New agreement gives victims of alleged crimes by armed forces personnel their say in the criminal justice process

For the first time, the views of victims will be considered when deciding whether criminal cases involving a member of the armed forces should be dealt with by the civilian or military justice system in England and Wales.

Prosecutors have been told to seek assurances from the police that victims have been asked if they have any views on jurisdiction and will need to consider any preference they express.

Another key change in the protocol is that for certain cases, prosecutors from the Crown Prosecution Service (CPS) and Service Prosecuting Authority (SPA), must consult each other over jurisdiction, regardless of whether a victim has expressed a view or not. These are:

• Murder, Manslaughter
• Rape, sexual assault with penetration, sexual assault without penetration
• Domestic abuse or child abuse
• A suspect or defendant under 18-years-old.

The final decision is made by a Deputy Chief Crown Prosecutor for the CPS and a Managing Prosecutor or Deputy Director in the SPA.

The revised protocol between the CPS and SPA comes into force today (25 October), following a public consultation earlier this year.

Max Hill KC, the Director of Public Prosecutions (DPP), said:

“Being a victim of crime can have a devastating and life-long impact, so it is right that they have a voice in the criminal justice process.

“It is only through balancing the rights of victims and defendants that we can ensure justice is delivered.

“The new protocol will ensure fair and efficient justice that maintains the public’s confidence in both the civilian and military courts and helps in our efforts to see more perpetrators brought to justice.

“Supporting victims throughout the criminal justice process is essential to securing justice, and both jurisdictions have safeguarding measures. This includes special measures such as giving evidence from behind a screen or pre-recording evidence rather than repeat the same testimony again in court which can be traumatic for some people.

“Whether it is the civilian or military system, the protocol will help us continue to treat victims, witnesses, suspects and defendants with decency and respect.”

Jonathan Rees KC, Director of Service Prosecutions (DSP), said:

“The protocol that I have agreed with the DPP follows very careful consideration of the responses we received during the consultation process.

“By increasing the number of factors that need to be considered in addition to the main principles when deciding on jurisdiction, we have provided prosecutors with detailed guidance designed to promote fair and efficient justice. For example, we have included factors to reflect any views expressed by complainants as to jurisdiction and considerations relevant to cases involving allegations of domestic abuse, sexual offences and child abuse.

“In addition, we have provided for mandatory consultation between senior prosecutors at the SPA and the CPS in certain categories of cases, including murder, manslaughter and rape. 

“This new protocol demonstrates our joint intention that criminal cases involving service personnel are dealt with in the most appropriate justice system.”

Allocating a case to either the CPS or SPA does not necessarily mean charges will be brought against a suspect. Sentencing remains a decision for the courts. The maximum sentences remain the same in the civilian and military courts.

The Armed Forces Act 2021 inserted provisions into the Armed Forces Act 2006, which require the CPS and SPA to agree on a protocol that prosecutors must follow when deciding which authority should have jurisdiction in cases.

The main principles are that if a crime affects a civilian or their property, it will ordinarily be dealt with in the magistrates’ or crown court. But if the crime only affects military staff or property, it will ordinarily be dealt with at the Court Martial. Where there are a mix of civilian and military suspects in a case, it will ordinarily be dealt with in the civilian courts.