Overseas Operations (Service Personnel and Veterans) Bill (HC Bill 117)

A

BILL

TO

Make provision about legal proceedings and consideration of derogation from
the European Convention on Human Rights in connection with operations of
the armed forces outside the British Islands.

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—

Part 1 Restrictions on prosecution for certain offences

Presumption against prosecution

1 Prosecutorial decision regarding alleged conduct during overseas operations

(1) 5Where a relevant prosecutor makes a decision to which this section applies and
the conditions in subsections (3) and (4) are met, the prosecutor must, in
making the decision—

(a) apply the principle set out in section 2, and

(b) comply with section 3.

(2) 10This section applies to a decision of a relevant prosecutor as to—

(a) whether or not proceedings should be brought against a person for a
relevant offence, or

(b) whether or not any proceedings against a person for a relevant offence
should be continued,

15(but does not apply to a prosecutor’s decision so far as it relates to whether or
not there is sufficient evidence to justify prosecution).

(3) The first condition is that the alleged conduct took place (outside the British
Islands) at a time when the person was—

(a) a member of the regular or reserve forces, or a member of a British
20overseas territory force to whom section 369(2) of the Armed Forces Act
2006 (persons subject to service law) applies, and

Overseas Operations (Service Personnel and Veterans) BillPage 2

(b) deployed on overseas operations.

(4) The second condition is that the period of 5 years beginning with the day on
which the alleged conduct took place has expired.

(5) If the offence is alleged to have continued over a period of days, the 5 year
5period mentioned in subsection (4) is to be taken to begin with the last of those
days.

(6) In this Part “overseas operations” means any operations outside the British
Islands, including peacekeeping operations and operations for dealing with
terrorism, civil unrest or serious public disorder, in the course of which
10members of Her Majesty’s forces come under attack or face the threat of attack
or violent resistance.

2 Presumption against prosecution

The principle referred to in section 1(1) is that it is to be exceptional for a
relevant prosecutor making a decision to which that section applies to
15determine that proceedings should be brought against the person for the
offence or, as the case may be, that the proceedings against the person for the
offence should be continued.

3 Matters to be given particular weight

(1) In making a decision to which section 1 applies, a relevant prosecutor must
20give particular weight to the matters set out in subsection (2) (so far as they
tend to reduce the person’s culpability or otherwise tend against prosecution).

(2) Those matters are—

(a) the adverse effect (or likely adverse effect) on the person of the
conditions the person was exposed to during deployment on the
25operations mentioned in section 1(3)(b), including their experiences
and responsibilities (for example, being exposed to unexpected or
continuous threats, being in command of others who were so exposed,
or being deployed alongside others who were killed or severely
wounded in action);

(b) 30in a case where there has been a relevant previous investigation and no
compelling new evidence has become available, the public interest in
finality (as regards how the person is to be dealt with) being achieved
without undue delay.

(3) In considering the matter in subsection (2)(a), the prosecutor must have regard
35to the exceptional demands and stresses to which members of Her Majesty’s
forces are likely to be subject while deployed on overseas operations,
regardless of their length of service, rank or personal resilience.

(4) In subsection (2)(a) “adverse effect”, in relation to a person, means—

(a) an adverse effect on their capacity to make sound judgements or
40exercise self control, or

(b) any other adverse effect on their mental health,

and in this subsection “effect” means an effect at the time of the alleged
conduct.

Overseas Operations (Service Personnel and Veterans) BillPage 3

4 Section 3: supplementary

(1) For the purposes of section 3(2)(b) and this section “relevant previous
investigation” means an investigation into the alleged conduct which—

(a) was carried out by an investigating authority,

(b) 5has ceased to be active, and

(c) either did not lead to any decision as to whether or not the person
should be charged with an offence, or led to a decision that the person
should not be charged with any offence.

(2) For the purposes of section 3(2)(b), where there has been at least one relevant
10previous investigation in relation to the alleged conduct, evidence—

(a) is not “new” if it has been taken into account in the relevant previous
investigation (or in any of them);

(b) otherwise, is “new”.

Consent to prosecution

5 15Requirement of consent to prosecute

(1) This section applies where—

(a) the condition in subsection (4) is met in relation to potential
proceedings against a person for a relevant offence, and

(b) the period of 5 years beginning with the day on which the alleged
20conduct took place has expired.

(2) If the offence is a service offence, no proceedings may be instituted against the
person for the offence under the Armed Forces Act 2006 except with the
consent of the Attorney General.

(3) No proceedings may be instituted against the person for the offence—

(a) 25where the offence is punishable with a criminal penalty by the law of
England and Wales, except with the consent of the Attorney General,

(b) where the offence is punishable with a criminal penalty by the law of
Northern Ireland, except with the consent of the Advocate General for
Northern Ireland.

(4) 30The condition mentioned in subsection (1)(a) is that the alleged conduct took
place (outside the British Islands) at a time when the person was—

(a) a member of the regular or reserve forces, or a member of a British
overseas territory force to whom section 369(2) of the Armed Forces Act
2006 (persons subject to service law) applies, and

(b) 35deployed on overseas operations.

(5) If the offence is alleged to have continued over a period of days, the 5 year
period mentioned in subsection (1)(b) is to be taken to begin with the last of
those days.

General

6 40“Relevant offence”

(1) “Relevant offence” means any of the following (but with the exceptions set out
in subsections (2) to (5))—

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(a) an offence under section 42 of the Armed Forces Act 2006 (criminal
conduct) or any provision mentioned in paragraph 1(2)(a) to (c) of
Schedule 1 (provisions superseded by that section), and

(b) an offence punishable with a criminal penalty by the law of any part of
5the United Kingdom.

(2) An offence is not a “relevant offence” if it is committed against an individual
who at the time when the offence is committed is—

(a) a member of the regular or reserve forces,

(b) a member of a British overseas territory force,

(c) 10a Crown servant, or

(d) a defence contractor.

(3) A service offence is not a “relevant offence” if it is an excluded offence by virtue
of Part 1 of Schedule 1.

(4) An offence punishable with a criminal penalty by the law of England and
15Wales, or of Northern Ireland, is not a “relevant offence” if it is an excluded
offence in that part of the United Kingdom by virtue of Part 2 or 4 of Schedule 1.

(5) An offence punishable with a criminal penalty by the law of Scotland is not a
“relevant offence” if it is an excluded offence in Scotland by virtue of Part 3 or
4 of Schedule 1.

(6) 20The Secretary of State may by regulations made by statutory instrument
amend Schedule 1.

(7) Regulations under subsection (6) may include transitional or saving provision.

(8) A statutory instrument containing (whether alone or with other provision)
regulations under subsection (6) may not be made unless a draft of the
25instrument has been laid before, and approved by a resolution of, each House
of Parliament.

7 General interpretation etc

(1) Where—

(a) the offence mentioned in section 1(2) or 5(1)(a) is murder or any other
30offence one of the elements of which is causing a person’s death, and

(b) the death occurred after the day on which the person sustained the
injury that caused it,

the day (or time) of the alleged conduct is not to be taken to be different from
what it would have been if the death had occurred when the injury was
35sustained.

(2) In this Part references to the British Islands include the territorial sea adjacent
to the United Kingdom and the territorial sea adjacent to any of the Channel
Islands or the Isle of Man.

(3) The following are “relevant prosecutors” for the purposes of this Part—

(a) 40the Director of Service Prosecutions and any person appointed under
section 365 of the Armed Forces Act 2006 (prosecuting officers);

(b) in England and Wales, the Director of Public Prosecutions, a Crown
Prosecutor and any person to whom the institution or taking over of
proceedings for the offence mentioned in section 1(2) has been assigned
45under section 5(1) of the Prosecution of Offences Act 1985;

Overseas Operations (Service Personnel and Veterans) BillPage 5

(c) in Scotland, any prosecutor as defined in section 307(1) of the Criminal
Procedure (Scotland) Act 1995 (other than a private prosecutor);

(d) in Northern Ireland, the Director of Public Prosecutions for Northern
Ireland, the Deputy Director of Public Prosecutions for Northern
5Ireland, a Public Prosecutor and any person to whom the institution or
taking over of proceedings for the offence mentioned in section 1(2) has
been assigned under section 36(2) of the Justice (Northern Ireland) Act
2002 (c. 26 (N.I.)).

(4) In this Part—

  • 10“alleged conduct”, in relation to proceedings or potential proceedings for
    an offence, means the act or omission alleged to constitute the offence;

  • “British overseas territory force” means any of Her Majesty’s forces that is
    raised under the law of a British overseas territory;

  • “Crown servant” means a person employed by or in the service of the
    15Government of the United Kingdom;

  • “defence contractor” means a person engaged in providing goods or
    services for the purposes of any of Her Majesty’s forces under contract
    (whether as, or on behalf of, a party to the contract);

  • “Her Majesty’s forces” has the same meaning as in the Armed Forces Act
    202006 (see section 374 of that Act);

  • “investigating authority” means—

    (a)

    a service police force,

    (b)

    a UK police force, or

    (c)

    an overseas police force;

  • 25“overseas operations” has the meaning given by section 1(6);

  • “overseas police force” has the same meaning as in the Armed Forces Act
    2006 (see section 375 of that Act);

  • “the regular forces” has the same meaning as in the Armed Forces Act
    2006 (see section 374 of that Act);

  • 30“relevant offence” has the meaning given by section 6;

  • “relevant previous investigation” has the meaning given by section 4;

  • “relevant prosecutor” has the meaning given by subsection (3);

  • “the reserve forces” has the same meaning as in the Armed Forces Act
    2006 (see section 374 of that Act);

  • 35“service offence” has the same meaning as in the Armed Forces Act 2006
    (see section 50(2) of that Act);

  • “service police force” has the same meaning as in the Armed Forces Act
    2006 (see section 375 of that Act);

  • UK police force” has the same meaning as in the Armed Forces Act 2006
    40(see section 375 of that Act).

(5) Subsections (2) and (3) of section 368 of the Armed Forces Act 2006 (references
to members of the regular forces) apply for the purposes of this Part as they
apply for the purposes of that Act.

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Part 2 Overseas operations: limitation periods and human rights

Limitation

8 Restrictions on time limits to bring actions: England and Wales

(1) 5Part 1 of Schedule 2 amends the Limitation Act 1980—

(a) to limit the court’s discretion to disapply time limits for actions in
respect of personal injuries or death which relate to overseas operations
of the armed forces, and

(b) to specify additional factors to which a court must have regard in
10exercising that discretion.

(2) Part 2 of Schedule 2 amends the Foreign Limitation Periods Act 1984 to modify
the effect of foreign limitation law (where such law applies by reason of that
Act) in respect of actions which relate to overseas operations of the armed
forces.

9 15Restrictions on time limits to bring actions: Scotland

(1) Part 1 of Schedule 3 amends the Prescription and Limitation (Scotland) Act
1973—

(a) to limit the court’s power to override time limits for actions in respect
of personal injuries or death which relate to overseas operations of the
20armed forces, and

(b) to specify factors to which a court must have regard in exercising that
power.

(2) Part 2 of Schedule 3 amends that Act to modify the effect of foreign limitation
law (where such law applies by virtue of that Act) in respect of actions which
25relate to overseas operations of the armed forces.

10 Restrictions on time limits to bring actions: Northern Ireland

(1) Part 1 of Schedule 4 amends the Limitation (Northern Ireland) Order 1989 (S.I.
1989/1339 (N.I. 11))—

(a) to limit the court’s discretion to disapply time limits for actions in
30respect of personal injuries or death which relate to overseas operations
of the armed forces, and

(b) to specify additional factors to which a court must have regard in
exercising that discretion.

(2) Part 2 of Schedule 4 amends the Foreign Limitation Periods (Northern Ireland)
35Order 1985 (S.I. 1985/754 (N.I. 5)S.I. 1985/754 (N.I. 5)) to modify the effect of foreign limitation law
(where such law applies by reason of that Order) in respect of actions which
relate to overseas operations of the armed forces.

11 Court’s discretion to extend time in certain Human Rights Act proceedings

(1) The Human Rights Act 1998 is amended as follows.

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(2) After section 7 insert—

7A Limitation: overseas armed forces proceedings

(1) A court or tribunal exercising its discretion under section 7(5)(b) in
respect of overseas armed forces proceedings must do so—

(a) 5in accordance with subsection (2), and

(b) subject to the rule in subsection (4).

(2) The court or tribunal must have particular regard to—

(a) the effect of the delay in bringing proceedings on the cogency of
evidence adduced or likely to be adduced by the parties, with
10particular reference to—

(i) the likely impact of the operational context on the ability
of individuals who are (or, at the time of the events to
which the proceedings relate, were) members of Her
Majesty’s forces to remember relevant events or actions
15fully or accurately, and

(ii) the extent of dependence on the memories of such
individuals, taking into account the effect of the
operational context on the ability of such individuals to
record, or to retain records of, relevant events or actions;

(b) 20the likely impact of the proceedings on the mental health of any
witness or potential witness who is (or, at the time of the events
to which the proceedings relate, was) a member of Her
Majesty’s forces.

(3) In subsection (2) references to “the operational context” are to the fact
25that the events to which the proceedings relate took place in the context
of overseas operations, and include references to the exceptional
demands and stresses to which members of Her Majesty’s forces are
subject.

(4) The rule referred to in subsection (1)(b) is that overseas armed forces
30proceedings must be brought before the later of—

(a) the end of the period of 6 years beginning with the date on
which the act complained of took place;

(b) the end of the period of 12 months beginning with the date of
knowledge.

(5) 35In subsection (4), the “date of knowledge” means the date on which the
person bringing the proceedings first knew, or first ought to have
known, both—

(a) of the act complained of, and

(b) that it was an act of the Ministry of Defence or the Secretary of
40State for Defence.

(6) “Overseas armed forces proceedings” means proceedings—

(a) against the Ministry of Defence or the Secretary of State for
Defence, and

(b) in connection with overseas operations.

(7) 45“Overseas operations” means any operations outside the British
Islands, including peacekeeping operations and operations for dealing
with terrorism, civil unrest or serious public disorder, in the course of

Overseas Operations (Service Personnel and Veterans) BillPage 8

which members of Her Majesty’s forces come under attack or face the
threat of attack or violent resistance.

(8) In this section the reference to the British Islands includes the territorial
sea adjacent to the United Kingdom and the territorial sea adjacent to
5any of the Channel Islands or the Isle of Man.

(9) In this section “Her Majesty’s forces” has the same meaning as in the
Armed Forces Act 2006 (see section 374 of that Act).”

(3) In section 22 (short title, commencement, application and extent), after
subsection (4) insert—

(4A) 10Section 7A (limitation: overseas armed forces proceedings) applies to
proceedings brought under section 7(1)(a) on or after the date on which
section 7A comes into force, whenever the act in question took place.”

Duty to consider derogation

12 15Duty to consider derogation from Convention

After section 14 of the Human Rights Act 1998 insert—

14A Duty to consider derogation regarding overseas operations

(1) In relation to any overseas operations that the Secretary of State
considers are or would be significant, the Secretary of State must keep
20under consideration whether it would be appropriate for the United
Kingdom to make a derogation under Article 15(1) of the Convention.

(2) In this section—

  • “overseas operations” means operations of Her Majesty’s forces
    outside the British Islands in the course of which members of
    25those forces may come under attack or face the threat of attack
    or violent resistance;

  • “Her Majesty’s forces” has the same meaning as in the Armed
    Forces Act 2006 (see section 374 of that Act).”

Part 3 30General

13 Power to make consequential provision

(1) The Secretary of State or the Lord Chancellor may by regulations make
provision that is consequential on any provision made by this Act.

(2) Regulations under this section are to be made by statutory instrument and—

(a) 35may include transitional or saving provision;

(b) may amend, repeal or revoke any provision of or made under primary
legislation.

(3) The provision referred to in subsection (2)(b) does not include a provision of
legislation passed or made after the end of the session of Parliament in which
40this Act is passed.

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(4) A statutory instrument containing (whether alone or with other provision)
regulations under this section that amend, repeal or revoke primary legislation
may not be made unless a draft of the instrument has been laid before and
approved by a resolution of each House of Parliament.

(5) 5Any other statutory instrument containing regulations under this section is
subject to annulment in pursuance of a resolution of either House of
Parliament.

(6) In this section “primary legislation” means—

(a) an Act,

(b) 10an Act of the Scottish Parliament, or

(c) Northern Ireland legislation.

14 Extent

(1) This Act extends to England and Wales, Scotland and Northern Ireland, subject
as follows.

(2) 15Section 8 and Schedule 2 extend to England and Wales only.

(3) Section 9 and Schedule 3 extend to Scotland only.

(4) Section 10 and Schedule 4 extend to Northern Ireland only.

15 Commencement and application

(1) This Part comes into force on the day on which this Act is passed.

(2) 20The other provisions of this Act come into force on such day as the Secretary of
State or the Lord Chancellor may by regulations appoint.

(3) Different days may be appointed for different purposes.

(4) The Secretary of State or the Lord Chancellor may by regulations make
transitional or saving provision in connection with the coming into force of any
25provision of this Act.

(5) Regulations under this section are to be made by statutory instrument.

(6) None of the provisions of Part 1 applies to proceedings instituted before the
day on which the provision comes into force.

(7) Part 1 of Schedule 2 applies to an action brought on or after the date on which
30that Part comes into force, whenever the cause of action accrued.

(8) Part 1 of Schedule 3 applies to an action brought on or after the date on which
that Part comes into force, whenever the right of action accrued.

(9) Part 2 of Schedule 3 applies to an action brought on or after the date on which
that Part comes into force, whenever the events to which the action relates took
35place.

(10) Part 1 of Schedule 4 applies to an action brought on or after the date on which
that Part comes into force, whenever the cause of action accrued.