Military Justice is Liberty’s campaign to protect and uphold the human rights of those serving in our Armed Forces. We believe that the rights of service men and women are just as deserving of protection as civilians.
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Background
Investigation of criminal offences
If a service person alleges that they have been the victim of crime and they are in England & Wales, there is a presumption that the civilian police and prosecution authorities should pursue the matter. However Liberty understands that in practice this presumption isn’t necessarily followed. We are seeking information and greater clarity on when and in what circumstances criminal matters are being referred to civilian authorities.
If a service person alleges that they have been a victim of crime abroad, then there is a presumption that it should be the service police and prosecution authorities that should pursue the matter. This creates a risk that the military is tasked with investigating itself. History has demonstrated time and again that an organisation investigating itself is a bad idea. This was seen not only in Anne-Marie Ellement’s case but in a whole raft of cases arising from the war in Iraq.
Investigation of sexual offences
The Armed Forces Act 2006 requires that a commanding officer must refer a criminal allegation to the police in certain circumstances. However, the offences of sexual assault, voyeurism and exposure are excluded from this. This means that it remains within the discretion of the commanding officer as to whether the case should proceed at all. Given what we know about levels of sexual harassment and sexual assault in the military, this is deeply concerning.
Liberty believes that allegations of this nature must be referred to the police and must be taken out of the control of commanding officers.
More generally, it is vital that service police and service prosecutors have the necessary training and expertise in sex crime cases. If a civilian person alleges rape, the case is investigated by specially trained police with “rape specialist” prosecutors from the CPS. If the military is investigating these cases at all (which should only be in exceptional cases), there should be no reason why the military should be any different.
Independent oversight
Civilian police are subject to independent oversight by the Independent Police Complaints Commission (IPCC). While by no means perfect, the IPCC performs a vital role in the investigation of allegations of wrongdoing by police officers and provides recourse to people who do not feel that the police have done their job properly. Liberty believes that the service police should be subject to the same oversight regime.
For the same reasons more generally, service men and women should be able to benefit from an independent ombudsman who can investigate their complaints about service life. This would give service men and women confidence in their chain of command and would ensure that complaints were dealt with independently and fairly.
What this has to do with human rights
“It is one of the cardinal features of the law of England that a person does not, by enlisting in or entering the Armed Forces, thereby cease to be a citizen, so as to deprive him of his rights or to exempt him from his liabilities under the ordinary law of the land”. Chapter 303, Halsbury’s Laws of England.
As a human being you have human rights and under British law those rights are protected by the Human Rights Act.
If you are the victim of a crime, you have the right to a proper investigation and for those responsible to be held to account. That’s how it works. Being a soldier doesn’t make you less human. Those laws and those rights still apply.
- Article 2 of the Human Rights Act – the right to life – requires that the state not only refrain from taking life but also take steps to protect it. In the event of a death where the state may be involved, it also requires an independent, prompt and open investigation.
- Article 3 relates to inhuman and degrading treatment. Cases of rape, for example, must be investigated and those responsible held to account.