Military Criminal Justice System in UK

7/29/2019 Military Criminal Justice System in UK

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The Military CriminalJustice System

Supporting Operational Effectiveness

in the Military Environment

An article by the Adjutant General


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The high profile of disciplinarycases that have come out of OpTELIC has focused attention on the

Military Criminal Justice System.

In order to allow that system to

continue to support operational

effectiveness, and to minimise any

potential damage to the Armys

reputation, the Adjutant General

has been delivering presentationsto the Army to present the facts

and dispel misunderstandings. He

has written this article based on

those presentations.

Lt Gen F R Viggers CMG MBE

Adjutant General


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The Army is required always, andwherever it serves, to act withinthe law as a disciplined force that is

effective and successful on operations.

It often serves where there is no law or

where UK standards of law and justice

are not applied. Self-regulation is

therefore a pre-requisite for militaryoperations. It enables the Armys

high standards of discipline and

conduct lawfully to be upheld under all

circumstances. The Military Criminal

Justice System is therefore necessarily

separate and universally deployable

it is an intimate part of the fabric of

the Army. It delivers British standards

of justice, which support the Armys

lawful conduct by calling to account

all those who are found, after proper

investigation to have fallen short of

the Armys standards.

With this requirement as thecontext, it is critical that all servingpersonnel understand the supportto operational effectiveness that the

Military Criminal Justice System gives.

This is particularly so against thecontext of the worrying impact thatthe debate by some commentators is

having on another vital component ofour operational efficiency, Reputation.Such is the importance of the issue, andsuch, sadly, is the apparent willingness

of some people to undermine elementsof our system, on the basis of incompleteknowledge of the facts, and ofteninformed by the media whose agenda

runs way beyond the Army, that I havebeen putting this message across to

all the key conferences, seminars andcareer courses since December 2005.The commanders of the Field Army and

Regional Forces have been doing thesame in their chains of command.

Our performance on operations,the investment in our equipment, our

training, and the estate all resonate longand loud, within the Army and beyond,and they affect our Reputation. But thegreatest challenge to Reputation lies in

how the Army is leading, developingand supporting its people.It is where Reputation matters most,where confidence in the Army is most

easily shaken, where trust can bequestioned - in each other, in thechain of command, by our familiesand by the country.

All the good things we do thatenhance our reputation such as actsof gallantry and high quality workby individuals on operations are

forgotten overnight when we are seento have let ourselves down. Incidentssuch as significant Compulsory Drug

Testing results and allegations ofabuse on operations or in the trainingorganisation receive prominence inthe media. Mostly, views are formed onthe basis of what others say about us,

picking and choosing the bits they wantto make their case. My purpose thereforeis to set out the facts and the context.

Iraq is the focus of the current

significant media interest and is likely toremain so. Out of a total of over 100,000Army Personnel deployed on Op TELICsince early 2003, this table shows how

The Military Criminal Justice System is

necessarily separate and universally deployable

it is an intimate part of the fabric of the Army.


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many cases, of varying types, have beeninvestigated.

Personnel Deployed on Op TELIC 100,000

Investigations of ALL types 192

..of those, return of fire incidents 101

..Case closed (no action) 176

Of the remaining 16 (Total investigations less

those closed with no action):

Cases dealt with summarily by the CO 3

Cases still being investigated 2

Cases with the chain of command

for consideration

1

Cases with Army ProsecutingAuthorities for consideration

1

Cases directed for trial 4

Trials already held 5

Table 1: Iraq investigations - the facts

(as at 8 May 2006)

There have been 192 investigations.

Of these, a majority, 176, having beenproperly investigated, have been closed

without further action. The remaining16 are shown in the bottom half ofthe table. The message here is one ofproportion, and it is also important to

differentiate between cases of allegedabuse, of which there are six, with thoserelating to shooting or other incidents,which comprise the majority.

Shooting Incidents

Shooting incidents, first. We aredealing here with allegationsconcerning the application of lethalforce, and we are on familiar territory

after 30 years of Northern Irelandexperience. The United Kingdoms

shooting investigation policy in Iraqis clear, and is that, in any incident

outside of warfighting, where shots arefired resulting in the death or seriousinjury of any person, a formal inquiryis required. The Commanding Officer

reviews the case, including seekinglegal and military police advice, within48 hours, and assesses the requirementfor a Service police investigation. He

recommends one only where criminalityis suspected. In all circumstances,including where he recommends thata Service police investigation should

be delayed for operational reasons, hemakes a recommendation to HigherAuthority. In Iraq, this is at the Brigadelevel, where further police and legal

advice is taken.

The application of the policyhas to strike a balance betweenthe maintenance of operational

effectiveness, including giving soldiersthe confidence to be determined androbust, and the need to behave, andbe seen to behave, within the law.

Investigation is fundamental to thislatter purpose. The aim of investigationis neutral - it is to establish the facts.The facts will exonerate those who have

acted properly, but we cannot escapethe duty to investigate any action in

The aim of investigation is neutral -

it is to establish the facts.


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which soldiers of all ranks might haveacted inappropriately. With our currentpolicy we can justify, before a court, that

not only are we doing what we should,but that our actions and proceduresare lawful.

The Case of Trooper Williams

Many cite the case of Trooper Williamsas an instance of where the Armygot the process wrong.

Acting in good faith, and on legaladvice that there appeared to be noprima facie case, the CommandingOfficer dismissed a case of unlawful

killing against Trooper Williams,without a hearing, effectively closingthe case within the Military CriminalJustice System. However, senior Army

legal advisory officers reviewed thatinitial advice, concluding that therewas a prima facie case that shouldhave been considered by the Army

Prosecuting Authority. Importantly theroute under military law to examineserious allegations, through the Army

Prosecuting Authority, was no longeropen, because it had been closed by theCommanding Officers dismissal of thecase. Having legal advice to the effectthat there was a serious allegation,

which amounted to a prima facie case,in the interests of justice, in support ofthe Military Criminal Justice System, andas Trooper Williams remained vulnerable

to prosecution by civilian courts, threemembers of the Army Board decided torefer the matter to the Attorney Generalfor resolution. This was the only option

legally left available in view of theconcurrent jurisdiction of the civilianauthorities. The Attorney General asked

the Director of Public Prosecutions,who is head of the Crown ProsecutionService, to consider the case. The CrownProsecution Service then decided that

the case should proceed to trial ona charge of murder. However, after apre-trial hearing, they decided not tooffer evidence and Trooper Williams

was formally acquitted on the charge.After Trooper Williamss acquittal,the Attorney General re-confirmedhis confidence in the Courts-Martial

System and stated that only in the mostexceptional cases will a Servicemanface trial in the English civil courtsfor offences on operations overseas.

Otherwise the serviceman will be dealtwith under military justice.

This was a wholly exceptional andunique case. It is worth remembering

that as at 8 May 2006, not one singlesoldier has been tried in court for firinghis weapon, in a tactical context, on

operations in Iraq.Work is in hand, in the Armed

Forces Bill, to enhance the proceduresused in such circumstances. Until itcomes into force, close co-operation

and other safeguards between the unitCommanding Officer, the Military Policeand the Army Prosecuting Authoritywill ensure that this type of case

should not happen again. In addition,recognising the vital part that legaladvice plays for the commander intodays increasingly complex operational

It is worth remembering that as at 30 March 2006, not one

single soldier has been tried in court for firing his weapon,

in a tactical context, on operations in Iraq.


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environment, the Army has created aBrigadier Operational Law post. The firstincumbent was in place on 1st January

2006. He will provide much neededsenior advice and support to deployedcommanders and legal staff on issuesof operational law. He is located at the

Land Warfare Centre, and is involved inthe training and education of our up-and-coming commanders, from subunit to Division.

Allegations of Abuse

Turning now to the cases of allegedabuse in Iraq, the facts are these.There have only been six cases involvingallegations of abuse, two of which havebeen completed. One of the soldiersconvicted has lodged an appeal against

the finding, and that is currently beingconsidered by the Court-Martial AppealCourt. The cases where convictionshave occurred are very different from

shooting incidents, involving as theydo serious allegations of the deliberatemistreatment and abuse of civilians.

It is essential to recognise the verydifferent nature of these cases, andto take care not to connect them withthose of shooting incidents and thusarrive at the wrong conclusion, as our

detractors regularly and apparentlydeliberately do. Cases where convictionshave occurred will continue to fuelcomment and criticism in the media

and elsewhere. Individual incidents ofbad behaviour have happened before,and however unpalatable will, nodoubt, happen again. When they do,

they have to be dealt with, thoroughlyinvestigated and brought to trial,if appropriate.

There are still three trials that havebeen directed and yet to come; twotrials with charges that do not amountto abuse provisionally scheduled for

the next two months; and then sevenindividuals who deployed as part of the1 QLR Battle Group on Op TELIC 2, whichis scheduled for September 2006. On

24 April 2006 the trial of four soldierswho were part of the Irish Guards BattleGroup began in Colchester. All soldiersfacing allegations in those cases will

continue to be given the full legal,welfare and career support they require,and are presumed innocent unless anduntil proven otherwise.

This is all high profile and verypublic at the moment and it is importantto continue to stress two points in alldiscussions, inside and outside the

Army. First; to maintain operationaleffectiveness we must operate withinthe law; secondly, no single soldier

has been prosecuted by the Army fora decision made in the agony ofthe moment.

The most recent case, of course,is that involving soldiers of 3 PARA.

It is not currently possible to give afull report of the consideration of theoutcome of that trial, but I have giventhe Chief of the General Staff and

Ministers my initial review of the case.This review included the considerationsof the Provost Marshal (Army), theArmy Legal Services, the Military Court

All soldiers facing allegations in those cases will continue to be

given the full legal, welfare and career support they require,

and are presumed innocent unless and until proven otherwise.


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Service and the Director of PersonalServices (Army), following the Judgesdetermination. The Army Prosecuting

Authority is submitting its own, separatereport to the Attorney General on theprosecution aspects, as he exercisesgeneral superintendence over them.

In the context of the contrarycomments made by the Judge Advocatein the 3 PARA trial, it is worth reinforcingthe point that the Royal Military Police

provides a competent and professionalinvestigative service, benchmarkedagainst Home Office standards andsubject to Peer Review by Home Office

police forces. They are required toconduct investigations in challengingenvironments, something that nocivilian police force has to contend

with. Southern Iraq is not Surrey,Maysan is not Middlesex. In conductingits investigations, the Royal MilitaryPolice is independent of the chain of

command, to avoid any allegation thatit has received inappropriate direction,but works in support of the Military

Criminal Justice System to establishthe facts. They are not responsible forcharging anybody this remains withthe Commanding Officer and the ArmyProsecuting Authority.

While a very small number of soldiershave, or are facing charges, as a resultof incidents in Iraq, Royal Military Policeevidence has enabled commanding

officers and the Army ProsecutingAuthority to exonerate the vast majorityof soldiers from any allegation ofwrongdoing. This has protected them

from further prosecution, so protectingthe good name of their Regiment in thespotlight, and also the wider reputation

of the Army. In short, thoroughand professional should never beconfused with over zealous. I speakto all Brigade commanders returning

from operations, to confirm that theChain of Command is content with thequality of all personnel support givenby all agencies to the deployed force,

including the Special InvestigationsBranch to date, all of them havereplied that they are.

The review of the 3 PARA case

shows that the Military Criminal JusticeSystem is far from being flawed. But thesystem has been, and still is, subjectto a number of challenges. The most

recent challenges at Judicial Reviewand the European Court of HumanRights that have been concluded havebeen rebutted; there is currently one

judgment from Judicial Review thatis to be concluded. However, externalscrutiny and media criticism as a result

of current high profile cases have, onthe one hand, expressed concern overthe lack of independence of the MilitaryCriminal Justice System and, on theother, asserted that individuals are

being hung out to dry. It has alsobeen claimed that, in some cases, theArmy Prosecuting Authoritys decisionto prosecute was driven by political

correctness or political interference.This is despite the trial Judge Advocatein the 3 PARA case making it clearthat the prosecution was properly

Southern Iraq is not Surrey, Maysan is not Middlesex.


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brought. As in the civilian system, itis inevitable that some prosecutionswill fail; this does not mean that they

should not have been brought to trialin the first place. No system of justicecould operate effectively if prosecutorspursued only those cases where there

was an absolute certainty of conviction.

Communication

What the 3 PARA report highlightsis the pressing need for an activeInformation Campaign, driven fromthe Ministry of Defence with theHeadquarters of the Adjutant General,

Land Command and others in support.Targeted at external and internalaudiences, this campaign needs tocreate a better understanding of the

Military Criminal Justice System, theoperational context and the backgroundto current cases but without breachingsub-judice conventions. Merely

reacting to criticism in the pressis not enough.

It is vital that all serving personnel,

particularly those with commandresponsibility promote the need forthe Military Criminal Justice Systemand its role in preserving operationaleffectiveness. It does this through our

doctrine of exercising discipline at thepoint of command. It ensures fairness oftreatment and justice, whilst enablingus to deal properly with those accused

of serious mis-behaviour. In protectingthe Military Criminal Justice System,the Chain of Command, and particularlysenior officers, must avoid saying or

doing anything that might damage anindividuals defence or prejudice theprosecution. This is frustrating, both

for those commanders, and also for thewider Army, but the line that is troddenhere is very thin - we are damned if wedo, damned if we dont. Throughout the

process every soldier facing chargesis presumed innocent and receives fulllegal and welfare support. There is nopolicy or intent to hang people out

to dry.

Policy Developments

Continuing with the theme ofsupporting individuals, my own viewis that there is one area of policy thatneeds further attention. Recently someofficers have found themselves the

subject of unwarranted and unfair publiccriticism that is based on assumptionsand incorrect facts. This criticism hasdamaged their credibility and integrity

and questioned their professionalism.As a result, it has had a direct impacton the operational effectiveness and

reputation of the Army. Currently, legalsupport is only considered where theproblem arises as a result of criminalproceedings or a formal inquiry in thecontext of allegations relating to the

conduct of a servicemans duty.I am therefore looking at the case forextending eligibility for legal supportto take account of media scrutiny.

Returning to Criminal Justice, theArmy does not help itself by having aprocess that is all too often subjectedto lengthy delay, at every stage. Even

Throughout the process every soldier facing charges is

presumed innocent and receives full legal and welfare support.

There is no policy or intent to hang people out to dry.


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straightforward cases can take months,sometimes years from being reportedto being dealt with. I have briefed

the Executive Committee of the ArmyBoard that my aim is to reduce thistime to, at most, eight months by themiddle of 2006, through, an Army-wide

action plan. I chair a Court-MartialDelay Action Group which looks atthe difficult cases, either those badlydelayed or particularly sensitive, and

directs remedial action by the chain ofcommand, the Royal Military Police, theDirector of Personal Services (Army) andthe Army Legal Services as appropriate,

to make sure progress is made. Mypurpose here is to improve the process;it will not be to discuss or influence inany way the detailed investigation or

prosecution of the case.The Chief of the General Staff has

directed a review of recent events in Iraqand their impact on our Reputation; to

examine what might have gone wrong,why, and what we might do about itin the future. The Director of Army

Personnel Strategy is leading this work,which will be published when the currenthigh profile Iraq-related cases haveconcluded. He has already identifiedthree areas of focus; training, education

and leadership. But the issue is not justabout how we behave when deployed.What we do and how we behave at homehas a direct relevance for when we

do deploy.A unit that has a good disciplinary

record in barracks, that has high moraleand team spirit, that looks after and

knows itself well, will be better able tomaintain those qualities once deployed.Such qualities are, of course, helped by

regular training and education sessions,but it flows just as much from how theunit lives its life on a daily basis, how thecommand team sets out its stall, how it

creates the regiments ethos and how itenforces its standards.

The Core Values

Selfless CommitmentCourageDisciplineIntegrity

LoyaltyRespect for Others

Values and Standards

More must be done by the chain ofcommand to educate and remindeveryone that the actions of any oneindividual at home can have an effect on

the Regiment and on the whole Army.This leads on to Values and Standards.By now you will have seen the revised

Individual Training Directive package- called Military Annual Training Tests- in which the clear message is thatValues and Standards apply in allcircumstances and environments, on and

off operations. How many of our Officersand SNCOs really know and promote thesix core values: Courage, Discipline,Integrity, Loyalty, Respect for Others,

Selfless Commitment? If they dont,Junior Non-Commissioned Officers andsoldiers cannot be expected to knowhow to behave either. Properly applied

Values and Standards apply in all circumstances

and environments, on and off operations.


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through good leadership, the ArmysValues and Standards will do muchto support our soldiers motivation,

commitment, trust and willingness tofollow the flag.

Conclusion

By way of a conclusion, mycomprehensive review of theaftermath of the trial of seven currentand former soldiers of 3 PARA concluded

that the Military Criminal JusticeSystem is far from being flawed. Itsupports operational effectiveness, itdelivers justice and most importantly

in many ways, it ensures fairness toeveryone in the Army. That fairness isunderpinned by the independence ofkey elements of the system, in particular

the Army Prosecuting Authority andthe Royal Military Police when they areconducting their investigations. It ishowever, not an issue that can be left to

the lawyers, policemen and disciplinestaffs. Good leadership and disciplineunderpin operational effectiveness

and are therefore everyones business,in particular the chain of command,in maintaining that operationaleffectiveness and fulfilling the MilitaryCovenant for example. Every soldier,

regular, territorial and reservist hasa critical role to play in this.

What we do and how we behave at home has

a direct relevance for when we do deploy.


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Core Values

Selfless Commitment

Courage

DisciplineIntegrity

Loyalty

Respect for Others


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Documents

Military Criminal Justice System in UK