BLOG: Without basic access to justice, the integrity of the military is at risk

As Victims’ Commissioner, it is my role to promote the interests of victims and witnesses in the justice system. But what some may not realise is that not all of us are subject to the same justice system – with, at times, startlingly different justice outcomes.

If you are a serving member of our armed forces, whether the navy, army or air force, you fall under the Military Court Service, not the civilian system you and I are subject to.

Forces personnel have long been subject to services law and the court-martial system, which applies in the UK and abroad. Since 2009, military courts have been able to also try rape and other serious offences. But there have been significant and increasing concerns over how the Services Justice System prosecutes the most serious crimes, in particular rape and sexual assault.

It hardly needs restating how poor convictions for rape are in the civilian system.  I frequently take to the airwaves to decry the latest record low prosecution numbers, which in turn lead to low numbers of convictions. But convictions for rape in the military are four to six times lower than in civilian courts. It simply cannot be overstated how dreadful these numbers are.

A total of 129 rape cases were heard at military courts in the five years to 2019, 13 of which (10%) resulted in a conviction, according to Ministry of Defence figures (as reported in The Guardian). The current civilian conviction rate is artificially inflated by the CPS failure to prosecute anything but rock-solid winners. But even when it wasn’t, it was never less than 50%. That is five times the current appalling military conviction rate. If you are raped while serving in our armed forces, your chances of seeing justice are shockingly low.

Despite its many flaws, at least the civilian system is independent and can provide independent support for victims. It is not perfect and work must be done to improve the system for victims, but the government set out its plan to tackle this in its end-to-end rape review, published in the Summer, and this is work that I support.

In contrast, the recent Defence Committee Inquiry into Women in the Armed Forces found shocking instances of poor victim treatment. For example, they found pressure to suppress complaints of rape within military units, repercussions for individuals if they reported rape, victims not being believed when reporting, and other victims being discouraged from reporting at all.

Earlier this year, I gave evidence to the Armed Forces Bill Committee, alongside key stakeholders including the Centre for Military Justice. The session illustrated a clear distrust in the Service Justice System, with concerns of victim-blaming, underreporting, a lack of understanding of victims’ needs, and the perception that military requirements were given precedence above the needs of individual victims.

But this is nothing new. Indeed, a critical review of the service justice system was recently carried out by the retired crown court judge Shaun Lyons. Released last year, Lyon’s first recommendation was: “The court-martial jurisdiction should no longer include murder, manslaughter and rape when these offences are committed in the UK, except when the consent of the attorney general is given.”

The Ministry of Defence rejected that recommendation out of hand, arguing instead that it “believes that the service justice system is a system capable of dealing with the most serious offences and should be able to continue to do so.” This was deeply regrettable.

With the Armed Forces Bill making its way through Parliament, the Centre for Military Justice has been campaigning for cases of rape and sexual assault to be dealt with outside the military system, as was front and centre in the Lyons report. This work has my support.

Regrettably, amendments to adopt the Lyons Review recommendation have failed. Instead, as a compromise, a protocol has been proposed by the government to agree where cases will be heard if there is concurrent jurisdiction, i.e. where either the Service Justice System or the civilian criminal justice system has jurisdiction to try criminal offences committed by service personnel in the UK.

But the Lyons Review couldn’t be clearer, specifying that murder, manslaughter, rape, sexual assault by penetration, domestic abuse and child abuse alleged to have occurred in the UK should be dealt with by the civil criminal justice system, not the Service Justice System.

When it comes to rape and sexual assault, these are offences that disproportionately affect women. It seems obvious that the poor performance on rape is inextricably linked to wider concerns around culture and discipline within the armed forces, which would only serve to undermine the effective prosecution of rape and sexual violence.

I recently wrote to the Defence Secretary, Ben Wallace, reiterating just this point. I had been pleased to see it reported that the Secretary of Defence recently called a meeting of Army leaders over concerns of culture and discipline, primarily around sexist, misogynistic and bullying behaviours. I thanked him for his leadership in this area.

But if we are to genuinely improve the culture in the armed forces, to better the working environment and conditions for women, then we must also address the terrible imbalance in justice outcomes for women in the Services Justice System. It seems to me that tackling one is dependent on tackling the other.

In my letter to the Defence Secretary, I called for the government to reconsider the amendments to the Armed Forces Bill. Because it is crucial that crimes are recognised and victims’ needs are met.

Victims must have independent justice. Rape must be prosecuted. Without this basic access to justice, the integrity of the military is at risk.

Notes

• Read the letter to the Rt Hon Ben Wallace MP, Secretary of State for Defence (19 November 2021)
• Dame Vera Baird, in her capacity as Victims’ Commissioner for England & Wales,  sits on the Service Justice Board (SJB), and attended for the first time in 2021, where she advises on victims’ rights and issues. The SJB meets at least twice a year and brings together Ministers and senior leaders from across the Service Justice System (SJS) and works to set strategic direction for the SJS.