When appointed the first civilian in charge of military prosecutions, Bruce
Houlder, QC, faced accusations that he would “let our boys hang out to dry”.
Others said that he had been put in post to “whitewash the crimes of the
military”. Houlder, who took over on January 1 as the independent Director
of Service Prosecutions for all three Armed Forces, is determined to prove
that he can steer a middle course.
“My role is to see that offenders are brought to justice in the public and the
services’ interest and also in the interests of justice and efficiency — and
that military effectiveness is enhanced by what I do and what I decide,” he
says.
Houlder, 61, a top criminal silk and former chairman of the Criminal Bar
Association, was appointed to the £130,000 a year new post under reforms
brought in by the Armed Forces Act 2006 that merge the three single
prosecuting authorities of the Army, Royal Navy and RAF.
His appointment comes after a series of failed courts martial cases against
soldiers accused of abuses in Iraq; damage to the reputation of the military
from the Baha Musa case that led to the Defence Secretary admitting to
“substantial breaches” of human rights over the killing of the Iraqi
civilian; and the courts martial of seven paratroopers accused of murdering
an Iraqi teenager that collapsed after a nine-week trial with criticisms of
the military investigation.
So both the military and the public are looking to Houlder to restore
reputations and public confidence. “No prosecutor could ever say that cases
like that [Baha Musa] will never recur . . . it would be extremely naive for
anyone to suggest that things had changed for ever.” But, he insists, there
has been “a real sea change in the way that these things are now reviewed
[investigated] in the military, both in terms of the seriousness with which
the chain of command regard offending and the way in which recruits and
soldiers in barracks are looked after”.
As an outsider, Houlder’s first task has been to win the hearts and minds of
the Armed Forces. He has been on an intensive induction course, spending
time on military bases throughout the UK, seeing not only the legal and
disciplinary work but the soldiers, sailors and airmen and their officers
being trained in various establishments. He has also been shown the welfare
side of the Forces and been flown out to the front line in Iraq and
Afghanistan.
There was initial opposition — in Parliament at least — to the idea of a
civilian doing his job. But Houlder has experienced no resentment to his
face; and on the contrary a welcome from many senior officers. In recent
months he believes that he has proved that he understands their ethos; the
need for maintaining discipline and the particulars of the task they do that
in any prosecuting system is paramount.
The job, he says, is “not to protect individuals from prosecution, nor to
second-guess an honest decision made in the circumstances of an armed
conflict for good reason that turns out to be wrong when looked at in the
cold light of day, nor to second-guess soldiers in the field who do their
job to the best of their ability, act according to the law but then make a
terrible mistake. Terrible events happen. My job is not to make their task
more difficult.”
That message aside, Houlder does plan changes. The full impact of the reforms
will not be in force until October, because of the delays in the passage of
what is a complex piece of legislation. At that point the three Services’
courts martial systems will become one, with a single prosecuting authority.
It is likely to be a more efficient operation than now, although that will not
necessarily see a higher conviction rate. Houlder points out that contrary
to popular belief, the rate of convictions is the same, if not slightly
higher, than in the general criminal justice system; figures that “do not
merit the criticisms readily made on the back of our two more notorious
results” (Baha Musa and the trial of the seven paratroopers acquitted of
murdering an Iraqi teenager). In 2007 814 cases came before a court martial,
most pleaded guilty and in not guilty cases, about half resulted in a
conviction.
Acquittals, Houlder said, do not indicate any failure of the prosecuting
system — even in the Baha Musa case that is now the subject of an inquiry.
He also cites a report by the Crown Prosecution Service Inspectorate that
endorsed the decisions of the Army Prosecuting Authority.
As part of his aim for a more robust prosecuting authority he wants closer
working between prosecutors and military police doing the investigations;
and longer periods of time to be served by his cadre of 40 prosecuting
lawyers (at least three years) so that they can build up expertise.
Military cases, he acknowledges, bring special problems: the “appalling and
needless death of Baha Musa” had exposed the issue of “what is known as
regimental amnesia”, in which witnesses were inclined to forget where their
loyalty lay when it came to giving evidence, forgetting it was to the “truth
of the situation”.
The investigators, the military police, also have problems that civilian
police do not have, in securing evidence when crimes occur in enemy
territory, in the “operation of theatre, in hostile terrain, often with
witnesses quite literally terrified to be seen to assist the British in any
shape, way or form and victims often not even prepared to make a statement
on our soil”. The military police could not be expected to achieve the same
status of evidence as civilian police, he said.
So he plans a more rigorous legal and advocacy training programme for officers
who are seconded to his prosecuting authority and trained as lawyers; the
adoption of procedures used within the Crown Prosecution Service (CPS) and
the use of tri-service teams of prosecutors who will handle cases from each
of the three Services, not just their own. At the same time, he wants closer
working relations between prosecutors and police — although the full-blown
CPS model of prosecutors and police working in tandem is impracticable.
Why a distinct and separate military system of justice at all when critics
argue it can never be seen as independent? Houlder argues a military
prosecuting system is essential to maintain the Armed Services’ ethos and
discipline. Many offences, he says, have no place in the general law of
England and Wales, while having a “deleterious effect” on military
discipline. “I do support it: everything I have seen demonstrates why it is
necessary to have a separate system . . . and I am confident that it does
operate fairly, in the public interest but also in the Services’ interest.”
He is answerable to the Attorney-General and would consult and seek advice in
some cases on prosecutions but he would always have the last word. The
Attorney, he says, would not interfere. In future, many cases that now
require the Attorney’s formal consent for a prosecution may be devolved to
the prosecuting service.
Houlder has worked hard to win over the Armed Services’ chiefs to his role,
assuring them that he understands “the operational context in which they
work”. His next, and more challenging, task will be to win over the public.
It goes without saying, he says, that any future “Baha Musa” case would be
robustly prosecuted.
“I hope I will raise the standard. I hope I will be able to speak as someone
genuinely independent because I am not part of the chain of command; I am
not an officer, have never served in the military, I simply work with them
and understand them.”
He hopes that they will feel that they are getting an independent view. “That is
the advantage: I hope when I do make decisions, the ill-considered
accusation that it’s a whitewash, or the military looking after their own,
can’t be made.”
