Your Legal Rights
The United Kingdom has three legal systems - English law applies in England and Wales, Northern Irish law applies in Northern Ireland and Scottish law applies in Scotland. Each legal system essentially divides into two main parts - criminal and civil. The main focus of this section will be with the criminal justice system and legal process, however, we will briefly discuss the potential impact of the civil system on veterans.
Innocent Until Proven Guilty
In criminal proceedings, a defendant cannot be convicted until they have been proven to be guilty 'beyond all reasonable doubt'. In modern language, this means that the Judge or jury (depending on the Court system in place) 'must be sure that the defendant is guilty'. The burden of proving this rests with the prosecution. This is because the starting point is that everyone is innocent until proven guilty. The burden of proof is never on the defendant to prove their innocence, but always rests with the prosecution to prove that the accused is guilty.
In England, Wales and Northern Ireland, the consequential verdicts translate to "guilty" or "not guilty", and in Scotland an additional verdict of "not proven" exists.
As investigations are being run by the Police Service of Northern Ireland (PSNI) for events which occurred in Northern Ireland it is likely that any prosecutions will be brought in Northern Ireland. Certainly in the cases of Mr Hutchings and Soldiers A and C all initial hearings have been held at Belfast Crown Court and the trial of Soldiers A and C will commence in Belfast on 26 April 2021.
It is worth noting that the upcoming trial of Soldiers A and C will be conducted without a jury. This is particular to Northern Ireland where "Diplock courts" (no jury) were used in relation to terrorist cases. If future prosecutions were conducted in England trial by jury would be standard.
No time bars
In the UK, there is no statute of limitation on when a prosecution can commence for murder or manslaughter in criminal courts. As a consequence, veterans are still vulnerable to investigation and possible prosecution for such offences at any time, despite the alleged incident having occurred many years before. This will be impacted when the Overseas Operations (Service Personnel and Veterans Bill becomes law.
Rules of Engagement
The rules of engagement are rules created by the Ministry of Defence (MOD) on how you should act on deployment and during service, so that during all times your behaviour falls within UK law. These are updated every so often. The newest edition was published and enforced in 2004. If an incident occurred before this time the relevant rules of engagement should be located and will be reviewed by your legal advisers.
It is important to understand that military law exists alongside the civil and criminal laws in the UK and, therefore, soldiers on operations are still subject to UK law as well as any rules of engagement. In practice this means that if a serving soldier commits a crime they can be prosecuted in the criminal courts. Military law does also recognise that certain offences are specific to the armed forces, such as being AWOL (Absence Without Leave). The most serious offences under military law can lead to a court martial. The Army Prosecuting Authority will decide whether a case requires this.
The typical process/stages in a criminal investigation leading to a trial include:
- Investigation - The prosecution process generally begins from the point when a crime is reported to the police. Evidence is then gathered by the police and any other relevant, investigatory agencies to establish what actually happened and who was involved, and statements are taken from witnesses to support the evidence. In some cases, such witnesses may request to seek legal advice before providing any statement.
- Arrest - If a suspect is arrested they will have the allegation(s) explained to them and be cautioned with the following words: "You do not have to say anything but it may harm your defence if you do not mention when questioned something you later rely on in court. Anything you do say may be given in evidence". The suspect will then be taken to a police station, and have their rights explained, which can include:
having someone informed of their arrest;
free legal advice from an appointed lawyer or from a lawyer of their choosing;
medical attention if they are feeling ill;
seeing a written notice explaining their rights (e.g. regular breaks for food and to use the toilet).
If a suspect is not charged with an offence by the time any applicable time limit expires, the police must release them.
- Interviewing suspects, i.e. being questioned under caution - Most interviews under caution take place at short notice, after an initial arrest or a raid by the authorities. However, increasingly the police and other agencies are relying upon interviews arranged voluntarily. If a suspect has been invited to such an interview, even though they may have been told that they will not be arrested, it is still vital that they obtain proper legal advice as the investigators still suspect that they have committed a criminal offence. Before the interview starts the suspect must be cautioned as follows: "You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence." The police will explain that speaking to them is voluntary and if a suspect does not wish to say anything then they may exercise this right. If a suspect does decide to talk to the police, everything they say may be recorded and played to the court at any future trial. If a suspect chooses to answer "no comment", then a Judge or jury (depending on the Court system in place) may draw an adverse inference at such a trial. How a suspect chooses to respond when first arrested or interviewed under caution can shape the future of an investigation and any subsequent prosecution; taking expert legal advice prior to interview and making the right decisions can be crucial to the outcome.
- Inquest - if required (see 'Guide to Inquests' section)
- Decision to charge - In a criminal case, if there is sufficient evidence to provide a 'realistic prospect of conviction' against the suspect, a decision to charge is made. Depending on the type and seriousness of the offence committed, this decision is generally made by the police service or the Crown Prosecution Service (CPS). The CPS commonly determine what suspects should be charged with in more serious or complex cases. The decision whether or not to prosecute is dependent on the weight of the evidence and also whether it is in the public interest to do so. If a suspect is charged with a crime they will be given a 'charge sheet' which sets out the details of the crime alleged. The police will decide whether to grant bail or remand the individual in custody until their initial court appearance.
- Procedure at Court - Once a case enters the Criminal Court System, should a defendant plead not guilty, it is normal for there to be a period of time before trial, during which there will be several preparatory court hearings. It is also during this time that a defendant's legal team will prepare the defence, which will include carefully analysing the prosecution evidence and obtaining evidence on behalf of the defendant, including defence witness statements.
- Trial - Once a case reaches the trial phase, it will be for the prosecution and the defence to present their cases before the Judge or jury (depending on the Court system in place), before the tribunal returns a verdict, based on the evidence before them.
- Outcome/consequences - In the event of conviction, the Court will proceed to sentence the defendant. In certain situations, appeals against conviction and/or sentence may be possible in the higher Courts.
There is also the possibility that veterans might be pursued via the Civil Courts as well as, or instead of, the Criminal Courts. Veterans should note that the Civil Courts are very different to Criminal Courts. Most importantly, unlike the "innocent until proven guilty" ideal of the Criminal Court, in Civil Court the ideal is "on the balance of probability", which is a lower burden of proof and only requires one case to have more strength than the other. Those who want to bring a claim against veterans might pursue them via the Civil Courts, as it is easier to win a claim and in order to obtain financial redress off the veterans as any judgment will be for damages (not imprisonment).
In the Civil Court the Judge has full power in terms of verdict and sentence, whereas there is a Jury in the Criminal Court.
Guide to Inquests
The inquest process is "An inquiry by a coroner's court into the cause of a death." The parameters for the death surrounding an inquest are outlined as:
- A death was sudden, violent or unnatural
- A death occurred in prison or police custody
- The cause of death is still unknown after a post-mortem (where a body is examined after death)
A coroner's court is a court that helps determine the nature of an individual's death when the facts remain uncertain. Coroners are typically lawyers and doctors who have a qualification in law allowing them to practice in the court.
Typically there is no Jury in the court, although the Coroner may see it fit to call one.
Inquests are typically opened up after death, however, they will normally be adjourned (held off) until other information is complete, this is normally around a period of 27 weeks after the death occurs.
Coroners will sometimes require other hearings and investigations prior to the inquest to help gain an idea of the extent to which the inquest should go. These are known as pre-inquest hearings.
Witnesses during inquests are asked questions by the coroner on the case. Coroners may also ask for a summary of events observed.
Individuals with "Proper Interests" may also question the witness, these typically include:
- Family Members or Partners of the deceased
- A life insurance beneficiary of the deceased
- An insurer who has issued insurance to the deceased
- Anyone whose actions the coroner believes may have contributed to the death
- The Chief Officer of the Police (may only ask questions through his/her attorney)
- Anyone appointed by a government department
Although this is who is typically included, all individuals deemed to have "Proper Interest" must have the Coroner's discretion.
At the end of an inquest, the Coroner will create a statement stating who died and the nature of their death. A formal statement about the cause of death may be included e.g. Unlawful Killing, Lawful Killing, Road Traffic Collision, Natural Causes.
A narrative may also be created by the Coroner or Jury, based on their judgment, as to what they think the narrative is.