Exposing Walter Mitty: The Awards for Valour (Protection) Bill Contents

2Protecting military honours

Introduction

4.Wherever organised armed forces have existed, systems of military honours have usually arisen alongside them to recognise acts of gallantry and distinguished service. The legions of the Roman Republic had by the 1st century BC developed a sophisticated system of honours and awards.2 In the United Kingdom, early examples of what we would now call campaign or operational medals were struck on the orders of Elizabeth I to reward the naval commanders who defeated the Spanish Armada, and the first gallantry and distinguished conduct medals were issued by Charles I during the English Civil War.3

5.It was only with the inauguration of the Victoria Cross by Royal Warrant of 29 January 1856 that an award available to all ranks “who have served [the Queen] in the presence of the enemy, and shall have performed some signal act of valour, or devotion to their country” was permanently instituted.4 Since then, a number of additional awards for valour and distinguished conduct have been instituted. Not all awards (including the Victoria Cross) are specifically restricted to serving members of the Armed Forces, but even where they are not, the incidence of awards to serving personnel is generally very high.5

Protection of decorations and medals prior to the Armed Forces Act 2006

6.Legal protections relating to military dress also have their origin in the 19th century. The Uniforms Act 1894, originally introduced as a Private Members Bill, states that:

It shall not be lawful for any person not serving in Her Majesty’s Military Forces to wear without Her Majesty’s permission the uniform of any of those forces, or any dress having the appearance or bearing any of the regimental or other distinctive marks of any such uniform.6

The 1894 Act, which remains in force, is quite narrow in scope and was intended to deal only with the unauthorised wearing of uniforms. It does not mention decorations, or medals. Nor does it cover any matters relating to false representation of entitlement to awards.

7.Specific prohibitions on the unauthorised use of medals appeared during the First World War through regulations issued by the Government under powers contained in the Defence of the Realm Acts. Defence of the Realm Regulation 41 made it an offence for a person to use or wear a decoration or medal without authority (or wear a replica which closely resembles such a decoration or medal). It also became an offence falsely to represent oneself as a person entitled to wear such a decoration or medal, or to supply decorations or medals to unauthorised persons without lawful authority or excuse.7

8.Following the end of the war, the Government put a number of provisions, including Regulation 41, on a permanent statutory footing. In 1919, the then Secretary of War (Rt Hon Winston Churchill MP) set out the argument for this approach:

We know how much all these emblems of gallantry are prized by the country, and it is necessary that they should be protected against fraudulent and spurious use by quite severe penalties, so that the men will be all the more proud of the right to wear them, and will not be misled by others who profit by use of these decorations. We have included all symbols of military prowess, including wound stripes and all decorations, emblems, and medals. We want to make certain that when we see a man wearing two or three wound stripes and a medal, that we see a man whom everybody in the country is proud of.8

An offence of similar scope to Regulation 41 was accordingly inserted into the Army Act 18819 as section 156A. The 1881 Act was subsequently replaced by the Army Act 1955 (‘the 1955 Act’), and the offences relating to decorations and medals were carried over and enacted as section 197 of that Act.10

9.The Armed Forces Act 2006 (‘the 2006 Act’)11 replaced the three separate Service Discipline Acts with a single statute to regulate Service law. However, section 197 of the 1955 Act was not reproduced in the 2006 Act and its provisions were repealed in 2009 when the relevant parts of the 2006 Act were brought into force.12 As a result, no specific offences now exist relating to the unauthorised wearing, or false representation of entitlement to wear military decorations or medals.

10.The Ministry of Defence (MoD) explained that the reason the offences were not carried over into the 2006 Act was based on a number of problems and uncertainties arising from the way in which section 197 of the 1955 Act had been drafted. Problems included:

the offences being dependent on decorations being worn or used ‘without authority’ and uncertainty about the proper source of such authority;
the absence of specific exceptions for theatrical portrayals or fancy dress; and,
a lack of clarity over whether the offences applied both to current and to historic decorations, and a view that the need for specific authority was excessive.

11.Additionally, the MoD argued that “the important element of the offences was to prevent people from making financial or other gain dishonestly by wearing uniform” and that the general offences under the Fraud Act 2006, which potentially attract much more serious penalties, would cover those eventualities. There was also a concern that “an offence based on an intent to deceive which did not involve fraud (for example, where there was no attempt to make a financial or property gain, or cause someone loss) was likely in practice to cause difficult questions of proof”.13

12.We do not agree with the justifications provided by the Ministry of Defence for repealing offences relating to the protection of decorations without replacing them. If the offences in the Army Act 1955 were unsuitable to be directly transposed, the Armed Forces 2006 Act should have included new, more workable offences which were well scoped and which incorporated appropriate exceptions.

13.We question the contention that the prevention of a financial or other tangible gain was the most important element of these offences at the time they were drafted. It may have been an important consideration in the 1955 Act, but if the prohibition was intended to be confined to financial or other tangible gains, then it must be questioned why such matters were not specified in the offences. Incidents involving military imposters may arise which do not fall within the ambit of the Fraud Act, and these would go unpunished. As we set out later in our Report, military imposters perpetrate a specific harm that mandates a specific prohibition, rather than relying on offences of more general application.

14.We also disagree that offences involving an intention to deceive which are not related to fraud may raise practical difficulties on questions of proof. Such offences do exist: for example, the offence of police impersonation under section 90 of the Police Act 1996. Therefore, we conclude that the legal concept of deception is sufficiently well established for this not to cause major difficulties.

The position in Service law

15.No offences currently exist in relation to the deceitful or unauthorised use of military decorations and medals by civilians. However, the unauthorised use of uniform, insignia or medals by those subject to Service law can be prosecuted under the offence in section 19 of the Armed Forces Act 2006,14 relating to acts prejudicial to good order and discipline.

16.Section 19 is a ‘catch all’ disciplinary offence designed to prohibit conduct that does not fall under one of the other more specific disciplinary offences. It can cover a wide range of acts or omissions committed by Service personnel. This has made it difficult to establish how often section 19 has been used to punish acts specifically relating to decorations and medals. The offence is often tried summarily and prosecution statistics are not kept in a way enabling easy identification of charges relating to unauthorised wearing of decorations or medals.

Incidence of unauthorised and deceitful use of decorations and medals

17.A lack of statistical data also creates difficulty in determining the incidence of the behaviour that the Bill would seek to prevent. Prior to its repeal in 2009, prosecutions under section 197 of the 1955 Act were recorded under categories that grouped data from a number of separate offences.15 It is therefore not possible to determine the incidence of prosecutions under that section from criminal justice statistics. The Royal British Legion, in written evidence, stated that “in the Legion’s own experience, instances of so-called ‘Walter Mittys’ appear to be rare”.16 The Royal Air Force Families Federation told us that in its assessment “such instances are quite rare in relation to the number of personnel who have received awards and are entitled to wear medals” and that the problem was “not widespread”.17

18.Evidence from the Naval Families Federation suggested a different experience. The NFF conducted a brief survey amongst its members, receiving 1,111 responses over four days. 64% of respondents said that they had personally encountered individuals who were wearing medals or insignia that were awarded to someone else, with 16% saying they were not sure. When asked to detail the specific circumstances, 29% of the respondents said that the individual concerned was impersonating a UK Armed Forces veteran, and another 11% identified the individual as impersonating a serving member of the Armed Forces.18 A further 28% of respondents said that the individual concerned was wearing a deceased relative’s medals—an issue which we consider later in our Report.

19.In oral evidence, the Bill’s sponsor, Gareth Johnson MP, acknowledged that a lack of clear data caused difficulty in determining the scale of the problem. Nonetheless, other sources of information point to a continuing incidence. A combination of reports in the national press, the well-publicised activities of groups dedicated to exposing military imposters, and the anecdotal experience of the Bill’s sponsor points to this conclusion.19

20.This was also the view of other witnesses with direct experience of the problem. Dr Hugh Milroy, Chief Executive of Veterans Aid, suggested that the practice of unauthorised or deceitful wearing of medals was linked with wider issues surrounding the invention or exaggeration of military service. He suggested that such incidents were “a daily occurrence” and that “we have had no sense of the enormity of it”.20 Edgar Jones, Professor of the History of Medicine and Psychiatry, King’s College London, said that although he sensed that the level of prosecutions under the 1955 Act had been quite low, that may have resulted from the deterrent effect of the offence:

Once it is known that you could be prosecuted, people would think twice about buying medals and wearing them.21

21.The precise level of incidence of the behaviour the Bill aims to prevent is difficult to determine because statistics on previous infringements have not been recorded in a form allowing accurate identification of the relevant offences. The assessment of Service charities in encountering military imposters also seems to vary. There remains however, a body of strong anecdotal evidence that points to military imposters being a continuing problem.

The harm caused by military imposters

22.When legislating in this area it is important to identify the harm that new offences are intended to prevent. We asked our witnesses to identify the harm caused by unauthorised or deceitful use of medals. Gareth Johnson MP stated:

What this [Bill] endeavours to do is to prevent people, as we have seen before, joining in Remembrance parades, wearing medals, pretending they are courageous when they are not—pretending they are better people than they actually are and seeking to actually get some kind of reward or favour or enhancement in their character as a result […] I can see how [military imposters] could cause the greatest amount of offence to those people who have maybe lost loved ones in conflict or who have actually received those awards themselves after they have put their lives on the line and some impostor comes in and pretends they are the same as them.22

In oral evidence, Mr Johnson was challenged on the difference between wearing a set of military medals without entitlement, and wearing an Etonian tie having never gone to Eton. He replied:

I think there is a world of difference between wearing an Old Etonian tie in order to curry favour or for people to see you as better and someone who is trying to claim they have served Queen and country, been courageous, been awarded a medal […] When [military imposters] carry out behaviour like this, it undermines those people who have actually served Queen and country and have sacrificed and have put their neck on the line for us, and we owe them some protection that they do not currently have.23

23.When similarly challenged, our other witnesses provided strong arguments in favour of specific protections for military awards. Professor Ian Palmer considered that “anything that smacks of fraud […] impugns the integrity of the medal, impugns the integrity of the uniform”.24 Dr Milroy commented that “Trust is the key element here […] I want us to have a bond between the public and the military. If we lose that by our inability to address who veterans are in the 21st century, we have missed a trick”.25 Professor Jones said:

There is harm to the reputation of veterans, because these stories get into the press and they are repeated and coming through on a regular basis. After a while it has an insidious effect on the way the general population views the veteran population.26

24.Both the sponsor of the Bill and the other witnesses took the view that the unauthorised and deceitful use of military decorations and medals is a harm that is worthy of specific criminal prohibition. We support their arguments that such behaviour is not only insulting to the rightful recipients of these awards, but also damages the integrity of the military honours system and the bond of trust and respect between the public and the Armed Forces.

25.The enactment of criminal prohibitions should always merit the most serious consideration. We conclude that there is a tangible and identifiable harm created by military imposters against members of society who should rightly be held in its highest esteem. Therefore, we believe that specific prohibitions to mitigate this harm are justified.

International comparisons

26.The legal codes of a significant number of other countries contain provisions which protect decorations and medals. A table summarising relevant provisions in overseas jurisdictions is included as an Appendix to this Report. Many of these provisions have similar origins to the offences which previously existed in this country in the Army Acts. The equivalent provisions in Australia, Canada and New Zealand, all of which are still in force, were originally enacted during or immediately following the First World War.

27.The recent experience in the United States is instructive in highlighting considerations which ought to be borne in mind when legislating in this area. In 2005 the US Congress passed a Stolen Valor Act27 which considerably expanded the ambit of existing federal offences relating to the unauthorised wearing of, and dealing in, military decorations and medals. A specific offence was created which made it illegal falsely to represent oneself to be entitled to a military decoration or medal, irrespective of whether or not such medals were actually worn. The Act also laid down enhanced penalties for false claims regarding certain higher awards for valour, such as the Congressional Medal of Honor. However, the provisions of the Act were successfully challenged and struck down by the US Supreme Court in United States v. Alvarez.28 It was held that the offences prohibiting false representation amounted to an unconstitutional abrogation of the right to freedom of speech and expression under the First Amendment of the United States Constitution.

28.In swift reaction to this case, a new Act was passed by Congress, the Stolen Valor Act of 2013 (‘the 2013 Act’),29 which made further amendments to the federal offences to take account of the Supreme Court’s ruling and to remove the elements of the offence which were held to be in violation of the First Amendment. False representation with regard to military decorations now comes within the ambit of the offence only if it is done with intent to ‘obtain money, property or other tangible benefit’, and only where it concerns one of the higher valour awards to which the enhanced penalties apply, rather than any military medal. Alongside the 2013 Act, the US Department of Defense also created an online, publicly searchable database that lists the recipients of higher valour awards, enabling claims by individuals to be instantly and authoritatively verified by members of the public.30 This follows from a suggestion by the Court in Alvarez that such a tool would make fraudulent representation sufficiently easily discoverable that it would act as a deterrent.

29.Whereas Alvarez was specifically concerned with the offences relating to false representation, the position in the United States concerning the physical wearing of medals remains uncertain. As well as amending the scope of the offences relating to fraudulent representation, the 2013 Act also removed the word ‘wears’ from the Federal Code. Litigation is currently ongoing to determine whether placing restrictions on wearing medals to which one is not entitled also violates the First Amendment in the same way as the offences of fraudulent representation which were struck down.31 This uncertainty about the constitutionality of ‘stolen valor’ statutes has not prevented several state legislatures from placing similar offences into law.

30.Criminalisation of the unauthorised and deceitful wearing of decorations and medals is commonplace in many other jurisdictions, to such an extent that a lack of similar protection in the United Kingdom can be viewed as exceptional. Other countries have not sought to repeal these longstanding protections and we believe that the anomalous position of the United Kingdom should now be corrected.

31.We recommend that the Ministry of Defence should set out the practicalities of creating an online, publicly-searchable database to record those who are rightful recipients of gallantry and distinguished conduct awards, along similar lines to the database instituted by the US Department of Defense. This would allow authoritative verification of claims to entitlement and act as a deterrent to military imposters, whose deceptions would be liable to swift and accurate exposure.

2 Valerie A Maxfield, The Military Decorations of the Roman Army, B.T. Batsford Ltd, London 1981

3 W Augustus Steward, War Medals and their History, Stanley Paul and Co., London 1915. Examples of these Elizabethan and Carolean medals are in the collections of the British Museum.

4 The London Gazette, 5 February 1856, No. 21846, p 410. See Christopher J Wright OBE and Glenda M Anderson (eds.) The Victoria Cross and the George Cross: The Complete History - Volume I 1854-1914, Methuen, London 2013

5 Official guidance on military honours is found in Ministry of Defence Joint Service Publication 761, Honours and Awards in the Armed Forces, October 2016

6 57 & 58 Vict. c. 45, section 2(1)

7 Defence of the Realm Regulations, Regulation 41, Manual of Emergency Legislation, 2nd Edition revised to November 30 1916, HMSO, London 1916

8 HC Deb, 2 April 1919, col. 1277

9 44 & 45 Vict. c. 58

10 3 & 4 Eliz. 2 c. 18, section 197. An offence with near identical wording appears in the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19, section 197). The Naval Discipline Act 1957 (5 & 6 Eliz. 2 c. 53) contained an offence relating to the misuse of decorations in section 31, but applied only to those subject to naval discipline.

11 c. 52 (2006)

12 Armed Forces Act 2006 (Commencement No. 5) Order 2009 (SI 2009/1167)

13 Ministry of Defence (AVP0003)

14 c. 52 (2006), section 19

15 Ministry of Justice (AVP0002)

16 Royal British Legion (AVP0001)

17 Royal Air Force Families Federation (AVP0004)

18 Naval Families Federation (AVP0005)

19 Q7

20 Q41

21 Q56 [Professor Jones]

22 Q30