My Lords, I fully understand the concerns that lie behind these amendments but I hope that my response will explain why we do not think it necessary or appropriate to press them.
The first amendment in the group, Amendment 5, concerns four offences: sexual assault, exposure, voyeurism and sexual activity in a public lavatory. The amendment would require a commanding officer to refer to the service police for investigation every allegation which would suggest to a reasonable person that one of these offences may have been committed by someone under his or her command. It would therefore remove from commanding officers the ability which they currently have in very limited circumstances to ensure that an allegation or circumstances are appropriately investigated without involving the service police.
It is the first of the offences covered by the amendment—sexual assault—and how allegations of that offence are investigated and handled within the Armed Forces which has been the main focus of attention in this debate. For the avoidance of doubt, I make it clear that the Armed Forces Act 2006 provides that a commanding officer does not have any role in investigating allegations of almost all the sexual offences on the statute book, including rape and assault by penetration. Allegations or circumstances which indicate to a reasonable person that any of these offences may have been committed by someone under their command must always be reported by a commanding officer to the service police. That is an absolute rule.
I also make it clear that commanding officers are already under a statutory duty to ensure that all allegations which indicate that a service offence may have been committed, including the offences covered by this amendment, are properly investigated. This means that, where a commanding officer becomes aware of an allegation of any of the offences covered by this amendment, he or she must consider whether it would be appropriate to report it to the service police. If it would be appropriate to report it, it must be reported.
The statute, however, should not be our only source of reference. The manual of service law makes it very clear to commanding officers that if there has been an allegation of one of these offences, they must take legal advice about whether it would be appropriate to call in the police. Access to legal advice is available 24 hours a day and seven days a week. The manual also makes it clear that there is a presumption that allegations of such offences will normally be reported to the service police. This duty on commanding officers to ensure that allegations are investigated appropriately means that it will rarely be appropriate—I stress rarely—for the commanding officer not to report an allegation of sexual assault to the service police.
The reason why the Armed Forces Act 2006 did not go further and require commanding officers to report to the service police every single allegation of sexual assault, or the other offences covered by this amendment, is that those offences cover such a wide range of
conduct. For example, the offence of “sexual assault” makes any sexual touching without consent a criminal offence. “Sexual” can include conduct that may not in some circumstances be sexual but which, in the particular circumstances of the case, a reasonable person would consider sexual; for example, an arm around the shoulder may fall within the offence. The provision in the 2006 Act recognises that, given the width of these offences, there may be cases involving the most minor infringements that may be better handled other than by automatic police investigation. The 2006 Act recognises that this may also be the case for offences other than those covered by this amendment. For example, an investigation other than by the service police will in many cases be appropriate for disciplinary offences under the 2006 Act.
I hope that noble Lords will therefore understand that it is because of the very wide range of conduct that these offences cover that it may be appropriate, in limited circumstances—I underline that phrase—for commanding officers to investigate allegations. Those circumstances are, in practice, further limited by the fact that the service police can and do act on their own initiative—for example, where they are approached by a victim or a witness, where they come across an offence while patrolling, or where the civilian police have been involved and pass the case to the service police.
Other proposals in the Bill, in Clauses 3 to 5, will mean that in future, where the service police investigate an allegation of, for example, sexual assault, they will have to refer the case straight to the Director of Service Prosecutions for a decision on whether to bring charges and, if so, what those charges should be. That is a change from the current position, under which charges are instead referred back to the commanding officer. However, I recognise that, for some, our existing policies and procedures do not go far enough. They argue that we should use the opportunity presented by this Bill to amend Schedule 2 to the Armed Forces Act 2006 so that all allegations of sexual assault, and the other offences covered by this amendment, must be referred to the service police. In fact, the 2006 Act provides a mechanism for amending Schedule 2. Section 113 of the Act provides that the Secretary of State may amend Schedule 2 by secondary legislation, subject to the affirmative procedure, so primary legislation is not needed to make the change proposed in the amendment.
Against that background, I inform the House that the service justice board, chaired by the Minister for Defence Personnel and Veterans, has decided that the time is right for a fresh look at this issue, taking on board the arguments for the existing position and the views expressed in both Houses and by external organisations such as Liberty. The necessary work has been set in hand. My noble friend Lord Attlee made some very valid observations, and I assure him that the points that he raised under this heading will be addressed in the review. Any changes to Schedule 2 that may be needed can be made through secondary legislation, subject to the affirmative procedure. The review is likely to take until the end of the year, and I will report the outcome to the House in due course.
The second amendment in this group, Amendment 6, would create a legal obligation to publish data about allegations of sexual assault and rape. It would impose an obligation which is not currently imposed on other civilian authorities—although they publish such information on a regular basis. As noble Lords may be aware, in Committee of the whole House in the other place, the Minister spoke on this subject and made it quite clear that he wanted improvements in the data that we publish and that he was considering how best to publish the data as an official statistic. That is very definitely the Government’s intention. Given that commitment, I reassure noble Lords that the work to achieve this is well in hand. I have recently written to the noble Lord, Lord Touhig, on this subject, and it may be helpful if I share the information in that letter with the rest of the House.
In my letter, I explained that the Government aim to publish, by the Summer Recess, statistics about sexual offences that have been dealt with by the service justice system during the 2015 calendar year. The statistics will cover those cases where the service police have been the lead investigating agency and where the service justice system retained jurisdiction of the case throughout. To meet the standard for formal publication of these statistics, we clearly must put in place the necessary policies and procedures to ensure that the data are robust and consistent as we move forward. That work is in hand and encompasses three main components of the service justice system: the service police, dealing with the investigation of the crime; the service prosecuting authority, dealing with the cases referred; and the military court service, which lists the cases and reports on outcomes.
With regard to investigations, the crime statistics and analysis cell within the Service Police Crime Bureau will provide information on all sexual offences investigated by the service police. This will be broken down by service and will further detail the offence type, the gender of the victim or suspect, the location by country and the outcome of the investigation, such as whether the suspect was referred to the service prosecuting authority. To ensure greater consistency with Home Office police forces and assurance of data, the service police will have a crime registrar. The responsibilities of that post will include the development, implementation and monitoring of crime-recording policies, procedures and programmes and their application, to ensure high standards of data integrity and accuracy.
On prosecutions, the service prosecuting authority will provide data relating to the numbers of referrals that it has received for all sexual offences, which will again be broken down by service and offence type. The service prosecuting authority will also provide information on the numbers of those then charged with the offence referred, whether the person was charged with an alternative offence, or whether the case was discontinued.
Finally, the military court service will be responsible for providing information on the numbers of cases heard at court martial which involve sexual offences. This will again be broken down by service and will include both pleas and findings.
We intend to publish all these data on an annual basis. They will be supported by explanatory information to provide the reader with an understanding of the
SJS and some context for the information. As mentioned earlier, we aim to produce the first set of these statistics by the Summer Recess, and they will be hosted on the GOV.UK website in a format that is easy to read and print.
In the light of this and my assurance to return to the House on the matter raised in Amendment 5, I hope that the noble Lord, Lord Touhig, will feel comfortable about withdrawing his amendment.