The Overseas Operations Bill – a very significant intervention from the Judge Advocate General

11th Jun 2020

This week, The Times reported that the head of the Service Justice System (SJS), Judge Advocate General Jeff Blackett, has written to the Secretary of State for Defence to express his ‘significant misgivings’ about the Government’s proposed Overseas Operations Bill.   He is reported to have described the legislation as  ‘ill-conceived’, and states that it risks ‘bring(ing) the UK armed forces into disrepute’ by preventing the punishment of serious crime.

The JAG’s intervention follows last week’s remarks from the Director of Service Prosecutions, Andrew Cayley QC. Pressed for his views on the Bill during an interview with BBC’s Law in Action, Mr Cayley remarked that the present state of affairs – where investigations into allegations of abuse by soldiers overseas have dragged on for too long – should not happen again. He said, ‘these matters need to be looked at properly at the time and competent and reasonable determinations made’. (Our emphasis). That is quite a different thing from saying that soldiers should be shielded from prosecution after the event, as this Bill envisages.

Both of these interventions are significant. They come from the two most senior members of the SJS who will know very well where the cause of this problem ultimately lies: it is the lack of competent, independent criminal investigations within a reasonable period of time of the allegations being made that has led to current state of affairs. In Northern Ireland, Afghanistan and Iraq, in most cases, there were no such investigations. Instead, allegations were initially investigated (if at all) by the chain of command itself or by the Royal Military Police who were not sufficiently independent or competent. And, as we know from domestic cases like Deepcut and the overseas case of Cpl Anne-Marie Ellement, those early investigative failures mean that everything that follows becomes – inevitably – the fruit of the poisoned tree.

That is the fault of the MoD. There are lots of practical things it could be doing now that would reduce the risk of this happening again. These were proposed in the recent Service Justice System Review (SJSR) by an independent judge and a former chief constable of police, which reported in February 2020.  In particular, the SJSR recommended that Special Investigations Branch (service police) officers should have meaningful and extended secondments into civilian police forces so that they can immerse themselves in the higher quality police work that goes on there; and that civilian police should deploy with service police when investigating serious crime overseas, injecting a much needed element of independence. Building up systems like this to ensure that in the future we are able to respond quickly, competently and independently to allegations of abuse overseas, is where the MoD’s resources would be better spent. That way victims may get justice and the unfairly accused are exonerated as swiftly as possible. Instead, the Government has chosen to make poorly evidenced assertions about the extent of the problem, plays to the gallery and risks putting the UK on a collision course with the International Criminal Court.

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