Mr Rogers Our Reference: FOI SPA/MAY/13/002

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Mr Rogers Our Reference: FOI SPA/MAY/13/002

Date: 10th Jul 2013

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Dear Mr Rogers

Thank you for your email of 28th May 2013 where you requested the information detailed at Annex A to this letter.

I am treating your correspondence as a request for information under the Freedom of Information Act 2000.

A search for the information has now been completed within the Ministry of Defence, and I can confirm that information in scope of your request is held. A copy of the information which can be released is enclosed at Annex B to this letter

However, I have to advise you that we will not be able to answer questions 2 and 6 of your request without exceeding the appropriate limit. This is because the time required to locate, retrieve and extract information in scope of your request would exceed time allowed and the questions could not be answered save at disproportionate cost.

Section 12 of the Act makes provision for public authorities to refuse requests for information where the cost of dealing with them would exceed the appropriate limit, which for central government is set at £600. This represents the estimated cost of one person spending 3.5 working days in determining whether the department holds the information, and locating, retrieving and extracting it.

The MOD may be able to provide more information in scope of your request if you reduce or refine your request to bring the cost of compliance under the limit. Please contact the Service Prosecuting Authority if you would like to refine your request or require advice on doing so.

The information supplied to you continues to be protected by copyright. You are free to use it for your own purposes, including for private study and non-commercial research, and for any other purpose authorised by an exception in current copyright law. Documents (except photographs) can be also used in the UK without requiring permission for the purposes of news reporting. Any other reuse, for example commercial publication, would require the permission of the copyright holder.

Most documents supplied by the Ministry of Defence will have been produced within government and will be Crown Copyright. For information about re-using Crown Copyright see the Office of Public Sector Information website at www.opsi.gov.uk. The copyright in some documents may rest with a third party. For information about obtaining permission from a third party see the Intellectual Property Office’s website at www.ipo.gov.uk.

If you are not satisfied with this response or you wish to complain about any aspect of the handling of your request, then you should contact the Service Prosecuting Authority in the first instance. If informal resolution is not possible and you are still dissatisfied then you may apply for an independent internal review by contacting the Deputy Chief Information Officer, 2nd Floor, MOD Main Building, Whitehall, SW1A 2HB (e-mail ). Please note that any request for an internal review must be made within 40 working days of the date on which the attempt to reach informal resolution has come to an end.

If you remain dissatisfied following an internal review, you may take your complaint to the Information Commissioner under the provisions of Section 50 of the Freedom of Information Act. Please note that the Information Commissioner will not investigate your case until the MOD internal review process has been completed. Further details of the role and powers of the Information Commissioner can be found on the Commissioner's website, http://www.ico.gov.uk.

Yours sincerely

Service Prosecuting Authority

Annex A to

FOI SPA/MAY/13/002

Dated 10th Jul 2013

Serial / FOI Case Reference / Applicants Reference / Details
(a) / (b) / (c) / (d)
1 / FOI SPA MAY 13 002 / request-162938-b5e1b7cc@
whatdotheyknow.com / 1) Any policy changes, recommendations etc. that have resulted from the following port and addendum?
http://www.ramcleod.net/files/20120924-SCC_powers_inquiry_memorandum-McLeod.pdf?attredirects=0&d=1
http://www.ramcleod.net/files/20121031-SJS%20risks%20-%20addendum%20to%20Sep%20evidence.pdf?attredirects=0&d=1
2 / FOI SPA MAY 13 002 / request-162938-b5e1b7cc@
whatdotheyknow.com / The SPA inspection Report
http://spa.independent.gov.uk/linkedfiles/spa/test/about_us/publication_scheme/200110309-spainspectionreportcd30191110-u1.pdf
states the following:
“When a case is referred to the CO, the service police forward a copy of the report to the relevant legal Service Advisory Branch which is responsible for advising the CO on how the allegations should be dealt with. If there is a prima facie case of an offence, Advisory Branch advises the CO on the appropriate charge. A prima facie case simply requires evidence which, if uncontested, would be sufficient to prove the offence. It is a lower evidential test than the realistic prospect of conviction test applied by the SPA. The CO will also be given advice as to whether he can, and should, hear the case summarily or if it should or must be referred to the SPA for consideration of court martial proceedings. The SPA is not formally involved in the process of investigation although it may, and increasingly does, give early advice to investigators when requested."
2) How many prima facie cases initially handled by Service Advisory Branch with the lower burden of proof, which were recommended to be dealt with Summarily, have through the serviceman/woman electing Court Martial or an appeal at the Summary Appeal Court:-
a)Been referred to the SPA?
b)Been referred to the SPA, but failed the realistic prospect of conviction test and not prosecuted?
c)Been referred to the SPA, prosecuted with the defendant found guilty?
d)Been referred to the SPA, prosecuted with the defendant found not guilty?
e)Please provide any information available that would suggest if the figure for a) includes all cases, or if some appeals or elections for Court Martial's are dropped before referral to the SPA?
3 / FOI SPA MAY 13 002 / request-162938-b5e1b7cc@
whatdotheyknow.com / The following is a blog written by Simon McKay (solicitor representing Sgt Nightingale)
http://simonmckay.wordpress.com/2013/04/07/on-summary-military-justice/
3) The protocol between the SPA and CPS is described as "...a lottery, determined by the service interest and not the accused." Are there any minutes, documents etc with any recommendations for a fairer system for the accused?
4 / FOI SPA MAY 13 002 / request-162938-b5e1b7cc@
whatdotheyknow.com / 4)What are the conviction rates for rape and sexual assault at Court Martial? Is there a disparity between the CPS and SPA, if so are there any minutes, documents etc detailing how to address this specific issue?
5 / FOI SPA MAY 13 002 / request-162938-b5e1b7cc@
whatdotheyknow.com / 5)Channel 4 News have recently broadcast that the SPA prosecutor in the case of Anne-Marie Ellement did not have the appropriate training required.
http://www.channel4.com/news/soldiers-guilty-of-sexual-offences-kept-on-by-british-arm
Please provide:
a)A breakdown of the yearly total number of prosecutions for rape and sexual offences referred to the SPA.
b)The number of successful prosecutions. Please further provide details if prosecutor had attended appropriate rape training.
c)The number of unsuccessful prosecutions. Please further provide details if prosecutor had attended appropriate rape training.
d)The number of cases dropped by SPA where prosecutor had attended appropriate rape training.
e)The number of cases dropped by SPA where prosecutor had not
attended appropriate rape training.
6 / FOI SPA MAY 13 002 / request-162938-b5e1b7cc@
whatdotheyknow.com / 6)During Applications for leave to appeal out of time from a summary hearing, how many have the SPA:
a) contested
b) uncontested to to allow to face a retrial?
7 / FOI SPA MAY 13 002 / request-162938-b5e1b7cc@
whatdotheyknow.com / 7)What is the SPA official position regarding servicemen being misinformed, and understanding the consequences of agreeing to the summary procedure? Would this matter in order to obtain a retrial out of time? Does the SPA dispute servicemen have been misinformed? Any recorded information that might address these issues would be appreciated?

Annex B to

FOI SPA/MAY/13/002

Dated 10th Jul 2013

Serial / FOI Case Reference / Applicants Reference / Details
(a) / (b) / (c) / (d)
1 / FOI SPA MAY 13 002 / request-162938-b5e1b7cc@
whatdotheyknow.com / The SPA does not deal with the employment law relating to the military, or with the advisory branches of the three services, not does it had summary hearings. Policy is under constant review but none were motivated expressly by these documents.
2 / FOI SPA MAY 13 002 / request-162938-b5e1b7cc@
whatdotheyknow.com / The question asked here cannot be answered within the time allowed and could not be answered save at disproportionate cost.
3 / FOI SPA MAY 13 002 / request-162938-b5e1b7cc@
whatdotheyknow.com / We are not responsible for inaccurate statements in blogs. The question therefore proceeds from a false premise.
4 / FOI SPA MAY 13 002 / request-162938-b5e1b7cc@
whatdotheyknow.com / The conviction rates for rape and sexual assault are included in the following tables below. You are invited him to contact the CPS for their statistics.. We are not in position to verify CPS statistics. There are internal documents and policies which ensure that these cases are competently and robustly considered and prosecuted but these do not deal with conviction rates of such cases.

Rape cases

Year / No of Referrals / No of Directions/Trials / No of acquittals / No of Convictions
2009
(from 1 Nov 09) / 7 / 6 / 5 / 1
2010 / 21 / 7 / 2 / 5
2011 / 18 / 11 / 4 / 3
2012 / 22 (1 awaiting a decision) / 10 / 6 / 4
2013 (to date) / 8 (to date)
(5 awaiting a decision)

Sexual Assaults

Year / No of Referrals / No of Directions/Trials / No of acquittals / No of Convictions
2009
(from 1 Nov 09) / 7 / 4 / 2 / 1
2010 / 51 / 27 / 23
2011 / 70 / 34 / 3 / 31
2012 / 29 (1 awaiting a decision) / 13 / 7 / 6
2013 (to date) / 18 (to date)
(9 awaiting a decision) / 6 (5 awaiting trial) / 0 / 1
5 / FOI SPA MAY 13 002 / request-162938-b5e1b7cc@
whatdotheyknow.com / Answer to 5A has been provided above. Answers to 5b to 5e are included after comments from the Director:
“In 2008 the CPS and the police signed up to a joint national protocol that set out best practice and policies in the investigation and prosecution of rape cases. The rape specialists were to receive compulsory training that emphasises building the strongest possible cases and focusing on victims. On 1st November 2009 the Service Prosecuting Authority (SPA) was formed on implementation of the Armed Forces Act 2006. From inception, only the most experienced prosecutors who had previously conducted rape trials were authorised by the DSP to conduct rape cases. If the DSP was not so satisfied he would instruct independent counsel from the private Bar. Most service prosecutors at this stage had not attended the courses that by 2010 were more readily available for such prosecutors. Whist the CPS and the CBA conducted such courses, it was difficult to obtain places and the courses were not run with any frequency. In Summer 2010 the Government published the independent review of Baroness Stern into how rape complaints are handled by public authorities in England and Wales. The SPA immediately responded to this by inviting Baroness Stern to open a special conference on the prosecution and investigation of rape and serious sexual offences. This was held at Northolt in October 2011, and was the first such invitation she had received. Whilst there is no precise set training course for specialist prosecutors, these courses are designed around the needs the prosecutors have for training. For example, in October 2011, at the SPA Stern Conference outside experts were brought in to talk about the nature and extent of the forensic medical examination and the effects of rape, including rape trauma syndrome, the myths and false perceptions that surrounded the issue of rape, and how to build an effective case fair to the victim as well as the accused. Training in the provisions and case law relating to the Sexual Offences Act 2003 and amending legislation was provided. The Director of Service Prosecutions (DSP) made clear that from that date (Oct 2011) no prosecutor would be permitted to deal with a rape case unless he/she had attended an appropriate specialist course specifically designed for to train prosecutors to conduct such cases. Since then all specialist prosecutors permitted to conduct or advise on a rape case have attended such a course. Before they are permitted to act as such they must in addition act as a junior advocate in at least one rape trial, and have in the view of the DSP sufficient ability and experience in general trial work to be able to conduct cases of this kind in Court. This process has been carefully followed ever since. Only when specifically approved by the DSP may any prosecutor conduct such a case. If no such prosecutor is available, or the case is unusually complex or difficult, the case will be conducted by a specialist rape prosecutor from the private bar instructed by the DSP. In addition to following the principles of the Stern review the SPA policy on the prosecution of rape mirror those established by the CPS and are available on the SPA public website at http://spa.independent.gov.uk/test/aboutus/publication_scheme.htm