Overview of the Bill
1 The Overseas Operations (Service Personnel and Veterans) Bill includes the following provisions:
a. Criminal measures to raise the threshold for prosecution of current or former Service personnel. These measures create a statutory presumption against prosecution of current or former Service personnel for alleged offences committed on operations outside the British islands more than five years ago. These provisions will raise the threshold to be applied by prosecutors when considering whether a service person or veteran should be prosecuted in such cases, by stipulating that it is to be exceptional for a prosecutor to determine that a prosecution should be brought. In addition, the prosecutor must give particular weight to the adverse impact of the particular conditions the person was exposed to and the exceptional demands and stresses of overseas operations on a Service person (including on their ability to make sound judgments and on their mental health) and, in cases where there have been previous investigations and no compelling new evidence has emerged, the public interest in finality. The presumption applies to all offences save for the sexual offences listed in Schedule 1. If a prosecutor determines that, notwithstanding the presumption, it is appropriate for a prosecution to be brought, the consent of the Attorney General for England and Wales or the Advocate General for Northern Ireland will then be required for the prosecution to proceed. This measure may, over time, have an indirect impact on repeat criminal investigations, as police investigations may not be continued if, in consultation with prosecutors, it is assessed that cases will not meet the ‘exceptional’ threshold.
b. Restriction of judicial discretion to allow civil claims in respect of overseas operations. This will further restrict the court’s discretion to extend the normal time limit of three years for bringing civil claims for personal injury and/or death in relation to historical events outside the UK by requiring the court to take into account additional factors (in addition to those that already exist) when deciding whether to allow a claim outside the three-year limitation period. Those additional factors include, for example, particular regard to the likely impact of the operational context on the ability to remember events and the likely impact of any legal action on the mental health of any service personnel witness.
c. Restriction of judicial discretion to allow claims under the Human Rights Act 1998 (HRA) in respect of overseas operations. This will require the court to take into account various factors (as set out in the bullet point above for civil claims) when considering whether to extend the primary limitation period of one year.
d. Limitation longstop for civil claims in respect of operations overseas. There is also a new absolute limitation longstop of six years which will ensure claims are brought within six years of the date of incident, or within six years of the date of knowledge.
e. Changes to private international law rules for personal injury and death claims. The Bill amends existing legislation to provide that when the limitation periods of another country are applied to these claims, there will be an absolute limitation longstop of six years.
f. Limitation longstop for claims under the HRA in respect of overseas operations. This similarly imposes a new absolute limitation longstop of six years for bringing HRA claims in relation to overseas operations. There will be a consistent approach to limitation for both personal injury and death claims and for HRA claims. The time for the longstop on HRA claims will be calculated from the date of the incident occurring. If the date of knowledge is more than five years after the incident, however, claimants will have an additional one year to make a claim which may potentially take them beyond the six years longstop limit. This ensures victims are not disadvantaged.
g. Duty to consider derogating from certain rights in the European Convention on Human Rights (ECHR) in relation to significant overseas operations. This provision will introduce a requirement for the Secretary of State to consider whether it is appropriate to derogate in light of the situation at the time.