§ The Solicitor-General (Ms Harriet Harman)
My right hon. and learned Friend the Attorney General has made the following ministerial statement, 14 June 2004,Official Report, House of Lords, columns WS 22–24:
"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 becomes 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 two years imprisonment) or a general court martial (a Judge Advocate and five 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.35WS
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, 8 June 2004, Official Report, House of Commons, columns WS 4–5, my right 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 four cases have been referred to the APA which involve Iraqi victims.
I have more details about one case, involving four 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 eight 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 36WS 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."
Three of the four soldiers accused were informed of the charges against them on 14 June. I can therefore confirm that their names are: Corporal Daniel Kenyon; Fusilier Gary Paul Bartlam; and Lance Corporal Mark Paul Cooley and that the charges relate to incidents which allegedly took place on or about 15 May 2003 in a camp just to the west of Basra.
The Attorney-General will give the name of the fourth soldier by written answer once they have been informed of the charges against them.