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

Overseas Operations (Service Personnel and Veterans) BillPage 10

16 Short title

This Act may be cited as the Overseas Operations (Service Personnel and
Veterans) Act 2020.

Overseas Operations (Service Personnel and Veterans) BillPage 11

SCHEDULES

Section 6

SCHEDULE 1 Excluded offences for the purposes of section 6

Part 1 5Criminal conduct etc under armed forces legislation

Criminal conduct etc under armed forces legislation

1 (1) An offence under section 42 of the Armed Forces Act 2006 (criminal conduct)
is an “excluded offence” if the corresponding civil offence is an offence
referred to in any of paragraphs 2 to 13.

(2) 10In sub-paragraph (1) the reference to section 42 of the Armed Forces Act 2006
is to be taken to include a reference to—

(a) section 70 of the Army Act 1955 (civil offences),

(b) section 70 of the Air Force Act 1955 (civil offences), and

(c) section 42 of the Naval Discipline Act 1957 (civil offences).

15Corresponding offences under law of England and Wales (including under repealed provisions)

2 An offence under any provision of the Sexual Offences Act 1956.

3 An offence under section 1 of the Indecency with Children Act 1960
(indecent conduct towards child under 14).

4 An offence under section 54 of the Criminal Law Act 1977 (inciting child
20under 16 to commit incest).

5 An offence under section 1 of the Protection of Children Act 1978 (indecent
photographs of children).

6 An offence under section 160 of the Criminal Justice Act 1988 (possession of
indecent photograph of a child).

7 25An offence under any provision of the Sexual Offences Act 2003.

8 An offence under section 63 of the Criminal Justice and Immigration Act
2008 (possession of extreme pornographic images).

9 An offence under section 62 of the Coroners and Justice Act 2009 (possession
of prohibited images of children).

10 30An offence under section 33 of the Criminal Justice and Courts Act 2015
(disclosing private sexual photographs and films with intent to cause
distress).

Overseas Operations (Service Personnel and Veterans) BillPage 12

11 An offence under section 2 of the Modern Slavery Act 2015 (human
trafficking) committed with a view to exploitation that consists of or
includes behaviour within section 3(3) of that Act (sexual exploitation).

12 An offence at common law of outraging public decency.

13 5An offence within any of paragraphs 17 to 19 (certain crimes against
humanity and war crimes).

14 A reference in this Part of this Schedule to an offence (“offence A”)
includes—

(a) a reference to an attempt to commit offence A,

(b) 10a reference to a conspiracy to commit offence A,

(c) a reference to incitement to commit offence A,

(d) a reference to an offence under Part 2 of the Serious Crime Act 2007
in relation to which offence A is the offence (or one of the offences)
which the person intended or believed would be committed, and

(e) 15a reference to aiding and abetting, counselling or procuring the
commission of offence A.

Interpretation etc

15 (1) In paragraph 1(1) the reference to the “corresponding civil offence” is—

(a) in relation to an offence under section 42 of the Armed Forces Act
202006, to the corresponding offence under the law of England and
Wales within the meaning of that section;

(b) in relation to an offence under section 70 of the Army Act 1955 or
section 70 of the Air Force Act 1955, to the corresponding civil
offence within the meaning of that Act;

(c) 25in relation to an offence under section 42 of the Naval Discipline Act
1957, to the civil offence within the meaning of that section.

(2) Section 48 of the Armed Forces Act 2006 (supplementary provisions relating
to ancillary service offences) applies for the purposes of sub-paragraph (1)(a)
as it applies for the purposes of the provisions of that Act referred to in
30subsection (3)(b) of that section.

Part 2 International Criminal Court Act 2001

Excluded offences within this Part

16 An offence under the law of England and Wales or Northern Ireland within
35any of paragraphs 17 to 23 is an “excluded offence” in that part of the United
Kingdom.

England and Wales

17 An offence under section 51 of the International Criminal Court Act 2001
(genocide, crimes against humanity and war crimes) of committing—

(a) 40a crime against humanity within article 7.1(g), or

(b) a war crime within—

(i) article 8.2(b)(xxii) (which relates to international conflict), or

Overseas Operations (Service Personnel and Veterans) BillPage 13

(ii) 8.2(e)(vi) (which relates to armed conflicts not of an
international character).

18 An ancillary offence under the law of England and Wales in relation to an
offence within paragraph 17.

19 5An offence under subsection (1) of section 52 of the International Criminal
Court Act 2001 (conduct ancillary to war crimes etc committed outside
jurisdiction) where the act referred to in that subsection would, if committed
in England and Wales, constitute—

(a) an offence within paragraph 17, or

(b) 10an offence within this paragraph.

Northern Ireland

20 An offence under section 58 of the International Criminal Court Act 2001
(genocide, crimes against humanity and war crimes) of committing—

(a) a crime against humanity within article 7.1(g), or

(b) 15a war crime within—

(i) article 8.2(b)(xxii) (which relates to international conflict), or

(ii) 8.2(e)(vi) (which relates to armed conflicts not of an
international character).

21 An ancillary offence under the law of Northern Ireland in relation to an
20offence within paragraph 20.

22 An offence under subsection (1) of section 59 of the International Criminal
Court Act 2001 (conduct ancillary to war crimes etc committed outside
jurisdiction) where the act referred to in that subsection would, if committed
in Northern Ireland, constitute—

(a) 25an offence within paragraph 20, or

(b) an offence within this paragraph.

Responsibility of commanders and other superiors

23 An offence under section 65(4) of the International Criminal Court Act 2001
(commanders etc regarded as aiding, abetting, counselling or procuring
30offence) committed in relation to—

(a) an offence within paragraph 17, 19, 20 or 22, or

(b) an offence ancillary to such an offence.

Interpretation

24 In this Part of this Schedule references to articles are to articles of the Statute
35of the International Criminal Court, done at Rome on 17 July 1998.

25 In this Part of this Schedule—

(a) references to an ancillary offence under the law of England and
Wales are to be interpreted in accordance with section 55 of the
International Criminal Court Act 2001;

(b) 40references to an ancillary offence under the law of Northern Ireland
are to be interpreted in accordance with section 62 of that Act.

Overseas Operations (Service Personnel and Veterans) BillPage 14

Part 3 International Criminal Court (Scotland) Act 2001

26 An offence within any of paragraphs 27 to 30 is an “excluded offence” in
Scotland.

27 5An offence under section 1(1) of the International Criminal Court (Scotland)
Act 2001 (asp 13)2001 (asp 13) (genocide, crimes against humanity and war crimes) of
committing—

(a) a crime against humanity within article 7.1(g), or

(b) a war crime within—

(i) 10article 8.2(b)(xxii) (which relates to international conflict), or

(ii) 8.2(e)(vi) (which relates to armed conflicts not of an
international character).

28 An offence under section 2(1) of that Act (conduct ancillary to war crimes
etc) of engaging in conduct ancillary to an act that constitutes—

(a) 15an offence within paragraph 27, or

(b) an offence within this paragraph or paragraph 29.

29 An offence under subsection (3) of section 2 of that Act of engaging in
conduct ancillary to an act committed (or intended to be committed) outside
Scotland, where—

(a) 20the offence mentioned in paragraph (a) of that subsection is an
offence within paragraph 27, or

(b) (as the case may be) the offence mentioned in paragraph (b) of that
subsection is an offence within paragraph 28.

30 An offence under section 5 of that Act (commanders etc regarded as aiding,
25abetting, counselling or procuring offence) committed in relation to—

(a) an offence within any of paragraphs 27 to 29, or

(b) an offence ancillary to such an offence.

Interpretation

31 In this Part of this Schedule—

(a) 30references to an ancillary offence are to be interpreted in accordance
with section 7 of the International Criminal Court (Scotland) Act
2001;

(b) references to articles are to articles of the Statute of the International
Criminal Court, done at Rome on 17 July 1998.

35Part 4 Provisions extending jurisdiction in respect of certain sexual offences

Section 72 of the Sexual Offences Act 2003

32 (1) Where by virtue of section 72 of the Sexual Offences Act 2003 (offences
outside the United Kingdom) an act done outside the United Kingdom
40constitutes an offence under the law of England and Wales or Northern
Ireland, that offence is an “excluded offence” in that part of the United
Kingdom.

Overseas Operations (Service Personnel and Veterans) BillPage 15

(2) Where by virtue of subsection (3) of that section proceedings for an offence
may be brought against a person in England and Wales or Northern Ireland
in respect of an act done outside the United Kingdom, that offence is an
“excluded offence” in that part of the United Kingdom.

5Article 76 of the Sexual Offences (Northern Ireland) Order 2008 (S.I. 2008/1769 (N.I. 2)S.I. 2008/1769 (N.I. 2))

33 (1) Where by virtue of Article 76 of the Sexual Offences (Northern Ireland)
Order 2008 (offences outside the United Kingdom) an act done outside the
United Kingdom constitutes an offence under the law of Northern Ireland,
that offence is an “excluded offence” in Northern Ireland.

(2) 10Where by virtue of paragraph (3) of that Article proceedings for an offence
may be brought against a person in Northern Ireland in respect of an act
done outside the United Kingdom, that offence is an “excluded offence” in
Northern Ireland.

Section 55 of the Sexual Offences (Scotland) Act 2009 (asp 9)2009 (asp 9)

34 (1) 15Where by virtue of section 55 of the Sexual Offences (Scotland) Act 2009
(offences committed outside the United Kingdom) an act done outside the
United Kingdom constitutes an offence under the law of Scotland, that
offence is an “excluded offence” in Scotland.

(2) Where by virtue of subsection (2A) of that section proceedings for an offence
20may be brought against a person in Scotland in respect of an act done outside
the United Kingdom, that offence is an “excluded offence” in relation to
Scotland.

Provisions superseded by provisions mentioned in paragraphs 32 to 34

35 Where by virtue of section 7 of the Sex Offenders Act 1997 (sexual offences
25committed outside the United Kingdom) an act done outside the United
Kingdom constitutes an offence under the law of England and Wales or
Northern Ireland, that offence is an “excluded offence” in that part of the
United Kingdom.

36 Where by virtue of section 16B of the Criminal Law (Consolidation)
30(Scotland) Act 1995 (commission of certain sexual acts outside the United
Kingdom) an act done outside the United Kingdom constitutes an offence
under the law of Scotland, that offence is an “excluded offence” in Scotland.

Section 8

SCHEDULE 2 Limitation periods: England and Wales

35Part 1 Court’s discretion to disapply time limits

1 (1) Section 33 of the Limitation Act 1980 (discretionary exclusion of time limit
for actions in respect of personal injuries or death) is amended as follows.

Overseas Operations (Service Personnel and Veterans) BillPage 16

(2) After subsection (1) insert—

(1ZA) The court shall not under this section disapply any provision of
section 11 in its application to an overseas armed forces action if the
action was brought after the expiration of the period of six years from
5the section 11 relevant date (see subsection (7)).

(1ZB) An “overseas armed forces action” means an action, or cause of
action, which—

(a) is against the Ministry of Defence, the Secretary of State for
Defence, or any member of Her Majesty’s forces,

(b) 10is brought in connection with overseas operations (see
subsection (7)), and

(c) relates to damage that occurred outside the British Islands.

(1ZC) In subsection (1ZB), “damage” means—

(a) in the case of an overseas armed forces action for which a
15period of limitation is prescribed by section 11, the personal
injuries to which the action relates;

(b) in the case of an overseas armed forces action for which a
period of limitation is prescribed by section 12(2), the death
to which the action relates (and where a person sustains
20personal injuries outside the British Islands which are a
substantial cause of their later death in any of the British
Islands, or vice versa, the death is for the purposes of
subsection (1ZB)(c) to be treated as occurring where the
injuries were sustained).”

(3) 25After subsection (2) insert—

(2A) But where the reason why the person injured could no longer
maintain an action was because of the time limit in section 11, the
court may disapply section 12(1) in its application to an overseas
armed forces action only if the person died within the period of six
30years beginning with the section 11 relevant date (ignoring, for this
purpose, the reference to section 11(5) in paragraph (a) of the
definition of that term).

(2B) The court shall not under this section disapply section 12(2) in its
application to an overseas armed forces action if the action was
35brought after the expiration of the period of six years from the
section 12 relevant date (see subsection (7)).”

(4) After subsection (5) insert—

(5A) In acting under this section in relation to an overseas armed forces
action—

(a) 40when considering the factor mentioned in subsection (3)(b),
the court must have particular regard to—

(i) the likely impact of the operational context on the
ability of members of Her Majesty’s forces to
remember relevant events or actions fully or
45accurately, and

(ii) the extent of dependence on the memories of
members of Her Majesty’s forces, taking into account
the effect of the operational context on their ability to

Overseas Operations (Service Personnel and Veterans) BillPage 17

record, or to retain records of, relevant events or
actions; and

(b) the court must also have particular regard to the likely impact
of the action on the mental health of any witness or potential
5witness who is a member of Her Majesty’s forces.

(5B) In subsection (5A) references to “the operational context” are to the
fact that the events to which the action relates took place in the
context of overseas operations, and include references to the
exceptional demands and stresses to which members of Her
10Majesty’s forces are subject.”

(5) After subsection (6) insert—

(6A) In the application of subsection (1ZA), (2A) or (2B) to an overseas
armed forces action in respect of which a limitation period has been
suspended in accordance with section 1(1) of the Limitation
15(Enemies and War Prisoners) Act 1945, any reference to the period of
six years is to be treated as a reference to the period of six years
plus—

(a) the period during which the limitation period was
suspended, and

(b) 20any extra period after the suspension ended during which the
action could have been brought only because of an extension
provided for by section 1(1) of that Act.”

(6) For subsection (7) substitute—

(7) In this section—

  • 25“the court” means the court in which the action has been
    brought;

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

  • “overseas operations” means any operations outside the British
    30Islands, including peacekeeping operations and operations
    for dealing with terrorism, civil unrest or serious public
    disorder, in the course of which members of Her Majesty’s
    forces come under attack or face the threat of attack or violent
    resistance;

  • 35“the section 11 relevant date” means the latest of the
    following—

    (a)

    the date from which the period of three years starts to
    run in accordance with section 11(4) or (5);

    (b)

    where section 28 applies, the date from which the
    40period of three years mentioned in subsection (1) of
    that section (as that subsection has effect with the
    modification made by subsection (6) of that section)
    starts to run;

    (c)

    where section 32(1)(a) or (b) applies, the date from
    45which the period of three years starts to run in
    accordance with subsection (1) of that section;

  • “the section 12 relevant date” means the latest of the
    following—

    (a)

    the date from which the period of three years starts to
    50run in accordance with section 12(2);

    Overseas Operations (Service Personnel and Veterans) BillPage 18

    (b)

    where section 28 applies, the date from which the
    period of three years mentioned in subsection (1) of
    that section (as that subsection has effect with the
    modification made by subsection (6) of that section)
    5starts to run.”

(7) In subsection (8), after “this section” in the first place it occurs, insert

(8)(a)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 (and the reference to any
10of the British Islands is to be read accordingly);

(b) to a member of Her Majesty’s forces, in relation to an
overseas armed forces action, include an individual who was
a member of Her Majesty’s forces at the time of the events to
which the action relates;

(c) 15”.

Part 2 Restriction of foreign limitation law

2 (1) The Foreign Limitation Periods Act 1984 is amended as follows.

(2) In section 1 (application of foreign limitation law), in subsection (1)(a), after
20“subject to” insert “section 1ZA and”.

(3) After section 1 insert—

1ZA Overseas armed forces actions: restriction of foreign limitation law

(1) Subsection (3) applies where—

(a) the law of another country relating to limitation applies by
25reason of section 1(1)(a) in respect of a matter for the
purposes of an overseas armed forces tort action, and

(b) the commencement condition applies in relation to that
action,

and in this section the law relating to limitation that applies for the
30purposes of that action is referred to as “the relevant foreign
limitation law”.

(2) The commencement condition applies in relation to an overseas
armed forces tort action if the action commenced on a date which is
after the end of the period of six years beginning with—

(a) 35the date on which any limitation period specified in the
relevant foreign limitation law began to run, or

(b) where the relevant foreign limitation law has the effect that
the action may be commenced within an indefinite period,
the first date on which the action could have been
40commenced.

(3) The relevant foreign limitation law is to be treated as providing the
defendant with a complete defence to the action so far as relating to
the matter (where that would not otherwise be the case).

(4) An “overseas armed forces tort action” means an action—

Overseas Operations (Service Personnel and Veterans) BillPage 19

(a) which is an overseas armed forces action as defined in section
33(1ZB) of the Limitation Act 1980, and

(b) which (under the law of the other country that falls to be
taken into account) corresponds to—

(i) 5an action to which section 11 of that Act applies
(personal injuries),

(ii) an action in respect of false imprisonment, or

(iii) an action under the Fatal Accidents Act 1976 (death).

(5) In the application of subsection (2) to an action in respect of which—

(a) 10in accordance with the relevant foreign limitation law, a
limitation period specified in that law has been suspended or
interrupted for a period by reason of a person’s lacking legal
capacity or being under a disability, or

(b) in accordance with the relevant foreign limitation law, a
15period during which a person lacks legal capacity or is under
a disability has been disregarded in computing a limitation
period specified in that law,

the reference to the period of six years is to be treated as a reference
to the period of six years plus the period of suspension or
20interruption or (as the case may be) the period that was so
disregarded.

(6) In the application of subsection (2) to an action in respect of which a
limitation period specified in the relevant foreign limitation law has
been suspended in accordance with section 1(1) of the Limitation
25(Enemies and War Prisoners) Act 1945, the reference to the period of
six years is to be treated as a reference to the period of six years
plus—

(a) the period during which the limitation period was
suspended, and

(b) 30any extra period after the suspension ended during which the
action could have been brought only because of an extension
provided for by section 1(1) of that Act.”

(4) In section 7 (short title etc), after subsection (3) insert—

(3A) Section 1ZA (overseas armed forces actions: restriction of foreign
35limitation law) applies to an action commenced in England and
Wales on or after the date on which that section comes into force,
whenever the events to which the action relates took place.”

(5) In section 8 (disapplication of provisions where the law applicable to
limitation is determined by other instruments), in the heading and in
40subsection (1), after “1,” insert “1ZA,”.