, the Government should implement urgently the recommendations within Appendix H of the Service Justice System Policing Review (Part 1), which focus on improving how the Service Police investigate Domestic Abuse and Serious Sexual Offences.

Specialist support in the complaints and justice systems

181.A range of witnesses described negative health consequences for victims who had experienced bullying, harassment and discrimination, including being medically discharged.379 One veteran described the rape she experienced as “career ending and life changing”.380 The Salute Her service and the Centre for Military Justice noted the trauma for servicewomen as a result of sexual offences.381

182.As mentioned above (paragraph 130), the mishandling of BHD and sexual assault investigations can sometimes lead to greater harm than the incident itself.382 Additionally, the Service Complaints Ombudsman underlined the significant impacts on wellbeing of the current service complaints process, both on those making complaints and those named.383 In 2020, the SCO’s investigations led it to identify a recurring failure to offer welfare support to complainants on delayed investigations.384 The Centre for Military Justice stated that all of its clients have a “form of re-traumatisation” due to the complaints process.385 Bolt Burdon Kemp provided case studies of service personnel they supported in the service justice system, including Clara, a private from the Army, who was medically discharged with PTSD following 18 months of sexual harassment—and ultimately, assault—by a serviceman senior to her:

She felt let down by her chain of command during the police investigation and through the court martial process, namely by being placed in situations where she came into contact with the individual concerned […], and by a general lack of support […] She has been unable to return to any sort of employment.386

The Salute Her veterans’ service of Forward Assist is critical of the lack of independent mental health support to assist victims with complaints.387 Many servicewomen who provided us confidential evidence felt unsupported and alone.

183.The chain of command has responsibility to support those in their command and for letting them know where they can seek and get support.388 The MOD states that it makes available advice and guidance to personnel on submitting a service complaint. Additional advice and support is available via Diversity and Inclusion Advisers,389 chaplains, “unit welfare channels” and external organisations like the SCO and charities.390

184.For Service Complaints, complainants can also access an Assisting Officer (AO). The MOD is planning to increase early access to AOs, so that individuals can speak with one even before making a complaint. The Chief of Defence People told us Assisting Officers can be a “really good support mechanism” in helping personnel understand the process and progress through it.391 The Ombudsman noted that most individuals choose to accept the offer of an Assisting Officer, suggesting they are “responsive and supportive”.392 However, the SCO Annual Report also gave AFCAS data that suggested that around half of Regular personnel who submitted a written BHD complaint are dissatisfied with the support provided by Assisting Officers.393 Paula Edwards of the Salute Her female veterans’ service said that a lot of the women she works with find that “things aren’t done properly” when they get an Assisting Officer.394 The CMJ praised the role of Assisting Officers but said that they were not a substitute for access to appropriate external support.395

185.In December 2020, the progress review into unacceptable behaviours said further training for Assisting Officers was being reviewed and should be fully resourced.396 The Chief of Defence People told us the chain of command is responsible for selecting AOs,397 but the SCO said in 2020 that personnel can

nominate or assign an individual themselves to take on the role [of AO] provided that the proposed individual is an Officer, Warrant Officer or Senior Non Commissioned Officer.398

186.For criminal offences, Ministry of Defence told us that guidance is “widely available” for victims and Commanding Officers when responding to allegations.399 There is a Victims’ Services policy document (JSP 839), which outlines required services as part of the Armed Forces Code of Practice for Victims of Crime. This includes guidance on support for victims of rape and “other serious offences”, including

adaptation of working patterns, temporary changes to locations, consideration of additional leave request or even change of career.400

187.During criminal investigations, the Chief of Defence People told us there are Victim Support Liaison Officers that provide initial support and assist individuals to access additional support. He also said the Victims’ Commissioner for England and Wales is now on the Service Justice Executive Group and Service Justice Board, which will help “keep the victims at the centre”.401 The MOD committed to take forward recommendations of the Service Justice System Review, such as a witness care unit and training for commanding officers to offer the right support.402

188.The former Service Complaints Ombudsman, the Director of the Centre for Military Justice and Bolt Burdon Kemp told us there is also not enough specialist training to those who are party to resolving BHD complaints, including unlawful offences that may require referral to the police.403 The latter noted that, for many of its clients, the chain of command, Assisting Officers and Harassment Investigating Officers were “simply not prepared” to handle the sensitivity of complaints and victims’ needs, and that the quality of Harassment Investigating Officers “varied greatly”.404 The Centre for Military Justice stated:

With the best will in the world, commanding officers are not trained to handle serious sexual harassment complaints or the needs of victims of a sexual assault.405

The Centre told us that all its clients had experienced “what appears to be systemic ignorance” in the chain of command about the Defence Instruction Notice (DIN) on offering “appropriate care and support to the victim”. It said that this “appears to be honoured more in the breach than in the observance” and “needs updating”.406 In confidential evidence, some servicewomen told us their Assisting Officers (Service complaints) and Victim Liaison Officers (complaints involving a criminal offence) had been placed under pressure not to fulfil their role appropriately. Further examples of inadequate support being offered to victims of criminal offences were an individual not being aware that they could access a Victim Liaison Officer, and limited care for those making statements.407 Ahmed Al-Nahhas of Bolt Burdon Kemp told us that that none out of their hundreds of clients had seen the MOD’s victim charter.408 The Chief of Defence People told us that communicating the policies further is “one of the changes that has been rolled out this spring”.409

189.The former Ombudsman told us all those party to resolving a complaint—”assisting officers and investigation officers in particular, as well as deciders”—may benefit from “specialist training to deal with these particularly sensitive subjects”.410 The Lyons Review recommended formal training for Victim Liaison Officers.411 In our survey, respondents suggested a specialist support unit offering advice to the chain of command, as well as access to female confidantes or support outside of the chain of command. One called these issues “too serious to be left to amateurs”.

190.The MOD states that it understands that women who make complaints about unlawful behaviour, especially sexual offences, may have concerns about their “ level of support” and the “actual process of dealing with their case”. It said that it handles these types of complaints “with the utmost seriousness” and recognises that “enhanced support” is necessary for “victims of the most serious crimes, persistently targeted victims and vulnerable or intimidated victims”.412

191.When personnel experience BHD, including criminal offences, their experiences of receiving support vary too much. For instance, it is not acceptable that victims of crime have not heard of the MOD’s Victims’ Charter. We have doubts about the quality and consistency of support offered by key individuals in both the complaints and the justice system, including the chain of command, Assisting Officers, Harassment Investment Officers and Victim Liaison Officers. We also heard stories of these individuals coming under immense pressure themselves when trying to fulfil their role. We support the MOD’s commitment to improving training for commanding officers to offer the right support.

192.The MOD’s specialist support must reach those who need it in practice. It must also advertise forms of external support to personnel, in case they do not wish to use that offered by the MOD.

193.All individuals—chain of command, Assisting Officers, Harassment Investment Officers and Victim Liaison Officers—with a key role in handling complaints must receive structured training to allow them to complete this role and to refer personnel to appropriate support. Should the MOD accept our recommendation to create a central Defence Authority (paragraph 149), the workload of these individuals should also reduce.

194.It is not completely clear from the evidence whether personnel are able to self-select an Assisting Officer or whether this individual is always assigned by the chain of command. Provided the officer is of appropriate seniority, we support offering an option for personnel to self-select an Assisting Officer, so that it can be an individual in whom they have greater trust.