Accused troops will face more robust courts martial

From The TimesJanuary 2, 2009

Accused troops will face more robust courts martial, says prosecutions chief
Bruce Houlder: plans to merge all three Service prosecutors

Michael Evans, Defence Editor and Frances Gibb, Legal Editor
British troops accused of breaking the law face more rigorous prosecution in wholesale changes to the system for preparing cases for courts martial.

The reforms, being implemented by a criminal lawyer rather than a military figure, come after the collapse of charges over the death of an Iraqi held by British Forces in Basra.

All military lawyers are to have enhanced training in advocacy skills and closer links are to be forged with military police to give a better chance of convictions in serious cases.

The tougher approach to prosecuting members of the Armed Forces who commit crimes is to be initiated by Bruce Houlder, QC, who took over yesterday as the first civilian in charge of military prosecutions. Formerly a top criminal barrister, he becomes independent director of Service prosecutions for all three Armed Forces, with the amalgamation of the separate prosecuting authorities for the Army, Royal Navy and Royal Air Force.

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His reforms are in response to the acquittal of six soldiers and officers charged in connection with the beating and death of Baha Musa, an Iraqi prisoner, in Basra in 2003.

In an interview with The Times, Mr Houlder accused soldiers who gave evidence at their court martial of showing loyalty to colleagues rather than to their regiment, meaning that the trial did not establish who was to blame.

He promised “robust” prosecution of members of the Armed Forces accused of serious crimes but said that there was a significant difference between personnel deliberately flouting the law and “young soldiers acting to the best of their ability in time of war who make a terrible mistake”.

To ensure that appropriate evidence was acquired in every case, Mr Houlder said that he would push for a closer working relationship between his prosecuting authority and the military investigators in the same way that the Crown Prosecution Service liaised with the police in criminal cases.

He has already spoken to the Provost Marshal, who is in charge of military investigations, to improve liaison.

Mr Houlder, 61, defended the record of military prosecutions, saying that the proportion of convictions in courts martial was slightly higher than in civilian trials, but conceded that high-profile failures had tarnished their image. “An unfair impression is given, because of the result of a few cases, that prosecuting authorities have not performed as well as they might, but no one has been able to show that it was the failure of the prosecution service that led to those results,” he said.

The most notable case was the court martial of five members of The Queen’s Lancashire Regiment (QLR) and two from the Intelligence Corps, all charged with offences linked to the death of Mr Musa in British military detention in 2003. Only one, Corporal Donald Payne, of the QLR, was convicted, after pleading guilty to the war crime of inhuman treatment of Mr Musa and other detainees.

In another case, seven paratroopers were found not guilty in 2005 of murdering an Iraqi civilian. The judge advocate criticised the weakness of the prosecution case and the inadequacy of the military investigation.

In the Baha Musa case, Mr Houlder said, there had been evidence of “regimental amnesia” – what the High Court judge in the court martial in 2007 described as “a closing of the ranks”. “Witnesses forgot where their loyalties lay,” he said. “They thought their loyalty lay with the soldiers on trial, not with the regiment as a whole.”

A public inquiry into the death of Mr Musa, led by the retired Lord Justice of Appeal Sir William Gage, is due to start in the next few months. Witnesses have been advised that if they tell the truth they will not face prosecution as a consequence.

Mr Houlder appreciated that the Armed Forces operated in a different environment and he had written to all commanding officers to reassure them that although he had no military background, he was fully cognisant of the special requirements and expectations of an armed forces justice system.

He said that he understood the “paramount importance” of effective discipline in the Services and that there were many offences, such as absence without leave and neglect of duty, that had no place in civilian courts. “I can honestly say I have not faced any expression of resentment about a civilian being appointed to this job,” Mr Houlder said. He has been in office for some months, preparing for his appointment, drawing up a business plan for the tri-Service prosecuting authority and visiting bases in the United Kingdom and overseas, including those in Iraq and Afghanistan.

As part of his strategy for creating a robust, more effective prosecuting authority, Mr Houlder said that he was hoping to persuade the three Service secretaries who are responsible for career structures to allow his team of 40 prosecuting lawyers to serve for three years, to build up experience.

Although Mr Houlder’s appointment started officially yesterday the three separate prosecuting authorities will not be finally merged until October, because of the complexities of the Armed Forces Act 2006 that enshrines his role in law.

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