Military Justice System

Martin Horwood Excerpts

Thursday 31st January 2013 Westminster Hall

[Martin Horwood (Cheltenham) (LD)]

I congratulate the hon. Member for Bridgend (Mrs Moon) on securing the debate. I apologise to her and to you, Mr Dobbin, and particularly to the Minister, because due to the change in timings I have to leave before the end of the debate.

I start by expressing my respect and admiration for the armed forces and my gratitude for the work that they do, including the Royal Military Police, who often investigate alleged criminal offences in difficult circumstances and face unique challenges. Nothing that I am going to say should detract from that at all.

Nevertheless, in the course of military justice and the way it is conducted—not so much to do with the facts of law in any case—some recurrent themes to do with process and transparency seem to occur a little too often. The confidence of the public and the people involved comes from good process and a degree of transparency. My hon. Friend the Member for North Devon (Sir Nick Harvey), the former Armed Forces Minister said,

“It ruffles an awful lot of feathers and people of a traditional viewpoint don’t agree, but if it is the view even of the commissioner that there is still a need for an independent ombudsman figure, I think we ought to sit up and take notice of that.”

He is right. I urge the Minister to seriously consider the establishment of such an ombudsman figure.

We are talking about a number of different things in this debate, including complaints, some about matters of law and others about matters of natural justice but not involving the criminal law. I want to focus on the conduct of legal cases, but not the matters of law involved. A number of cases have been mentioned. The hon. Member for Bridgend raised important points relating to those involving sexual harassment and rape, where, of course, the civilian justice system has evolved markedly over recent years in an attempt to be more sensitive and supportive of victims. There may be questions about whether the same kind of progress and evolution has taken place in the military justice system.

Tom Deacon, a former airman, does not contest the facts of an incident in 2007, when he apparently damaged a barrack room door with a vacuum cleaner—that must have been quite a party—but he argues that the criminal conviction he received was unduly harsh. The issue is not so much the legal facts of whether that criminal conviction was right or wrong; in his case, he was not warned that a criminal conviction was even possible in a summary hearing. The summary hearing took place behind closed doors and he did not find out about the verdict until three years afterwards, when it emerged through a Criminal Records Bureau check. His comment to the media was:

“The MoD can do what they like…They are completely above the law.”

I am sure that no hon. Member would necessarily endorse such a harsh judgment, but if there is even a perception of that kind it must give us pause and require us to pay attention to what is happening.

The Minister will be aware of a case that I raised with the Ministry of Defence over several years, which has subsequently been taken up by the hon. Member for Kingston upon Hull North (Diana Johnson), who has conscientiously supported a former constituent of mine, Mr Wayne Moore. The Minister replied in detail to an Adjournment debate last year on this case, expressing confidence in the legal outcome and that, in this case, there had been no real prospect of a conviction being secured. Again, this is not the place for anyone to challenge that judgment. Yet I think that the Minister would accept that, in that case, there were missed investigative opportunities—admitted by the Service Prosecuting Authority—unwarranted delays, particularly in the adequate gathering of evidence and poor communication between various military authorities, particularly between the SPA and the Royal Military Police. There was also poor communication between those authorities and Mr Moore, who was at various stages left in the dark for months on end about what was happening in the process. I am sure that other hon. Members will mention other cases.

The creation of an ombudsman in response to such problems with process and transparency will by no means be a panacea. It will not reassure everybody in every case that has not gone the way that they would want it to go—it will not cure all these things, which are sometimes cultural and sometimes to do with the conduct of individual officers and authorities—but it would at least mean that there was some recourse to an independent view of whether the process had been properly carried out. As the Service Complaints Commissioner herself has said,

“The purpose of the Service Complaints Commissioner was to give confidence to people using the system. For five years I said delay is a problem. If you had an independent level of appeal at the end you could simplify the system. It was my view that that would give people confidence in the system.”

Confidence is what we need here. An ombudsman figure would be independent and would be perceived as such. I am sure that an ombudsman would not be able to second guess the legal facts of cases that had become criminal cases, but would be able to investigate process and the conduct of military authorities and to suggest redress, as other ombudsman authorities can. An ombudsman figure would provide a powerful incentive to have better conduct of such cases and it would at least allow failings that had occurred to be identified and addressed by Ministers or the military authorities, even if it could not necessarily bring about redress in every case.

Nobody is above the law and no one is suggesting that the British military are above the law, but greater transparency and scrutiny, and access to independent review, might ensure that that is also seen to be the case.

[Bob Stewart (Beckenham) (Con)]

I am not going to talk about specific cases. I want to talk about the system of military justice, just to put it on the record. Military justice is superimposed on civilian law. It is an addition to, not a subtraction from, the civil law of our land. Military law imposes additional responsibilities on people who are subject to it. Military justice has evolved recently. It has changed quite a lot—notably in 2006—and was amended in 2011.

Criminal cases in the Army are investigated by the Special Investigation Branch of the Royal Military Police, and I understand that there is an SIB element in the Royal Navy and the Royal Air Force as well. The Special Investigation Branch of all three services deals only with criminal investigations. The SIB is independent of the military chain of command. Its investigators report directly to the Director of Service Prosecutions, who is currently Bruce Houlder, QC. He and not the military authorities decides whether a serious prosecution should go ahead. I accept the hon. Member for Bridgend (Mrs Moon) was talking about the interface with complaints, but I will talk specifically about the system—if it works, which it normally does.

The system itself is okay, but it does go wrong, normally because of human beings. In 2010 Her Majesty’s Crown Prosecution Service inspectorate reported that the Service Prosecuting Authority was one of the most successful areas that it had investigated throughout the land. The military justice system has of course changed—quite significantly—since I left the Army in the dark ages of 1996 but, in principle, it still consists of three levels. First, normally, a person charged under military law appears in front of his or her sub-unit commander—in the Army, for instance, usually a company commander, normally a major. Those charged have the right to have a friend or adviser present. They also have the right to opt for court martial should they so wish. If a sub-unit commander deals with a case of petty discipline such as insubordination, the accused has the right to appeal up to 14 days thereafter, against both the verdict and the punishment.

The next level is the commanding officer—normally, in the Army a lieutenant-colonel, in the Navy a commander and in the Royal Air Force at least a wing commander. Again, the accused has the right to have a friend or adviser present—they are clearly told about that right—or they can opt for trial by court martial, if they so wish.

[Martin Horwood]

My hon. Friend is speaking from great knowledge and experience, but one of the complications, as in the case of Mr Moore, my former constituent, is that a civilian is sometimes the alleged victim. The SIB process, therefore, which was involved in his case, is particularly untransparent to people who are not part of the military.

[Bob Stewart]

If a civilian is involved, as I understand it, civilian police and civilian court proceedings deal with the case. I do not know any specific instances and I am not going to go through it, but that is my understanding from when I was a commanding officer—a long time ago, as I said.

At commanding officer level, the accused has a right to have a friend or adviser present. Again, however, he or she can opt for trial by court martial. If convicted and sentenced, that person also has 14 days in which to appeal.

At the third level is the possibility of a court martial, which is obviously for serious cases. Again, accused personnel in such circumstances have the right to be represented properly—normally, in courts martial at which I have been present, by someone quite senior, such as a Queen’s counsel. The armed forces insist that things are done properly, and such people are brought out to wherever the court martial is taking place. Someone convicted by a court martial has the right to appeal to the court martial appeal court, which operates as part of the Court of Appeal and consists of civilian judges—nothing military. I am trying to point out that the system includes a largely civilian component.

In summary, there will always be cases in which military justice could have been improved. In general, however, the system itself is pretty good for all members of the armed forces, and indeed for civilians who work under military law. I note the time, so I will now sit down.