New Clause 5 — Requirement to publish statistics on sexual assault and rape

Representation of the People (Proportional Representation) (House of Commons) – in the House of Commons at 4:15 pm on 16th December 2015.

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‘(1) Each service police force must collect and publish annually anonymised statistics on the number of allegations of sexual assault and rape made by and against members of the armed forces.

(2) The Director of Service Prosecutions must collect and publish annually anonymised statistics on the number of cases involving allegations of sexual assault and rape made by and against members of the armed forces, including but not necessarily limited to—

(a) the number of cases referred from the service police forces;

(b) how many of these cases were prosecuted; and

(c) how many convictions were secured.”—(Mr Kevan Jones.)

Brought up, and read the First time.

Photo of Kevan Jones Kevan Jones Shadow Minister (Defence)

I beg to move, That the clause be read a Second time.

Photo of David Crausby David Crausby Labour, Bolton North East

With this it will be convenient to discuss new clause 6—Removal of Commanding Officer’s discretion to investigate allegations of sexual assault

‘(1) Schedule 2 of the Armed Forces Act 2006 [Schedule 2 offences] is amended as follows.

(2) In sub-paragraph (12)(at), leave out “3, 66, 67 or”

New clause 7—Civilian investigations and prosecutions relating to murder, sexual assault, and rape

‘(1) The Armed Forces Act 2006 is amended as follows.

(2) After section 118 [Duty of service policeman to notify CO of referral to DSP] insert—

“118A Civilian investigations and prosecutions relating to murder, sexual assault, and rape

(1) Criminal investigations into allegations of murder, sexual assault, and rape by and against members of the Armed Forces shall be undertaken by the relevant civilian police authorities.

(2) Criminal prosecutions of charges involving murder, sexual assault, and rape by and against members of the Armed Forces shall be undertaken by the Crown Prosecution Service.””

Photo of Kevan Jones Kevan Jones Shadow Minister (Defence)

It gives me great pleasure to speak to new clauses 5, 6 and 7. I apologise to members of the Committee who are here, because they have heard many of these issues discussed before. In the replies that we got in Committee, undertakings were given that some of those issues would be looked at. These are mainly probing amendments, but I will wait to see what the Minister brings forward.

New clause 5 is about the service police gathering statistics on serious sexual assaults and rapes. For the civilian police, there is no statutory obligation to do this, but it is now best practice, and individuals are able to look at trends in different police forces. In Committee, we were told by Kris Hopkins that the service police already collect such statistics and that they can be obtained through the use of parliamentary questions or freedom of information requests.

I give credit both to the Ministry of Defence and to General Sir Nick Carter, who gave evidence to the Select Committee. I think he is genuinely committed to changing attitudes in the Army, to ensure not only openness and transparency, but, as he has outlined in his introductory leadership guide, zero tolerance of anyone who steps outside of the law. He has also been commended for his efforts not only to recruit more women to the Army, but to ensure that they progress through the armed forces to more senior positions.

Evidence in the 2005 report shows that 39% of servicewomen questioned said that they had faced harassment, and that cannot be right. It also notes that 33% said that they had faced unwelcome attempts to talk about sexual matters or had felt uncomfortable in some conversations. Why is it important to publish such statistics? Clearly, they have already been collated. I know that the Ministry of Defence moves at a snail’s pace and occasionally needs a push to come up with best practice, but I cannot see any reason why the statistics should not be produced annually, given that they are already available. Doing so would enable us to look at trends—that has been important in civilian police forces—and at whether the initiatives to bear down on unacceptable behaviour in all three services are actually having an effect.

Members should not have to ask a parliamentary question or have to make a freedom of information request in order to get that information. I cannot for the life of me understand the reluctance towards making it available, apart from the usual conservativism—with a small “c”—and snail’s pace of the Ministry of Defence. Let us be honest: if the statistics are published annually, I assure anyone who is watching that the sky will not fall in. I think it would send a proper and clear message. It is important that what General Carter and others are saying about advancing and promoting women, and about bearing down on unacceptable behaviour, is scrutinised properly.

New clause 6 relates to the commanding officer, who is in the unique position of being able to decide whether an allegation of sexual assault should be referred to the military police or to the civil police for investigation. The Select Committee had a long discussion about this issue and I certainly feel that it puts a commanding officer in the position of making judgments when he or she might not be in full cognisance of the facts, so a referral to the police would be a better approach. However, General Carter indicated to the Select Committee that commanding officers are recommended to take legal advice before deciding how to deal with such cases. One way to reach compromise would be to codify an obligation on commanding officers to take legal advice in all instances before taking such a decision.

New clause 7 deals with the serious issues not only of violent crime, but of rape. I tabled the new clause to raise the question of whether the military police have the capacity or expertise to deal with serious rape or murder cases. I accept what the Minister said in the Select Committee about the great advances made in training and support for the military police, as well as the techniques available. There has been some movement on things that are done as a matter of course by the civilian police.

We discussed the matter in the Select Committee, but I repeat that some of the cases, especially rape cases, are complex. Civilian forces have developed techniques, such as the use of rape suites for victims. The volume of cases dealt with by civilian forces means that they are more capable not only of supporting victims when they come forward, but of investigating such serious sexual assaults or rape. Thankfully, the number of instances dealt with in the armed forces is low. The Metropolitan police and other large forces clearly deal with a large number of cases, and they have both expertise and officers who have dealt with different types of sexual assault and rape. Such individuals or police forces would be better placed to ensure that a victim in the military received the same high standards and support that we would expect for the victims of such crimes in civilian life.

Photo of Jim Shannon Jim Shannon Shadow DUP Spokesperson (Health), Shadow DUP Spokesperson (Transport), Shadow DUP Spokesperson (Equality) 4:30 pm, 16th December 2015

I wish to ask a question about new clause 7. I agree with the shadow Minister, who has very carefully and cautiously outlined the issues. In the past, there have been examples of women who have been abused and raped, which has led to suicide, trauma or depression. These are very important matters. Will the Minister confirm that, as part of an investigation within the existing process, an investigating officer has the power to call any soldiers whatever, male or female, who may have been present when something took place, and that none of them can say, “No, we won’t do that”? I want to make sure that there is a full investigation, and that the person assaulted is given the necessary protection.

Photo of Kirsten Oswald Kirsten Oswald Shadow SNP Spokesperson (Armed Forces and Veterans)

It is vital that all matters relating to allegations of or concerns about serious and complex crimes, including sexual assault, rape and murder, are handled with the utmost seriousness, so it is important that such cases are dealt with by the appropriate authorities and with the benefit of the best legal advice. Commanding officers in our armed forces are men and women of skill, professionalism, grit and integrity, but it may simply not be fair to expect them to possess the same level of specialist investigatory skills as those with a professional background in such skills. We would not expect that of any other group. If the victims and alleged perpetrators are dealt with by specialist authorities, everyone will be aware that such matters are handled, as we would all hope, with the appropriate structure, uniformity of approach, transparency and professional best practice.

The maintenance and publication of statistics on sexual assault and rape are key. It is simply not possible or desirable to make assumptions about the level or severity of allegations, prosecutions or convictions. We can only know such details via robust, consistently formatted and regularly produced statistics that are put in the public domain. We would wish to see improvements in the 2017 survey relating to sexual harassment, compared with 2014.

Releasing such statistics is part of our duty of care towards service personnel. It was interesting and heartening to hear in the Select Committee that some of that happens anyway, but it is not approached in a uniform or consistent manner across all services. Without a uniform approach that has the same definitions, frameworks and publication dates, we cannot reasonably keep this matter under review, which we absolutely should do to ensure that we continue to work towards transparency, clarity and improvement for the benefit of all service personnel.

Photo of Mark Lancaster Mark Lancaster The Parliamentary Under-Secretary of State for Defence

I am pleased that Mr Jones has returned to these proposals and I welcome the opportunity to discuss these matters before the Committee.

Allegations of sexual assault and rape should never be treated lightly. It is important to us that members of the armed forces are treated well and that we foster an environment in which people have confidence that unacceptable behaviour is not tolerated and that allegations of such behaviour are dealt with. It is important that we are active in driving that forward.

The hon. Member for North Durham is right to raise the publication of statistics. During the Select Committee consideration of the Bill, my hon. Friend Kris Hopkins set out the current arrangements in the service justice system for the collection and publication of crime statistics. I will repeat them for the benefit of the Committee.

The service police crime bureau keeps records for all three services of allegations of rape and sexual assault that are made to the service police. That information is released regularly in response to parliamentary questions and freedom of information requests. In the case of the latter, the information is uploaded to the MOD’s online publication scheme, where it can be freely accessed. Let me be clear that I want to explore how we can be more proactive in releasing this information.

The service police crime bureau has been liaising with the Home Office police forces to analyse crime recording practices and rules to identify methods of improving crime recording. As a result, the bureau is working to establish a post of crime registrar, similar to that found in all other police forces, with a remit to scrutinise and audit the recording of crimes on the service police investigation management system. That will lead to further improvements.

The Service Prosecuting Authority records, for each year, the number of cases referred to it, the number of cases in which charges are preferred and the number of cases in which a conviction is secured. The Military

Court Service publishes on the internet, on a regular basis, details of every case that is heard at the court martial, including offences, outcomes and punishments. There is, therefore, a clear picture of the extent of this type of offending within the services, giving a strong indication of the proportion of cases referred from the service police to the Service Prosecuting Authority that were prosecuted and of the conviction rate in such cases.

As General Sir Nick Carter, the Chief of the General Staff, said when giving evidence to the Select Committee on the Bill:

“In terms of publishing facts, figures and statistics, I am very solidly behind trying to do that.”

He said that the legislation goes far enough at the moment, but that we must do more, and I agree. Although I am not convinced that it is necessary or appropriate to set out requirements in legislation for the publication of such data, I am determined to make the data that we publish robust, consistent and accessible. To that end, I am actively considering how best to publish the data as an official statistic.

Turning to new clause 6 on the commanding officer’s discretion to investigate, I reassure the Committee that the armed forces already have procedures in place to ensure that allegations of sexual assault are handled appropriately. The commanding officer’s duties in that respect are clear. The starting point is that if a commanding officer becomes aware of an allegation or evidence that would indicate to a reasonable person that a service offence may have been committed by someone under his command, he must ensure that it is investigated “appropriately”. That is a specific statutory duty under the Armed Forces Act 2006. The commanding officer must therefore refer the matter to the service police if it would be appropriate.

The service police can, and do, act on their own initiative, even if a commanding officer does not think it appropriate to ensure that they are aware of the case. For example, the service police could be approached by a victim or a witness, they could come across an offence while patrolling, or the civilian police could become involved and pass them the case.

Almost all of the large number of sexual offences under part 1 of the Sexual Offences Act 2003, including rape and assault by penetration, are already schedule 2 offences. If a commanding officer becomes aware of an allegation, or of evidence that would indicate to a reasonable person that one of those offences may have been committed by someone under his command, he must report that to the service police. We must consider whether a commanding officer should have any discretion over whether to report an allegation of sexual assault, exposure or voyeurism to the service police, in circumstances where a victim or witness does not report the matter to the service or civilian police, and when the service police are not otherwise aware of it.

Importantly, before a commanding officer takes command, he receives training in how to exercise his powers under the Act, and he has access to legal advice 24 hours a day, seven days a week. As the Chief of the General Staff, Sir Nick Carter, made clear, there is a specific requirement in the manual of service law that a commanding officer is to take legal advice when sexual assault, voyeurism or exposure have been alleged. The manual has been amended to make specific mention of those offences in the section on “deciding how to investigate”, and it states that there should be a presumption that the commanding officer will normally ensure that the service police are aware of an allegation of such an offence.

Crucially, although it will rarely be appropriate for the commanding officer not to refer an allegation of sexual assault to the service police, the offence is so wide that I consider it right for the commanding officer to have some discretion, taking into account the wishes of the victim. I fear that an unintended consequence of the new clause may be to discourage some victims from coming forward, since the matter of reporting to the police will be taken out of their hands. The victim, of course, retains the ability to report directly to the service police. I believe that there is already a robust framework and that it is not necessary to impose on commanding officers a statutory duty—which does not apply to any other employer—to refer every allegation of sexual assault and the other offences covered by the new clause to the service police, regardless of what the victim may want.

New clause 7 deals with civilian investigations into serious offences, and would require all investigations into allegations of murder, rape and sexual assault by and against service personnel to be undertaken by the civilian police, and all prosecutions for such offences to be undertaken by the civilian Crown Prosecution Service. The service police and prosecuting authority have the necessary expertise and independence to investigate effectively and prosecute serious offences, including murder, rape and sexual assault by and against service personnel. The service justice system has been scrutinised by the UK courts, and in Strasbourg, and has been held to be compliant with the European convention on human rights for investigations and prosecutions in the UK and abroad where the civilian police do not have jurisdiction.

The service police have been held by the courts to be structurally, and in practice, independent from the chain of command, and they are trained and able to carry out investigations into the most serious offences at home and abroad. All prospective members of the special investigation branch, which investigates serious crimes, must pass the serious crime investigation course before being selected for that unit. Officers receive specialist training on the handling of sexual offences, investigative techniques, forensic awareness, dealing with witnesses and suspects, the preservation of evidence, and interaction with victims.

Selected members of the service police attend a range of specialist and advanced detective training at the Defence College of Policing and Guarding, or externally with the College of Policing or training providers accredited by that college. At the Service Prosecuting Authority, prosecutors are trained to prosecute serious cases effectively. For example, prosecution of serious sexual offences requires attendance on the CPS rape and serious sexual offences specialist training course, and the SPA ensures that decisions on charging are taken only by prosecutors who have completed that training.

The prosecutors protocol of 2011 between the Director of Public Prosecutions, the Director of Service Prosecutions, and the Defence Secretary, recognises that any offence can be dealt with by the service authorities. The main principle in deciding who acts is whether the offence has any civilian context, especially a civilian victim. The protocol provides that cases with a civilian context are dealt with by the civilian criminal justice system.

I should also say something about independence, both of the service police and the Director of Service Prosecutions. This is important, because I want to make clear that there is no room for interference in investigations. The service police have been held by the courts to be structurally, and in practice, independent from the chain of command for investigative purposes. Like any police force, it is recognised that there is a need for arrangements to be in place to ensure that the independence of an investigation is not compromised, or perceived to be compromised. For example, it is recognised there are times when a particular service police force should not investigate. There is a tri-service investigations protocol, which provides for another service police force to carry out an investigation where a service police force would otherwise be investigating its own personnel.

With regards to the independence of the Director of Service Prosecutions, he is an independent civilian office-holder exercising statutory powers under the superintendence of the Attorney General. The Service Prosecuting Authority is created by statute, with three main elements. The first element is the creation of the office of Director of Service Prosecutions and his appointment by Her Majesty. The director is appointed on the basis of fair and open competition. The second element is the provision for who may act on his behalf. The Director specifies the lawyers who may act on his behalf. The third element is that the necessary statutory powers in relation to prosecutions in service courts are given to the Director personally, and not to the chain of command.

I believe that the service police and the Service Prosecuting Authority have the necessary expertise and independence to investigate effectively and prosecute the full range of offences. It is crucial to remember that, given that service personnel are subject to the provisions of the Armed Forces Act wherever they serve in the world, service police remain able to investigate in these areas where their civilian counterparts may not. This ensures that our personnel are dealt with fairly and consistently. I am confident that we do not need to legislate further on these matters. On that basis, I hope the hon. Member for North Durham will withdraw his amendments.

Photo of Kevan Jones Kevan Jones Shadow Minister (Defence) 4:45 pm, 16th December 2015

I thank the Minister for his reply. I was not wanting to question the independence of the military service police, but there is ongoing concern about its capacity and expertise. One way forward, on which the Ministry of Defence is moving very slowly, is the independent inspection of that force.

On the commanding officer, I hear what the Minister says. When General Carter came before the Committee, people were reassured that in practice allegations are taken very seriously and that when victims come forward legal advice is not only available but referred to. In saying that, if it is not going to be in the Bill that commanding officers should take legal advice before deciding on whether to take forward or dismiss a complaint, the services perhaps need to consider whether it should be codified through some kind of internal process.

On the publication of statistics, it is welcome that common sense has finally blossomed. The Minister is right that statistics are available. I cannot think he has anything to hide by not publishing them. I respect his commitment to come up with a system to publish them annually. I accept that perhaps more work needs to be done on the format and where they are produced. With the passage of the Bill I will be looking, as I am sure will fellow members of the Committee, to see how that advances. If I may give him a word of advice, in my experience he should insist on a timeline. Otherwise—no disrespect to some very able civil servants in the MOD—it might get pushed off into a siding and, if he leaves his post, might not be not picked up by his successor. This is important. Neither the military nor the MOD has anything to fear from producing these figures, and it would add to the good work being done by the MOD and the three services to address these issues. With those comments, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.