Victims of crimes committed by armed forces personnel to have say in justice

For the first time, there will be a requirement to consider the views of those reporting a crime allegedly committed by a member of the armed forces when deciding whether a case should be dealt with by the civilian or military justice system. 

Prosecutors would have to consider the preference of those who report a crime under a revised Joint Protocol being published today at the start of an eight-week public consultation. 

The Armed Forces Act 2021 inserted provisions into the Armed Forces Act 2006, which require the Crown Prosecution Service (CPS) and Service Prosecuting Authority (SPA) to agree and consult on a protocol that prosecutors must follow when deciding which authority should have jurisdiction in cases involving allegations of criminal conduct made against serving members of the armed forces said to have occurred in England and Wales. 

The CPS already handles the prosecution of military personnel when civilian victims or property are involved. The consultation ends on 20 April and the final Joint Protocol will be published later this year.

Max Hill KC, the Director of Public Prosecutions (DPP), said:

“In cases where military personnel are involved, providing victims with a say in which prosecution body takes forward their case gives them a voice in what can be a very challenging and life-changing experience. 

“The new proposal requiring prosecutors to consider the victim’s preference is a step in the right direction for both the civilian and military justice systems in our efforts to see more perpetrators brought to justice. 

“As part of our service to all victims we have safeguarding measures to protect them as they go through the criminal justice system, including special measures such as giving evidence behind a screen or asking for public galleries to be cleared while they give evidence. 

“As essential as it is to ensure victims are supported throughout the process, so too is ensuring the rights of defendants, which is why the new proposal will require the approval from senior legal managers.”

Jonathan Rees KC, Director of Service Prosecutions (DSP), said:

“The Service Justice System and the Civilian Justice system have concurrent jurisdiction over members of the armed forces who are alleged to have committed criminal offences in England and Wales. The same applies in Scotland and Northern Ireland.

“In order to assist prosecutors to decide which system is best placed to deal with a particular case, a revised protocol has been drafted for England and Wales which includes guidance as to the factors to be taken into consideration in accordance with the overriding principle, namely the promotion of fair and efficient justice. This draft revised protocol will be the subject of a public consultation process.

“Careful thought has been given to the numerous factors that have been included in the draft revised protocol to reflect the fundamental differences between the two jurisdictions and to take account of the best interests of victims and children, and relevant considerations in cases involving allegations of domestic abuse, sexual offending or child abuse.”

Crimes, including rape and serious violence, that only involve military personnel are ordinarily prosecuted by the Service Prosecuting Authority (SPA) at a special military court known as the Court Martial, regardless of whether they occurred on military property or not.

A further change being consulted on is that if a member of the armed forces is alleged to have committed murder, manslaughter, rape, or some types of sexual assault, or if they are under-18, then prosecutors from both authorities have a mandatory duty to consult each other before deciding who should handle the prosecution. 

Allocating a case to either the CPS or SPA does not necessarily mean charges will be brought against a suspect. Sentencing remains a decision for the courts. The maximum sentences remain the same in the civilian and military courts.