Boris Johnson is facing a backbench revolt against the government’s rejection of calls for cases of rape in the armed forces to be taken out of the military courts system, where defendants are five or six times less likely to be found guilty.
Prominent Tory MPs Johnny Mercer - a former Army officer who was in charge of legislation on the issue before resigning as a defence minister earlier this year - and Commons defence committee chair Tobias Ellwood are among those expected to break party ranks in a crunch vote on Monday.
The move was a key recommendation of last year’s review of the service justice system (SJS) by judge Shaun Lyons, and was backed in July by a parliamentary inquiry into the protection of women in the armed forces, amid concerns over victim-blaming, fears that a complaint will damage careers and perceptions that military requirements are prioritised over the needs of rape complainants.
But defence secretary Ben Wallace this week rejected the recommendation of the defence sub-committee which conducted the inquiry, whose Conservative chair Sarah Atherton said it was “disappointing” that the minister had failed to act on “clear evidence that the current system is failing to deliver justice”.
Mr Mercer told The Independent that Mr Wallace’s personal intervention ensured that the Lyons recommendation was not included in the Armed Forces Bill, against his own advice and that of senior Ministry of Defence officials.
He said he will vote on Monday to support a House of Lords amendment, opposed by the government, which would create a presumption that the most serious charges against serving personnel will be heard in civilian courts and not courts martial.
After a string of backbench rebellions in recent weeks, it is thought that Tory MPs in double figures may be ready to back the peers’ proposal, while others may put Mr Johnson’s majority in peril by abstaining.
“It was clear to me at the time that all of the officials and myself - as the original bill minister - were of the view that the evidence clearly indicated we should remove serious and sexual offences from the military justice system in order to reassure victims and try to get better outcomes for them,” said Mr Mercer.
“The defence secretary had a different view. He retains that view, as is his prerogative, but he was certainly the only individual in the building who held that view when I left, and I am yet to see clear evidence to back up his position.”
Mr Ellwood said he expected to abstain in Monday’s vote, but urged ministers to accept the changes proposed by the Lords.
“Our sub-committee looked at this very carefully and felt that these matters were best moved to the civilian courts, which have much better experience of dealing with complex cases,” he told The Independent.
“As chair of the defence committee, I strongly urge the government to reconsider this. It is clearly the right thing to do and it is what members of the armed forces would want us to do.”
In law, serious crimes in the armed forces are under the “concurrent jurisdiction” of the military and civilian justice systems and since the Deepcut scandal murder and manslaughter cases have been dealt with in civilian courts.
But the vast bulk of allegations of rape and sexual assault made by female troops are investigated by military police and prosecuted through courts martial, where the “boards” of officers who take the place of the jury in a civilian case are disproportionately male.
According to Ministry of Defence figures, a total of 129 rape cases were heard at military courts in the five years to 2019, only 13 of which resulted in a conviction, a success rate of just 10 per cent, compared to 50 per cent or more in the criminal courts - though campaigners acknowledge this figure is inflated by the Crown Prosecution Service’s practice of pursuing only the most solid cases.
Victim’s Commissioner Dame Vera Baird said that the chances of a raped servicewoman seeing justice in the military system are “shockingly low”.
One Royal Navy servicewoman said she “went through hell” after alleging sexual assault in a case which ended in an acquittal. Alicia - not her real name - mounted a legal challenge to the MOD’s approach and received an apology over incorrect legal advice, delays in submitting crucial documents and a failure to tell her she could give evidence via video link.
She hailed the Lords amendment as “incredibly important” and urged MPs to back it on Monday, saying: “It will encourage more service personnel to come forward and report (and) it will afford us some protection from the appalling consequences we suffer inside our units after we report rape.”
Emma Norton, the director of the Centre for Military Justice, said that “huge numbers” of women have come forward with concerns over poor-quality victim care, cases investigated by military police with little experience of complex sexual assault allegations and inferior advocacy by prosecutors at courts martial which led them to believe they would have more chance of a successful outcome in the civilian courts.
Large numbers of women experiencing sexual harassment in the military do not report it “because they do not have any faith that they’ll be dealt with appropriately and they are worried about the impact on their career”, Ms Norton told The Independent.
Flaws in the system reflected “deeply problematic” cultural attitudes towards women in the military and progress towards fixing them was “glacial”, she said. She urged MPs to “have the courage of their convictions and vote the right way on this” on Monday.
Dame Vera said that one rationale for resisting change offered by the MoD - and referenced in the Lyons report - had been that the responsibility of military courts to deal with rape charges against troops abroad made it essential for them to have experience of doing so in the UK.
But she told The Independent that this was “the weakest imaginable reason for appalling injustice”.
She said: “This is yet another manifestation of the kind of sexism that prevails throughout the British military, I’m afraid.
“There must be an imbalance in approach because the justice system within the military always put the good functioning of the military first. That is what it’s for.
“If you have someone who is a fantastic pilot or whatever, under this approach that is more important than whether he’s guilty of raping someone. You can keep the guy away from women and that will do, because he is very precious to us and we’re not going to risk the tens of thousands of pounds worth of training he’s received.
“Rape is rape, whether it’s done by a soldier against a solider or by a civilian against a civilian. Why should the outcomes be different? It’s obviously the way it’s tried and the way it’s investigated that is deficient.”
An MoD spokesperson said: “The government will not be supporting amendments to the Armed Forces Bill.
“We remain convinced that concurrent jurisdiction is the right approach. The Service Justice System is an integral part of the armed forces and reflects the unique nature of the role of our armed forces, operating all over the globe, often in countries with legal systems less rigorous and fair than our own.
“If certain crimes were removed from the Service Justice System it would undermine its legitimacy, whilst eroding the confidence of those that use this system.
“We support the right of victims in the UK to be able to report offences in whichever jurisdiction they choose and we are strengthening the prosecutor protocols to provide some much-needed clarity and transparency on how decisions on jurisdiction are made.”