Oedipus Lex

It was with interest recently that I read about the appointment of Bruce Houlder QC as the Director of Service Prosecutions. In this post he will preside over the new joint services courts martial system which is expected to finally be operational in October 2009. Mr Houlder is, I believe, the first non military lawyer in recent times to take over the task of prosecuting soldiers, sailors and airmen.

My first reaction was that the MOD had gone all out to find and persuade a top lawyer from Rue Civvi to act as their Witchfinder General. Following the most expensive courts martial in British military history and the acquittal of all the soldiers involved (one was prosecuted for a lesser offence which he admitted to), I was concerned the MOD would be putting conviction rates and figures above all else. However, in an interview with the Times Mr Houlder is keen to point out that this isn’t the case, pointing out that his job is:

“…not to protect individuals from prosecution, nor to second-guess an honest decision made in the circumstances of an armed conflict for good reason that turns out to be wrong when looked at in the cold light of day…”

There is no doubt he has a difficult job to do. His new world is one that operates in ways in which he must still be struggling to come to terms with. I am not necessarily talking about the difficulties of collecting evidence in a war zone, because believe it or not, most military investigations aren’t actually conducted in Afghanistan or Iraq, more the challenges in understanding the military culture. Mr Houlder has been given an ‘intensive induction’, apparently. (I wonder if his involved a top shelfer and dance of the flaming arse holes?) However, in the same Times article he displays some naivety when complaining about soldiers under investigation closing ranks and suffering from “regimental amnesia”.  I’m afraid to say, for better or for worse, the tight regimental bonds are the bonds that make the British Army the best pound for pound army in the world. I am in no way excusing the closing of ranks, just pointing out that is happens and is always going to happen. Soldiers fight not for Queen and country but for each other. It’s a hackneyed expression but a true one.

However, I digress. I am, by nature, suspicious of those who placed Mr Houlder in his new role. He reports to the Attorney General but who else? He is certainly no fool, far from it. As a former chairman of the criminal bar he knows a thing or two about how things ought to be. He does, though, need to be certain that he is not used to up conviction rates and ensure investigations end with a good result. The government caught a lot of flack in the aftermath of recent high profile military acquittals but satisfying elements of the media or human rights lobby is in no way conducive with the rule of law.

But…the more I read of Mr Houlder’s interview the more I realised what he could bring to military and the way it does law. The military already experiences excellent conviction rates, over 50% of those pleading not guilty. What he will bring is the professionalism of the independent bar to an organisation crying out for modernisation. He intends to make the process more efficient and increase training for officers involved this is as well as introducing CPS procedures (it’s not all positive!). By making these procedures more robust and by ensuring that investigations are as thorough as they can possibly be, Mr Houlder can bring an element of respectability to the courts martial process.

With one side clamouring for convictions and the other insisting protection for troops, Mr Houlder is no doubt walking a tight-rope. He needs to be very sure he is steering not only a middle course but a fair one. He has the tools to do the job, the skills to pay the bills, he needs to use them carefully. Although vastly experienced with the criminal bar, this is something beyond simply ensuring a guilty man is punished. National pride, that double edged sword, is on the line and things could get political very quickly.