Introduction
The Overseas Operations (Service Personnel and Veterans) Bill completed its second reading in the House of Commons last week. The innocuously worded Bill contains within it fundamental and dramatic changes in the application of the rule of law to criminal offences committed by British military personnel deployed on overseas operations more than five years ago. Once again in recent times, it calls into question the commitment of the current British government to the rule of law and the protection of fundamental rights. It also signals yet another dangerous and destabilising move in respect of the Peace Process in Northern Ireland.
In a nutshell, the Act makes it more difficult to prosecute military personnel in respect of criminal offences allegedly committed while deployed on operations abroad more than five years ago. It also imposes a rigid time limit on taking civil actions for compensation arising out of such operations, and it seems to increase the prospects of the UK government derogating from the European Convention on Human Rights (ECHR) in respect of future military operations abroad. This note focuses on the first of these.
Context
The government attempted to explain the need for the Bill by claiming that British soldiers serving in conflict zones such as Iraq and Afghanistan were the victims of vexatious litigation and false historical allegations of abuse. Seemingly, these were generated mostly by lawyers seeking to benefit financially from the extension of human rights law to overseas operations involving British troops. The government cited over 1,000 compensation claims filed between 2003 and 2009, as well as hundreds of judicial review applications. One lawyer (since struck off) was singled out as being responsible for a very large number of these claims.
The government was concerned that the volume of litigation and associated investigations into the conduct of the military personnel were oppressive on the soldiers concerned and damaging to the reputation of the UK across the globe. As often happens in these matters, closer scrutiny of the data can present a different interpretation. The government actually paid compensation in many of the claims, suggesting that they were not vexatious at all. Moreover, for every single case brought by alleged victims over the past 15 years, there were 25 cases brought by injured British troops against the Ministry of Defence. This suggests that the Bill may have been triggered more by a concern to protect the financial interests of the Ministry than protecting troops.
Even if the government’s case is taken at face value, its response in the Bill is extraordinary and disturbing. Not only does it subject civil actions for compensation to tighter time limits, but it also makes it more difficult to pursue prosecutions of military personnel for criminal offences allegedly committed during operations overseas. By contrast with the number of civil claims instituted, there have only be seven prosecutions initiated in connection with the deployment in Iraq (six of which were subsequently dropped), and none at all from the deployment in Afghanistan. One would have to suspect that the controversy over civil claims (whether justified or not) is being used as a convenient cover for putting British military personnel needlessly beyond the reach of the criminal law in certain circumstances.
Equality before the law
British law has never recognised a distinction between civilians and military personnel (or police officers) in respect of criminal liability. All are subject to the same criminal law principles. There is no special exemption for a soldier on active duty, even in time of war. If he or she kills a civilian, or an enemy combatant, without lawful justification, he or she will be liable to be prosecuted on the same principles as a civilian in similar circumstances. This reflects the notion that everyone is equal under the law, and it can be considered one of the essential features of the rule of law and the British Constitution.
Clearly, it would be a momentous and unprecedented change to confer military personnel with even a degree of selective protection against prosecution for criminal offences committed while deployed on operational duties. It would, for the first time, introduce into our criminal law the notion of a privileged class based on status (other than age).
Given the broader context of the times we are currently living in, it is particularly disturbing that this privileged status is being conferred on armed soldiers who are deployed and directed, ultimately, by the government of the day. It brings into play the prospect of government agents committing criminal offences in the service of the government, and then being protected against prosecution in order to protect the political interests of that same government.
It also introduces a precedent that can be applied in the future to other public officials (such as police officers), and maybe even private sector security personnel, and so on. While that may seem an extreme and alarmist interpretation, it is necessary to point it out in order to appreciate the enormity of what is being introduced in this extraordinary Bill.
Presumption against prosecution
The Bill introduces a presumption against prosecution in respect of an alleged offence by a member of the British armed forces while deployed on operations overseas. Significantly, these operations are not confined to wars. They include peacekeeping operations, and operations for dealing with terrorism, civil unrest or serious public disorder in which the forces come under attack or face the threat of attack or violent resistance.
The presumption kicks in after five years from the date on which the conduct in question took place. When applicable, its effect is that the prosecutor should only take a decision to prosecute, or to continue a prosecution, in exceptional circumstances. As explained above, the very concept of such a presumption is extraordinary in this context.
Equally striking are the specified factors which the prosecutor must also consider when deciding whether to prosecute. He or she must give particular consideration to, for example, the effect on the person’s capacity to make sound judgments or exercise sound control in the conditions to which he or she was exposed at the time. In considering these matters, the prosecutor must have regard to the exceptional demands and stresses to which members of the forces are likely to be subject while deployed on overseas operations. Moreover, the prosecutor is required to give particular weight to these factors only insofar as they tend to reduce the person’s culpability.
These provisions are unusual by any standard. Typically, a prosecutor will decide whether or not to prosecute primarily on the basis of the evidence available. It is not part of the prosecutor’s role to attempt an assessment of whether, for example, the suspect had the capacity to make a sound judgment at the time of his or her acts or omissions relevant to the alleged offence. These are matters for the court at trial. It is surely unprecedented for legislation to drag such matters back into prosecutorial decision-making. The net effect may well be to dispose of possible criminal offences behind the closed doors of the prosecutor’s office, rather than in the public and transparent scrutiny of the court room.
The Bill also requires the prosecutor to give particular weight to the public interest in finality in any case where there has been a previous investigation and no new compelling evidence has emerged. Significantly, this will be satisfied simply where there has been an investigation into the conduct by an investigating authority and no new evidence has emerged that was not taken into account by that investigation.
The investigating authority in this context could be the service’s own police force, a UK police force (including the Ministry of Defence Police) or an overseas police force (such as a police force in Iraq or Afghanistan). It does not matter that the quality or independence of the investigation has been called into question, or even that the investigation did not lead to a decision on whether to prosecute. It will be sufficient that it is no longer active.
The combined effect of these measures is such that it would surely only be in the most exceptional circumstances that a prosecutor would initiate or continue a prosecution of services personnel for an offence allegedly committed more than five years earlier during an overseas operation.
Attorney General’s consent
Unusually, and significantly, a prosecution can only be taken with the consent of the Attorney General in any case where the presumption against prosecution applies. This compounds the presumption by introducing a nakedly political dimension to decisions on the prosecution of members of the armed forces for an offence allegedly committed while deployed on overseas operations. The reality is that the Attorney General is a political, as well as a legal, figure. He or she is a member of the government of the day and, as such, should not have a regular statutory role in taking prosecutorial decisions on serious criminal offences against the person in situations where the government of the day is likely to have a vested political interest.
The relatively few statutory provisions in which the consent of the Attorney General is required for prosecution usually concern situations involving sensitive public policy issues, national security or relations with other governments or international bodies. Extending it to situations where a member of the armed forces commits a serious offence while deployed on operational duties may generate the perception that such prosecutions are influenced by political considerations.
No exemption for torture
Broadly, the provisions of the Act apply to criminal offences generally, with specific exceptions only for sexual offences and certain crimes within the jurisdiction of the International Criminal Court (eg. genocide, crimes against humanity and war crimes). It is easy to understand and welcome these exemptions. What is not easy to understand is the failure to exclude torture. Equally perplexing is the government’s refusal to accept the obvious case for its exclusion.
Just like sexual offences, torture has no role to play in military operations against an enemy or civilians. Moreover, the prohibition on torture is one of the few human rights protections that admit of no exceptions in the ECHR. The prohibition is absolute. Yet by applying a presumption against prosecution for torture, and by rendering any such prosecution dependent on the prior consent of the Attorney General, the Bill resiles from this basic universal standard.
Effectively, it is saying that there may be circumstances in which we would not prosecute service personnel for acts of torture during overseas operations. By way of stark contrast, there is no presumption against prosecution for the common law offence of outraging public decency (eg. urinating in a public place) when committed by service personnel deployed on overseas operations.
It would appear that the incomprehensible failure to exclude torture from the Bill’s provisions was a deliberate decision on the part of the government. Seemingly, it was originally intended to be included as one of the exemptions from the Bill, but a political decision was taken at the last minute to remove that exemption. The potential damage to the rule of law and the status of Britain’s commitment to the protection of basic human rights is huge. It may result eventually in the UK being found in breach of the ECHR’s absolute prohibition on torture. Historical events in Northern Ireland, and the more recent allegations of rendition for torture, are important reminders of the need for robust legal protections in this area, even in the UK.
Northern Ireland
Any attempt to extend the terms of this Bill to Northern Ireland would be a dangerous and outrageous attack on the ongoing Peace Process there. It would also provide an acute illustration of the full import of the Bill’s provisions. Prosecutions for the Army killings of 13 civilians and the wounding of 13 others on Bloody Sunday would almost certainly be blocked, even though the Saville Inquiry found that there was no justification for the shootings. The same would apply to prosecutions in respect of many other disputed killings by soldiers, or in respect of paramilitary murders believed to have been assisted by British security personnel.
On the face of it, the Bill does not apply to Northern Ireland. It is deeply disturbing, however, that there is clear political intent to extend it, or equal provisions, to Northern Ireland. When the Bill was introduced to Parliament on the first reading, it was accompanied by a written ministerial statement giving a commitment to make equal provision in respect of Northern Ireland. That commitment was repeated unequivocally by the government sponsors in the course of the debate on the second reading.
It remains to be seen how this commitment is delivered. Nevertheless, it is submitted that the promise to do so is objectionable and reckless not just for peace and justice in Northern Ireland, but also for the signal that it sends to the rest of the UK. If it can apply to past operations in Northern Ireland, why can it not be extended to future military operations in aid of the police in the rest of the UK?
Derogation from ECHR
It is worth noting the rather strange provision in the Bill that imposes a statutory duty on the Secretary of State to keep under consideration whether it would be appropriate for the UK to derogate from the ECHR in respect of overseas military operations. It is not entirely clear why it was considered necessary to make such provision. The reality is that the ECHR already contains provision for a participating State to derogate in certain circumstances. By including it as an amendment to the Human Rights Act, however, the government may be sending out a signal that it is willing to derogate from the ECHR in respect of future overseas deployments. Perhaps it sees that as an expedient cover for further domestic legislation protecting personnel and the government itself against prosecutions and civil claims.
Conclusion
The Bill reflects yet another assault on traditional British rule of law values. There is a very real sense that the current administration is playing fast and loose with fundamental principles that have been a hallmark of the British legal and political systems for hundreds of years. Not all of the examples are confined to security and criminal justice. The current United Kingdom Internal Market Bill, and its provision to permit overriding the UK’s own Brexit Agreement with the EU, provides an astounding example in a very different context. Ultimately, the combined effect of such measures may prove more damaging to British interests and values than the perceived dangers at which they are aimed.