Retracted Complaint to RMP - Can the Army still prosecute?

Discussion in 'Army Pay, Claims & JPA' started by paperwaster, Dec 18, 2007.

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  1. If a soldier made a complaint to the RMP regarding an infraction by another soldier and subsequently withdrew the statement (voluntarily) can the Army still follow the allegation through to charge?

    If they can (which I suspect is the case) then can the Army/RMP use the statement that was retracted as part of their case?

    If it goes to Court Martial etc then can the person who initially made the complaint, and subsequently withdrew it, refuse to testify/refuse to comment at Court Martial?

    Sorry to be so serious so close to Christmas but your advice would be greatly appreciated...
     
  2. As a matter of practicality rather than law - the answer is no. The prosecution would have no real prospect of success and therefore should not be mounted in the first place. As to the law - the witness statement itself is inadmissible in criminal proceedings as it is hearsay. A witness may be forced to attend by the prosecution - they have powers to do so - but they never use them. The reason is that the witness is likely to prove unhelpful to their case. On the exceptionally rare occasions witnesses find themselves in this situation - they need to tread a fine line lest they become an accessory to the crime themselves or be charged with perverting the course of justice. Most of them in examination by counsel are mysteriously unable to remember what happened in any detail. In a proper case - if the key witness does not come upto proof the judge/president should throw out the prosecution there and then.

    DISCLAIMER: I am not a lawyer.
     
  3. RMP. "Practicality"? No, sorry, makes no sense.

    Once a complaint has been made, they can kick off their investigation. They should not be permitted to use the original complaint in evidence before a summary trial or court-martial. However, if they dig up enough other evidence to justify charges (the same as or different from the complaint) then they can (and probably will) try it on.

    Edited to add: I know you can be summonsed to give evidence in any British court as a witness. They cannot force you to repeat your complaint but you can be asked to authenticate any complaint (or other witness statement) you make and questioned as to why you no longer stand by it.
     
  4. Well as I understand it under the terms of the legal reforms decisions to prosecute are now taken independently.
     
  5. You really haven't a clue have you. 'They' only present the evidence to the APA and unit CO and 'they' then try it on as you so nicely put it. So remember if you are shafted it is by your own CO, not the RMP.

    If you require clear advice on witholding witness evidence at Court Martial and getting away with it, refer to the transcript of the Baha Mousa trial.
     
  6. Don't get me wrong - I'm no legal beagle, but a complaint CAN be followed through even when the complainant has retracted, if it is in the public interest.

    These tend to be the more serious offences though, off the top of my head GBH is one- come on you feds speak up!!
     
  7. I think that this is correct. Certain categories of offence do not require a *complainant* eg a murder. :) It is nevertheless a mistake for witnesses to think that the process of justice is subject to their personal whims or choices. It is not. And there can be serious penalties for obstructing the process in any way at all.
     
  8. In my expeirience it depends on what the 'accused' unit want to do. The CO is after all ultimately responsible for discipline in his regiment.

    RMP are that busy nowheredays, that in the event that a complainant retracts a statement, (Provided they are satisfied he is not withdrawing it under duress), they distribute a final negative report as quick as their fingers can type one.

    The enquiry then falls off the tracker and therefore off the radar.

    As a former POM, it was not unusual in incidents like the one described for the Adjt, at the request of the CO to formally request that statements be recorded from the witnesses and provided to them, which they in turn send to their Divisional legal service, for advice.

    For example, it is not uncommon where one soldier assaults another soldier, (Both of equal rank), which results in minor injuries.

    The aggrieved makes a complaint, but later provides a 'withdrawal' statement. We are powerless to proceed with our enquiries and it's terminated. Only in cases where serious injuries occurr would we still interview and publish a report. Even then ALS will refer it to APA, who are unlikely to prosecute without a complaint. (But at least the case will have, and will be seen to have gone through the Military Criminal Justice System).

    The CO/Unit discipline chain may be themselves left in a difficult position.

    The suspect may for example make a habit of going around punching people and on each occasion the complainant miraculously withdraws his complaint. The Unit are/may be concerned that at a later date, the will be left open to a suggestion that soldier A was bullied and that they, the unit were aware of an incident(s) involving soldier B, but failed to act upon it/them.

    Quite often, in the interest of unit cohesion and to demonstrate that this sort of behaviour will not be tolerated, the unit go it alone (In conjunction with advice from ALS) and will charge under the AA55. If the soldier is found guilty or if he is found to be innocent makes no difference, the CO will have demonstrated that that behaviour will not be tolerated and that the allegation has been tested by the MCJS.

    I also think that there is some merit in being dealt with formally, rather than not being dealt with at all. If your not dealt with, there will always be that nagging question following you around, 'Did he do it'.

    If he is tried and aquitted/found not guilty, there is no doubt.

    No legal system is perfect and until someone comes up with something else, thats the way it will stay.

    And it still amazes me how many people think the RMP charge. Clearly those that do, have only ever experienced the RMP and MCJS thorugh someone elses eyes. Or have listened to all those nstay rumours.

    Anyway that's my pennies worth.
     
  9. Mate - this is ARRSE - what did you expect?

    Top post by the way. Bet that's not the end of this discussion though...
     
  10. Thank's,

    I am obviously more coherant when sober, hiccup, bubbles....

    On a serious note though, when an individual makes a statement and later retracts it, those statements are still available to the court, the Prosecution and Defence. The person making it can be compelled to attend any DCM/GCM or Civilian Standing Court to give evidence by way of a subpoena. UK civilians too. (Although like a previous respondent, in 22 years, I have never seen it. I have however seen it threatened, which usually does the trick). CSC, DCM and GCM are the only 'compliant' military courts in the land.

    In fact if your serving, I think (And this is the real grey matter hurting now), that there is something in the AA55, which compels military witnesses to give evidence. (As their duty). This might, and probably will change soon with the introduction of the Tri Service Discipline Act.

    Any convictions at trials in these compliant courts, will warrant an entry on the Police National Computer (PNC) and if they have not already been recorded, result in the convicted persons DNA/Fingerprints being placed on the National databases.

    Summary dealing, is almost like an employment tribunal, but with more teeth, but it is not a compliant court. At least not yet. But convictions at this level are still held on file and can, but not exclusively preclude a former serviceman, employment in a job, which requires a degree of vetting.

    In ending, in my previous post I referred to we and us, read RMP, which is equally wierd, cause as of recently, I am no longer a member. I will get used to it soon, I promise.
     
  11. The criteria my Coy uses as to report or not if a complaint is withdrawn is pretty simple. We only generally do it in instances of bodily harm / domestic violence - if RMP NCOs who attend the scene see evidence of bodily harm (you cannot consent to this) then generally we will proceed with reporting the offender to his or her chain of command. Its common in domestic violence cases as we know from historical data that

    a. its hard to get a victim to prosecute.

    b. Its statistically likely that there has been numerous incidents (UK average is 30+) prior to it coming to the attention of the police.

    c. It gives the CO a chance to direct rehablitative action whilst armed with the facts prior to a more serious incident occuring.

    Whether CO / ALS / APA take up the matter and prosecute is a matter for them. RMP are a reporting agency only. Although its not unusual for us to follow up with units for repeat offenders and suggest that administrative action needs to be taken to address a pattern of offending behaviour to ensure that the soldier is rehabilitated or discarged. One of the lawyers on the site can take up the baton as to what happens once the report goes up. I could tell you what I see from my perception but not my area of expertise so wouldn't want to mislead.
     
  12. Yes the investigation still continues, if its in the best intrest of good order and military blah blah blah.

    When you gave your statement of complaint, you would have signed a decleration on the rear (or seperate form), "I consent for this statement to be used in Military/Civil proceedings" or words to that effect.


    Its a decision not made by the RMP (as we do not charge as its allready been pointed out on this thread) but one by the APA and Unit CO.

    My adivice is, don't get caught fella