Rape trials – Court Martial vs Criminal Justice System

June 25, 2020

By Caroline Abraham

The Armed Forces Act 2006 created a system for the tri-service administration of justice within the Court Martial.

Prior to its enactment, certain crimes including murder, manslaughter and rape committed by service personnel in the UK did not fall within the jurisdiction of the Court Martial, instead, it remained destined for the Crown Court under the “civilian system”.

The legislation, it would seem, was passed on the grounds that there would be rare circumstances in which the court martial systems would conduct these trials. The overriding objective was to assist with the administration of justice.

Despite this, recent trends would indicate that the majority of rape trials involving military personnel are heard within the military court, as the rule rather than the exception.

This trend is concerning, particularly when rape cases heard at trial in the military courts result in a lower rate of conviction than in the civil system.

These issues were explored in the Services Justice Review, commissioned in 2017, and conducted by HHJ Shaun Lyons. The review considered whether proper safeguards are in place throughout the life of a case, from investigation and preparation to determination at final hearing.

The review advocated a return to the previous position. There being concerns, for instance, that rape cases tried in the military courts are investigated and prepared by Service Police and prosecutors who lack the experience, expertise and independence.

The Ministry of Defence, however, adopted an opposing position. It announced in February that it would not act on the proposals within the review and would maintain jurisdiction to try the most serious offences when involving military personnel.

The spotlight has returned to the issues raised within the Services Justice Review, following the legal challenge launched by three service women, who claimed they were victims of rape whilst serving in the armed forces. This legal challenge has resulted in a reconsideration by the Defence Secretary. It is hoped that this is a step in the right direction, for victims of rape in the armed forces to be provided with proper safeguards, protecting against re-victimisation and trauma, to ensure justice is truly administered.

Caroline Abraham is an experienced criminal practitioner who has been briefed to appear and advise, on behalf of the prosecution and defence. Caroline joined Exchange Chambers as a tenant in December 2019.