The Overseas Operations Bill, which is having its second reading on 23 September 2020, will bring into British law a legal presumption against prosecution in serious criminal cases involving service personnel overseas, where 5 years have passed since the date of the alleged crime; and will restrict the circumstances in which legal claims against the Ministry of Defence can be brought after the primary limitation period has passed.
For a detailed briefing on the Overseas Operations Bill, and our concerns about it, please see our page here.
Here is a brief checklist of our concerns about it.
Criminal proceedings
- There have been just 7 prosecutions of British soldiers arising from the Iraq War. The Director of Prosecutions has confirmed that it is highly unlikely that any more will be brought. (The Bill does not apply to Northern Ireland (NI), although the Govt has said that it wants to bring in similar provisions that would apply to NI. In NI, it is worth noting that there have been just 6 prosecutions of soldiers arising from a conflict that lasted 30 years). The Govt appears to want to legislate against a phenomena of prosecutions that simply does not exist.
- The Bill does nothing to address the real problem for both soldiers and civilians – which is the failure of the military justice system to fairly and promptly respond to allegations of serious criminal acts by British soldiers in the context of overseas operations. If the Govt was serious about limiting the so-called ‘cycle of investigations’ it would have prioritised military justice reform which would benefit soldiers as well as civilians. But the Bill does nothing for military justice reform.
- The sad fact is that there have been incidences of abuse and evidence that crimes have been committed during overseas operations, by a small minority of soldiers. The Govt states that it does not want to make it harder to prosecute in genuine cases of criminality – but the Bill will result in exactly that outcome.
- The provisions that create a presumption against prosecution where 5 years have passed do not exclude the most serious offences: murder, torture, genocide and crimes against humanity. This risks putting the UK in breach of international humanitarian law and international human rights law. It risks putting the UK on a collision course with the International Criminal Court and makes it more, not less likely that our soldiers may find themselves before the ICC in the future.
- The Bill does exclude sexual offences. The logic of this is hard to understand. It means that a soldier accused of beating a detainee may avoid prosecution, but a soldier accused of sexually assaulting a detainee may not.
- Lots of senior military, legal and political figures are speaking out against the Bill. This includes the Judge Advocate General who was not consulted prior to the Bill’s publication. Other vocal opponents are the former head of the armed forces, Field Marshal Charles Guthrie, ex-defence secretary Sir Malcolm Rifkind, former Attorney General Dominic Grieve QC and the former Commander-in-Chief of the Land Forces, General Sir Nick Parker. The Army’s former senior legal advisor to the 1st Armoured Division during the Iraq War of 2003 has published this critical piece in the Guardian and David Davis MP has published this comment piece in the Times.
- Criminal prosecutors already have the legal powers they need to make sensible, fair and informed decisions about whether there is evidence to support a prosecution and, if so, whether it is in the public or service interest to prosecute. They should be properly trained and resourced to do their jobs properly. Their decisions should not be prone to be overridden by the Attorney-General in the circumstances proposed by the Bill.
Civil proceedings
- The Bill makes it harder for people to bring claims against the MoD. But the overwhelming majority of people that bring claims against the MoD are service personnel. Because of this Bill, soldiers will find it harder to bring claims for compensation against the MoD. The defendant in all of these claims – whether they are brought by civilians or soldiers – is the MoD. It is a self-serving proposal, misleadingly sold and packaged as good for soldiers.
- The Govt refers to the need to address the problem of vexatious claims being brought by unscrupulous lawyers. But the Solicitors Regulatory Authority regulates, disciplines and strikes off solicitors who break the rules all the time, as it did over 3 years ago in the Shiner case which is repeatedly cited by the Govt as justifying this Bill.
- More importantly, the courts have strong strike out powers and use them all the time where a claim discloses no reasonable grounds of success.
- The courts also have strong powers to deal with vexatious litigants. Where a litigant is vexatious, their right of access to the court can be lawfully restricted.
- And Section 33 of the Limitation Act 1980 already contains everything the court needs to deal with stale claims that it would be unfair on the MoD to allow to proceed after the primary limitation period has passed. It also enables the court to take into account all of the relevant circumstances of the case, which would include the difficult overseas environment in which the conduct was alleged to have happened.
- The Bill requires the potential impact on the mental health of an Armed Forces witness of allowing a claim to proceed, to be a factor that the Court must take into account. But a professional person giving evidence in an inquest or in civil proceedings will always find the prospect highly stressful and difficult – as any nurse, GP, police officer or social worker whose conduct is called into question will tell you. The Court has lots of measures that it can put in place to support a vulnerable witness which it regularly employs. The Govt has been advised to bring in formal rules to make it easier for the courts to protect vulnerable witnesses. The Bill is silent about them.
- Based on statements made in Parliament, it appears as though the basis on which the Govt has been asserting that lots of the Iraqi claims were brought after 6 years had passed from the date of the index event, may have been wrong. The Govt seems to have been calculating time from the date that the claims were served on the MoD, rather than the date that the claim was issued in court, which is the relevant date. To date, the Govt has declined to provide the correct information on the basis of cost so we still do not know just how many of those claims would have been prevented by the current proposals.
- In any case, sometimes, legal claims need to be brought late – indeed the Govt has confirmed that since 2007, 195 claims were brought by soldiers arising from incidents in Iraq, after the primary limitation period had passed. The Govt’s assurances that the 6 years hard time limit for bringing a legal claim will not affect soldiers because the key date for them in a PTSD claim will still be date of knowledge or diagnosis misses the point – questions about the date of knowledge and diagnosis are rarely clear cut and there is usually vigorous argument about them, and the MoD can be expected to use every tool at its disposal to dispose of legal claims where an argument can be made that the claimant is out of time. It is expected that PTSD claims and noise-induced hearing loss claims will be particularly affected. The Govt also refers critics to the Armed Forces Compensation Scheme (AFCS) as a scheme that is available to help service personnel – when anyone who works in this field knows that veterans find navigating the AFCS incredibly bureaucratic and difficult and the AFCS under-compensates their claims anyway; and anyone who has ever litigated against the MoD more generally knows how aggressive and vigorously they will run all limitation arguments at their disposal, including against the most vulnerable service or former service people. The idea that the MoD’s lawyers will not use these proposals against service personnel is incredibly naive.
The Govt should press pause on the Bill, re-examine and, as necessary, correct the information on which it is based, consult with the senior military, legal and political figures that are so concerned about it, and think again.