Exclusive: A damning report written by a serving officer has found that the army is "rarely transparent or accountable, and frequently unlawful" in the way it handles complaints and discipline.
The report, seen exclusively by Channel 4 News, was written by an army officer for submission to the Defence Select Committee as evidence for its investigation into how the army handles complaints and disciplinary hearings. It finds the army guilty of exercising power without responsibility.
"A bullies' charter"
The report calls for a "root and branch overhaul" of the internal sanctions regime known as AGAI 67. It claims the systems makes the MoD "the only UK employer with vast powers of sanction, suspension and dismissal, without independent oversight, or checks and balances".
Referencing specific cases the report says AGAI 67 has "no safeguards to protect junior personnel from the chain of command... and nothing to prevent dishonest commanders from pursuing vendettas against those over whom they exercise power".
It lists powers commanders have under AGAI 67, including the denial of legal representation, refusing witnesses, protecting favoured colleagues, and "comprehensively stacking the deck in the chain of command's favour".
It alleges that these "proceedings are 'kangaroo courts' - biased and partisan tribunals bounding inexorably towards predetermined conclusions".
The officer alludes to cases whereby commanders have used the system to "harass service personnel for having the temerity to complain about being abused by that chain of command". It claims that Royal Navy and Royal Air Force lawyers questioned the legality of using such sanctions and refused to join the Army in imposing them. The officer believes that the system is unlawful because it breaches Article 6 of the European Convention on Human Rights.
The report states that equivalent civilian disciplinary systems are governed by ACAS rules and suggests there is a compelling case that ACAS, in conjunction with the Army's complaint's commissioner, should rewrite the AGAI 67 system.
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Currently a member of the armed services facing disciplinary proceedings more serious than those above the level of an AGAI 67 sanction can be dealt with by what is known as a summary hearing.
The report finds that these "secret court" proceedings are also not compliant with Article 6 of the European Convention on Human Rights, because the commanding officer acts as judge, prosecutor and juror, leaving the accused soldier without legal representation, and often unaware of his/her legal rights and under pressure not to "rock the boat". It calls for a fair trial system to be brought in to replace the current system of summary hearings.
Those facing a summary hearing are supposed to be advised of their rights to demand a full court-marital. However, the report questions the MoD's defence that soldiers make informed decisions to opt for summary hearings, claiming that the environment the decision is made in is not conducive to a genuinely free choice.
It documents evidence that the summary hearings process has been used to coerce vulnerable junior personnel to relinquish their right to court martial; to cover-up misconduct by favoured personnel and to mislead soldiers on the implications of a guilty finding against them, which Channel 4 News revealed was a problem last month.
It alleges that conviction rates in summary hearings is 90 per cent, compared to a 50 per cent conviction rate for court martials.
It alludes to a colonel from the army legal services who allegedly joked during a meeting at the Joint Services Command and Staff College in April, "If soldiers knew about the difference in conviction rate, they would never elect for summary hearing" He noted that "this would 'break' the courts martial system".
It also alleges that summary hearings have been used to protect favoured personnel, by "going through the motions of prosecution, with acquittal as a fait accompli"
The report's author concludes "I would argue that the military's behaviour should be transparent, accountable and lawful - and that at present it is rarely transparent or accountable and frequently unlawful. While a parallel legal system is necesary to satisfy the requirements of both the military's unique role (the application of lethal force on behalf of the nation) and its potentially expeditionary nature (ie outwith the jurisdiction of the UK courts), the service justice system which administers this should be both independent and professional."
Armed forces ombudsman
When it comes to dealing with complaints by service personnel, the report is also critical, finding that the current Service Complaints Commissioner (SCC) does not have the power to carry out her role of investigating complaints brought by service personnel effectively.
The role of the SCC was established in 2006 in response to a report into the deaths of four soldiers at Princess Royal barracks in Deepcut between 1995 and 2002. That review concluded that a culture of bullying and abuse had led to the deaths of the troops. However, this latest report alleges that "the lessons of Deepcut .. have been ignored by the Ministry of Defence."
It quotes one victim, whose complaint is still being stalled by army HQ, who describes the system as "not only useless, but worse than useless -- if I knew that by submitting a complaint I was laying myself open for further mistreatment, I would have simply given up at the outset".
The report calls for the SCC to be given the powers of an "ombudsman, with the financial and staff resources to investigate cases independently, make binding decisions, and enforce financial penalties for both the original misconduct and delayed complaint handling" by the MoD."
Among the powers suggested in the report is that the SCC should be the military equivalent to the Independent Police Complaints Commission (IPCC), having the power to investigate complaints independently and compel evidence from witnesses. It suggests the armed forces should have first jurisdiction with the option to dismiss "meritless complaints", but that a complainant should have the right to appeal that decision direct to the SCC.
To prevent departments covering up misconduct by stalling cases, the report suggests that a complainant should have the right to call in the SCC to intervene after 28 days.
The report gives case study evidence that under the current "impotent" state of the SCC office, the army is "willing to cover-up mistakes, bully personnel, victimise those who complain, and harass those who are perceived to be 'rocking the boat', in order to protect the power and prestige of the chain of command".
It suggests for these reasons alone, an independent ombudsman would be capable of both "investigating army misconduct" and "imposing penalties on the MoD" for failure and thus the SCC should have the power to make policy recommendations to the MoD.
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06 October 2012
10 August 2012