I shall address both points. I shall certainly factor in the last point that my noble friend made about the need to have, where this occurs, a record of a pattern of behaviour to guide the authorities if need be.
In answer to the noble Baroness, Lady Gould, the Service Prosecuting Authority records, for each year, the number of cases referred to it, the number of cases in which charges are preferred and the number of cases where a conviction is secured. The Military Court Service publishes on the internet, on a regular basis, details of every case heard at courts martial, including offences, outcomes and punishments. Therefore, the Ministry of Defence already collects and publishes a range of information about sexual offending within the Armed Forces.
However, I do not want to sound in the least complacent on this. As my honourable friend Mr Lancaster made clear in another place, we recognise that we could improve on what we are currently doing. The MoD is now working to ensure that the necessary policies and procedures can be put in place so that the finished product meets the necessary standards of an official statistic. It is a question of ensuring that any statistics that are published can be relied upon to present a true and consistent picture.
Amendment 5 would impose a legal obligation to publish data about allegations of sexual offences. I am more than a little concerned about that because of the point that I made earlier about unfounded allegations but also because no such obligation is imposed on civilian authorities. One has to ask why the military context should be any different.
Amendment 6 would remove from commanding officers any discretion as to whether to report to the service police allegations of the sexual offences to which the amendment relates. Those offences are sexual assault, exposure, voyeurism and sexual activity in a public lavatory. The amendment would mean that the commanding officer was required, by law, to report to the service police every allegation which would indicate to a reasonable person that one of these offences may have been committed. This obligation would apply regardless of the wishes of the victim.
I do not think that this amendment is necessary and I shall explain why. Commanding officers are under a statutory duty under the Armed Forces Act 2006 to ensure that allegations of any offences, including those covered by the amendment, are handled appropriately.
The commanding officer’s duties in this respect are crystal clear. If a commanding officer becomes aware of an allegation or circumstances which would indicate to a reasonable person that any service offence may have been committed by someone under his command, he must ensure that it is investigated “appropriately”. The commanding officer must therefore report an allegation to the service police if this would be appropriate.
However, if a commanding officer becomes aware of an allegation or circumstances which would indicate to a reasonable person that a Schedule 2 offence had or may have been committed, he must report this to the service police. Schedule 2 offences are those inherently serious offences listed in Schedule 2 to the Armed Forces Act 2006. Almost all offences under Part 1 of the Sexual Offences Act 2003 are Schedule 2 offences, including rape, assault by penetration and a large number of other serious sexual offences. This amendment would make sexual assault, exposure, voyeurism and sexual activity in a public lavatory Schedule 2 offences. A commanding officer would therefore have no discretion as to whether to report allegations to the service police.
In considering this issue, it is important to remember that before a commanding officer takes command he has training to teach him how to exercise his powers under the Armed Forces Act 2006, and he has access to legal advice 24 hours a day, seven days a week.
I should also mention that comprehensive guidance on handling serious offences, including sexual offences, has been issued to commanding officers, as has a comprehensive guide for victims of such offences. It is also important to note that there is a specific requirement in the Manual of Service Law that a commanding officer is to take legal advice where the offences covered by this amendment are alleged. The manual makes specific mention of these offences in the section on deciding how to investigate. It also states that there is to be a presumption that the commanding officer should normally ensure that allegations of such offences are reported to the service police.
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I have explained in some detail the role of the commanding officer in these cases but I should remind the Committee that the service police can and do act on their own initiative, even if a commanding officer does not think it appropriate to report a case to them—for example, where they are approached by a victim or a witness, where they come across the offence while patrolling, or where the civilian police have been involved and pass the case to the service police.
In the case of sexual assault, it will rarely be appropriate for the commanding officer not to refer an allegation to the service police. However, the offence of sexual assault is so wide that, in my view, it is right for the commanding officer to have some discretion and to encourage victims to come forward, rather than discourage them, as I fear this amendment would do. I also consider it right for the commanding officer to have some discretion as to whether the discharge of his or her duty—to ensure that allegations of offences of exposure, voyeurism and sexual activity in a public lavatory are investigated “appropriately”—requires that such allegations are reported to the service police.
Unlike some noble Lords, I do not think that it is inappropriate to ignore comparisons with other forms of employment. Most other organisations and employers have much wider discretion as to whether to report allegations to the police, and I am not convinced that the Armed Forces should be a special case in that regard.
The picture painted by some noble Lords is that we do not have any kind of robust framework but, in the light of what I have just said, I believe that a robust framework already exists and that it is not necessary to impose upon commanding officers a statutory duty to refer to the service police each and every allegation of sexual assault and the other offences covered by this amendment. Under the amendment, that would apply regardless of what any victim might want, which in some cases is a relevant consideration.
In summary, I do not believe that it is necessary for the Bill to be amended and I hope that the noble Lord will agree to reflect on what I have said and, for now, to withdraw his amendment.