The trials and persecution of British soldiers – Overseas Operations (Service Personnel and Veterans) Act 2021

The conduct of the UK armed forces has traditionally been regulated by international law. These regulations include the law of armed conflict, the Geneva Convention 1949, the United Nations Convention against Torture, the Rome Convention 2001, the establishment of the International Criminal Court (ICC), as well as certain domestic law, such as the Armed Forces Act 2006 and the Armed Services Covenant.  

In recent times, there have been a number of decisions which expand the territorial application of the European Law of Human Rights. Many feel action needs to be taken to provide greater certainty and protection for military personnel against historical criminal and civil claims, described by some as ‘a sustained legal assault’. 

The Overseas Operations (Service Personnel and Veterans) Act 2021 (Overseas Operations Act) substantively came into force on 30 June 2021. According to the Ministry of Defence (MoD), it seeks to introduce measures “which require that the uniquely challenging context of overseas military operations, and the exceptional demands and stresses to which Her Majesty’s forces are subject on such operations, are taken into account in legal proceedings arising from historical overseas operations”.

For soldiers and other military personnel, being involved in battle or other military operations may require instant decision-making, as shown in prominent conflicts in recent history such as Northern Ireland, Iraq and Afghanistan. A soldier may wound or kill an enemy, including a civilian, and such conduct in the heat of the moment could be deemed as unwise, misjudged or excessive. 

Under international law, human rights law and national law, a soldier is legally required to observe and to conform to the law. War does not confer any sort of licence to kill or immunity or impunity for killing.  Nor does this new law. The laws of war must be adhered to, whatever the orders and whatever the circumstances. 

A number of cases have been brought or threatened, often repeatedly and vexatiously, against military personnel. 1,400 judicial review cases and 1,100 civil actions have arisen out of Iraq and Afghanistan. This practice has been called ‘lawfare’ – the judicialisation of war. 

All this activity has caused concern among defendants. They would argue they were engaged in the heat of battle, in very stressful and challenging circumstances. The incidents may have happened a good many years ago. Finding reliable witnesses for the defence may not be easy. 

Under English criminal law, there is no immunity from prosecution by passage of time and no statute of limitations, as exists in continental systems. In such cases, military personnel sometimes feel harassed and persecuted, and that they are victims of a very ungrateful and unfair practice. Morale in the armed services may be adversely affected.

Many of the alleged incidents, raised within multiple jurisdictions, have been discredited. There has, alas, been some evidence of some lawyers encouraging litigation for the purpose of financial gain. What the law does not protect against is a vexatious investigation.

Phil Shiner, then a solicitor with Public Interest Lawyers, issued and threatened legal actions for this reason. In February 2017, the Solicitors Regulation Authority summoned Shiner before the Solicitors Disciplinary Tribunal for making false claims.  He was found guilty and struck off for unprofessional conduct, dishonesty and lack of integrity. Many thousands of pounds of public money were spent on this matter. 

Crime

Section 1(4) of the Overseas Operations Act provides that there will be a presumption against prosecution after the expiration of period of five years from the date of the alleged offence, (unless the situation is exceptional (s.2). Matters to be given particular weight are:

·       The plausible adverse conditions the soldier was exposed to during deployment, including their experiences and responsibilities. For example, being exposed to unexpected or continuous threats, being in command of others who were exposed to similar circumstances, or being deployed alongside others who were killed or severely wounded in action.

·       In a case where there has been a relevant previous investigation and no compelling new evidence has become available, the public interest requires finality, and for the case to be achieved without undue delay.

·       The prosecutor must regard the exceptional demands and stresses which members of the UK armed forces are likely to endure while deployed on overseas operations, regardless of their length of service, rank or personal resilience.

·       Adverse effect means an adverse effect on their capacity to make sound judgements or exercise self-control or any other adverse effect on their mental health. A balance has to be struck and a fair decision considered. 

·       Prosecution requires the consent of the Attorney-General (s.5), acting as the independent Guardian of the Public Interest.

Northern Ireland

The new law does not apply to Northern Ireland. In principle, the Northern Ireland peace agreement must be maintained. Over 3,500 deaths resulted from The Troubles, including some 1,440 British military personnel. By now it has become very difficult to find reliable evidence, despite the absence of a limitation period in UK law. 

Six soldiers have been charged, within which the rejection of inadmissible evidence led to the first trial collapsing. In the second trial, the defendant Dennis Hutchings was charged with attempted murder in 1974, and died before the verdict 18 October 2021. 

International obligations

Critics of the original bill were concerned there might be derogation from the UK’s international obligations. In fact, matters of genocide, crimes against humanity, war crimes, torture and sexual offences are expressly excluded from the operation of the new statute and liability continues as before. In the event of the UK failing to take appropriate action in such cases, the jurisdiction of the ICC arises.

Civil Law

Civil cases will be subject to a time limit of three years, extendable to a maximum six years, and a human rights action must be brought not later than one year after a claimant is made aware of the facts. 

In exercising their discretion to extend in negligence, nuisance and breach of duty, the judge must consider the effect of the operational context on the ability of soldiers to accurately recall relevant events or actions. In this regard, members of the armed forces are more dependent upon their memories rather than records, given the operational context. The mental health of witnesses who are also soldiers is another important factor of consideration. Time runs from the injury or the acquisition of knowledge, the normal rule.

Under the Human Rights Act 1998, human rights actions must be brought within one year of the act after being raised, or with discretion in the judge for extension, and this is limited to a maximum of six years. 

Derogation

The UK government must keep under consideration whether it would be appropriate for Britain to make a derogation under Article 15(1) of the European Convention on Human Rights. There may be significant or imperative reasons of national security. 

The MoD has set up an inquiry under a High Court Judge Sir Robert Henriques to examine internal procedures for policy and investigations of allegations in future of alleged wrongdoing by soldiers engaged in hostilities. All the agencies concerned should act promptly and professionally and fairly, co-operate together, and avoid vexatious action.

Alec Samuels is a barrister.