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Prosecution
of British Soldiers
This
Statement concerns the current position in relation
to prosecution of soldiers and offences involving Iraqi
civilians.
Soldiers
and reservists serving in Iraq, and indeed all members
of the Armed Forces, are subject to military law which
lays down that they are liable to be tried by a court
martial for an offence contrary to English criminal
law. If soldiers do something outside the UK that would
be a crime here, they commit a crime under military
law. The English criminal courts have concurrent jurisdiction
over certain offences, including war crimes, torture
and unlawful killing abroad.
Investigations
of offences alleged to have been carried out by Service
personnel are undertaken by the Royal Military Police
or other Service Police Authority. In the case of the
Army, following an investigation the matter will be
referred to the soldier’s Commanding Officer who
will also receive advice from the Army Legal Services
Branch which will include a draft charge. The Commanding
Officer may decide to dismiss the charge; refer the
charge to higher authority; deal summarily with the
charge (if it is within the CO’s jurisdiction);
or stay proceedings with a view to them being otherwise
dealt with, for example, by referring them to the civil
authorities. The Higher Authority may in turn then refer
the case to the Army Prosecuting Authority. Then the
Army Prosecuting Authority become involved.
The
Army Prosecuting Authority was established under the
Armed Forces Act 1996 and came into existence on 1 April
1997. It acts independently of the military chain of
command. It is subject to the general superintendence
of the Attorney General. I have held regular meetings
with the APA as part of that superintendence. Recently
I and the Solicitor General met with the APA in London
and I and LSLO officials met with the APA in Germany.
If
the APA decides there is sufficient evidence for the
case to proceed (and it is in the public interest to
proceed), they will then decide whether there should
be a district court martial (a Judge Advocate and three
military members with a sentencing limit of 2 years
imprisonment) or a General Court Martial (a Judge Advocate
and 5 members but with no sentencing limits save that
imposed by statute). The court martial system was established
under the Army Act 1955 and is the responsibility of
the Secretary of State for Defence. The APA conducts
prosecutions in courts martial and the normal rules
of procedure and evidence apply.
The
verdict is returned by the military members of the court
martial and the sentence is decided by the military
members and the Judge Advocate together.
Appeal
against sentence or conviction is to the Court Martial
Appeal Court comprised of judges of the Court of Appeal
sitting in the Royal Courts of Justice.
Courts
martial sit in public and are subject to the same rules
on reporting as civilian criminal courts. Thus the Contempt
of Court Act 1981 applies whether the court martial
is sitting outside the UK or not. The Common Law contempt
of court also applies to courts martial.
In
his recent statement, Official Report [Commons] 8 June:
Columns WS 4-5, my Rt. Hon. Friend, the Minister for
the Armed Forces (Mr Ingram) referred to 75 cases being
investigated into civilian deaths, injuries or alleged
ill treatment of Iraqi civilians. Of those 4 cases have
been referred to the APA which involve Iraqi victims.
I
have more details about one case, involving 4 defendants,
referred to the APA which is detailed below. In relation
to the remaining three cases with the APA, they are
actively being considered at the moment.
The
APA is aware of at least four other cases which are
likely to be referred to them in the very near future.
This will make a total of 8 cases out of the 75 which
have been referred to them.
As
I have previously announced, there is in addition a
further case which was brought to my attention by the
APA but which had not been formally referred to the
APA. It concerns an alleged unlawful killing of an Iraqi
in the course of an arrest. This case was brought to
my attention after charges were dismissed by the soldier’s
Commanding Officer. This means the case cannot be tried
by court martial, but I have referred it to the CPS
who have asked the Metropolitan Police for assistance
in collecting further evidence. Any decision in relation
to this prosecution will be taken by the CPS in accordance
with the Code for Crown Prosecutors.
The
APA directed trial on 11 June 2004 against four soldiers
from the Royal Regiment of Fusiliers on charges relating
to alleged abuses of Iraqi civilians. The charges against
the four include assault, indecent assault which apparently
involves making the victims engage in sexual activity
between themselves, and a military charge of prejudicing
good order and military discipline. This case has previously
been referred to in the press. The case concerns conduct
alleged to have occurred whilst the civilians were being
temporarily detained, but not in a prison or detention
facility. It involves photographic evidence developed
in this country and referred to the UK police. A date
for the trial has yet to be set by the Military Court
Service. Any trial will be held in public.
As
and when any further charges are laid against soldiers
arising from incidents in Iraq I will inform the House
of these charges by way of written statement and give
all the information it is appropriate to give in advance
of any hearing.
To
assist the House further I have made arrangements for
three papers to be placed in the House Library. These
deal with (a) procedures in relation to courts martial,
(b) the contempt rules and how they apply to courts
martial and (c) my Ministerial superintendence of the
Army Prosecuting Authority.
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of Defence is not responsible for the content or availability
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