My reference: LSM/FOI/120924/27

Background.

A Channel 4 News investigation in 2010 discovered that the conviction rate for rape investigations in the military justice system is less than half that of the civilian system – which itself, has a deplorable record. During the investigation Channel 4 News tried repeatedly to elicit from the Ministry of Defence basic but critical information about its track record on investigating rape. The answers Channel 4 News eventually received raise serious questions about the military's ability to effectively deal with allegations of rape. Channel 4 News asked the MoD how many allegations of rape had been made to the military police. After a two month delay - which the MoD said was due to a re-organisation of how offences were recorded - Channel 4 News was told that between 2007 and 2009, 76 allegations of rape were investigated by the Armed Forces. But just two cases ended in conviction. A rate of 2.6 per cent. By comparison, the conviction rate when civilian police investigate is around 6 per cent.

Source: http://www.channel4.com/news/military-in...

Rape victims in the Armed Forces have numerous additional hurdles in attempting to seek justice, compared to their civilian counterparts:

1. Royal Military Police (RMP) independence, resourcing and training and attitudes. Questions over RMP independence have been raised extensively by organisations such as Public Interest Lawyers. Of equal, if not greater concern, is that RMP resources are controlled by the Army. The dangers inherent in the organisation whose personnel are being investigated controlling the budget and staffing levels of the organisation responsible for said investigations should be obvious. (An analogy to demonstrate this would be if News International controlled the Leveson Inquiry’s or Metropolitan Police budget and staffing levels.) Finally, RMP personnel are ‘soldiers first, police officers second’ – the effect of this mindset on attitudes towards rape victims can neither be quantified, nor monitored, as the RMP are not subject to oversight by the Independent Police Complaints Commission. Police training, and attitudes to rape, are crucial, as was first demonstrated in the BBC documentary series Police in 1982, in episode three of which, 'A Complaint of Rape', a woman with a history of psychiatric treatment claims she has been raped by three strangers and is, in turn, bullied and cajoled by three male officers who dismiss her story out of hand. "This is the biggest bollocks I've ever heard," erupts one officer. The woman remains unseen as the camera assumes her point-of-view, trapped in the claustrophobic confines of the interrogation room. As she is subjected to the most hostile questioning, the accusing officers fill the frame in penetrating close-ups and the viewer gains some sense of her double violation. Transmitted soon after an infamous court decision (in which a judge had accused a hitchhiker of "contributory negligence" in her own rape), 'A Complaint of Rape' caused a public outcry and led to a change in the way police forces handled rape cases. Within months, a new rape squad of five female officers was formed in Reading. "The most we can hope is that people will rethink their assumptions - including policemen," said the producer.
Source: http://www.screenonline.org.uk/tv/id/464... Questions about RMP independence were, for example, highlighted by Law in Action on 4 Nov 10: http://www.bbc.co.uk/programmes/b00vkxh9

2. Army Legal Services training and experience. Army Legal Services (ALS) prosecutors are notoriously inexperienced, and civilian barristers routinely run rings around them. This is a problem admitted to off-the-record by senior ALS officers, and even Bruce Houlder QC, the Director of Service Prosecutions warned Law In Action in 2010 that the quality of his prosecutors was insufficient: ‘Joshua Rozenburg: Bruce Houlder QC is the first civilian to head service prosecutions. …Bruce Houlder revealed that the new Armed Forces Bill would give him power to recruit civilian prosecutors, and it's a power he says he won't hesitate to use if he doesn't get the support he needs. Houlder: "I have no intention here to civilianise this organisation. I know there is a provision to be taken in the next bill that would allow me, if it became necessary, to appoint a civilian as a prosecutor. In taking that provision I have made clear that I have no intention of doing that, so long as the services are able to continue to furnish me with sufficiently and appropriately skilled prosecutors. You asked me if I want some changes: yes, I do. I want properly-trained prosecutors. The trouble is at the moment they don't come here fully-trained. They come here as very clever, bright, and independent-minded lawyers but some of them have no experience in the criminal law and the training starts when they come here. Now that really is not satisfactory. I'm not a training organisation, I'm a prosecuting authority. I have no control over who comes here, how long they stay here, and where they go afterwards. But there we are, that's the world I operate in, I'm prepared to do my best with what I've got, but ask me if I'd like some changes, yes I would. I would like this organisation, and the work we do, to be more respected, as the specialist which it undoubtedly is.' (From BBC Radio 4, Law in Action on 4 Nov 10, at 17 mins 10 secs onwards: http://www.bbc.co.uk/programmes/b00vkxh9) The statute permitting recruitment of civilian prosecutors is Section 21 of the Armed Forces Act 2011, see http://www.legislation.gov.uk/ukpga/2011... and
http://www.legislation.gov.uk/ukpga/2011....

3. Judge Advocate training and experience. The role of the judge advocate (the term used for the equivalent of crown court judge in courts martial) is vital. At present, many judge advocates lack both the training and experience of their civilian counterparts, with predictable consequences in terms of their ability to control robust defence counsel. As one news report highlights, trials themselves force rape victims to relive the experience, and their treatment is in the hands of the judge: 'Would you have expected the judge to intervene at the point where the defence tried to claim that he hadn't penetrated her and that it wasn't rape? "I really wish," she says, "and most officers would, that judges would intervene more. But they don't, unfortunately." "…it is tough that the victim becomes a victim twice. When a large proportion of women who have been through that procedure say that the court experience was worse than the rape itself, there is something wrong. Something needs to be addressed…" Source: http://www.guardian.co.uk/world/2003/aug.... Anecdotal evidence from one female officer who sat on a court-martial board (‘jury’) was that the court martial was stacked against the victim, and that the judge advocate permitted intrusive questioning in to the victim’s sexual history which poisoned the minds of the (otherwise entirely male board/jury) against the victim. The female officer’s description of defence counsel conduct implied that both the judge advocate and the Army Legal Services prosecutor neither understood nor enforced the relevant provisions of the Criminal Justice Act 2003 designed to protect victims from brutal cross-examination designed to undermine them in the jury’s eyes. (See http://www.cps.gov.uk/legal/a_to_c/bad_c...). Attempts to mitigate this problem have been enacted in Schedule 2 of the Armed Forces Act 2011, which permits Judge Advocates to sit in civilian courts so as to gain further experience – this will provide no comfort to victims in the immediate future, however. Schedule 2 AFA11: http://www.legislation.gov.uk/ukpga/2011... and http://www.legislation.gov.uk/ukpga/2011....

4. Proportion of female board (‘jury’) members in courts martial. Male board members are – arguably, and certainly in the perception of rape complainants – more likely to a) identify with the defendant rather than the victim, b) to evince ‘traditional attitudes’ towards victim’s so-called responsibility for being raped, and c) be unable to appreciate the trauma of rape. The Armed Forces are overwhelmingly male, and thus the pool from which courts martial boards are selected reflects this.

5. Rank of female board (‘jury’) members in courts martial. Even if there is a minimum number of female(s) on a court martial board, due to the military’s demographic imbalance, and relative inability to retain female service personnel beyond their early years of service, female personnel on a court martial board are likely to be the most junior, and therefore their ability to contribute to the discussions of the board are constrained by the military reflecting a cultural element articulated by Professor, and TA brigadier, Richard Holmes (1995) that “the value of the opinion expressed in the British Army is directly related to the rank of the person expressing it”. Source: Kirke, C. M. S. ‘ Military Law, Justice, and Culture in the British Army’, 2008 (2) Law, Social Justice & Global Development Journal (LGD). http://www2.warwick.ac.uk/fac/soc/law/el...

6. Military attitudes towards ‘complaining’, and belief in misogynistic stereotypes. The overarching climate towards complainants in the Armed Forces is reflected by reports of the Service Complaints Commissioner. Her, extremely-limited, remit encompasses non-criminal actions of – in relative terms – far less contentious nature than possible rape charges. It is reasonable to infer that the procrastination, victimisation and inaction experienced by complainants in these comparatively minor, but at least reported, complaints, is a microcosm of that experienced by rape victims.

7. Inability of any external organisation to review Royal Military Police or Army Legal Services decisions. There are ongoing concerns over possible misuse of military judicial powers to cover-up criminal conduct. These were first highlighted in the Deepcut Review, in which Sir Nicholas Blake QC, explaining what powers an Armed Forces Ombudsman needed, recommended (p403 para 12.101(iii)) that:

‘Where appropriate, the Commissioner should be consulted on decisions as to whether to bring disciplinary action...including where it is intended that no such action is to be taken. ...In an important case, the Commissioner should be able to institute legal proceedings to set aside legally flawed decisions not to prosecute.’ (Source: Sir Nicholas Blake QC, The Deepcut Review, A review of the circumstances surrounding the deaths of four soldiers at Princess Royal Barracks, Deepcut between 1995 and 2002, p403. http://www.official-documents.gov.uk/doc...)

The MOD rejected this out-of-hand, asserting that:

‘The proposal that a commissioner might have the right to be consulted in disciplinary matters, or have the ability to intervene to institute legal proceedings against decisions not to prosecute, would undermine the role and independence of the prosecuting authorities. There is no precedent in the civilian criminal justice system for such intervention. The independent prosecuting authorities make their decisions on the basis of evidential tests and public or Service interest tests, under the general superintendence of the Attorney General.’ (Government's response to the Deepcut Review, 29 Sep 06, http://www.mod.uk/NR/rdonlyres/25DDEF96-...)

The Roman poet Juvenal cautioned, ‘Quis custodiet ipsos custodes?’, literally translated as "Who will guard the guards themselves?". In the Army’s case, that question is met with a deathly silence.

Further to s1(1) of the Freedom of Information Act 2000:

1. How many board (‘jury’) members must sit on a court martial board where the defendant is charged with rape?

2. In the case of, for example, a Junior NCO, being charged with rape: what ranks would the court martial board comprise?

3. What rules, if any, are there mandating the minimum number of females on a court martial board in a rape case?

4. What rules, if any, are there mandating the minimum rank of females on a court martial board in a rape case, compared to other board members?

5. How many rape cases were reported to Royal Military Police in each of the years 2002-2012?

6. How many rape cases proceeded to courts martial in each of the years 2002-2012?

7. In how many rape cases in each of the years 2002-2012 did the Service Prosecuting Authority, or its pre-Armed Forces Act 2006 antecedents, secure a conviction?

My preferred format to receive this information is by electronic means. If one part of this request can be answered sooner than others, please send that information first followed by any subsequent data. If you need any clarification of this request please feel free to email me. If FOI requests of a similar nature have already been asked could you please include your responses to those requests.

I note that under s16 of the Act, it is the MOD's duty to provide advice and assistance, so far as it would be reasonable to expect the department to do so, to persons who make requests for information to it. Accordingly, if the MOD considers attempting to block release of information under s12 of the Act (exemption where cost of compliance exceeds appropriate limit), please a) provide a breakdown of costs, and b) explain what information *would* be releasable within the appropriate limit according to the department's purported calculations. I would, in that situation, apply for internal review, and ultimately apply for decision by the Information Commissioner, per s50 of the Act.

I would be grateful if you could confirm in writing that you have received this request, and I look forward to hearing from you within the 20-working day statutory time period.

Regards,

L Mowday
Ms