Overseas Operations (Service Personnel and Veterans) Bill

Written evidence submitted by Mr. John Cubbon (OOB03)

Author

John Cubbon works on criminal justice issues arising in fragile and conflict affected states. He held legal positions in the UN from 1995 to 2015. More recently he has undertaken assignments for the Stabilisation Unit and Timothy Shilston Associates. He is writing here in a personal capacity.

Executive Summary

The provisions on the presumption against prosecution would in effect give preferential treatment in prosecutorial decisions to UK service personnel with particular weight being given to unproven effects on their mental health of the conditions to which they have been exposed. The application of these provisions could lead to violations of the UK’s international treaty obligations and conceivably even to the indictment of UK service personnel by the Prosecutor of the International Criminal Court in The Hague. It is therefore recommended that the provisions concerned be deleted in their entirety. In the alternative, if the presumption is to be retained, it should apply neither to criminal offences within the jurisdiction of the International Criminal Court nor to criminal offences that might otherwise give rise to violations of international law.

Introduction

1. The Overseas Operations (Service Personnel and Veterans) Bill provides for a presumption against prosecution whereby it would be exceptional after the expiry of five years for a prosecutor to decide to bring or continue proceedings against a service person or veteran for particular categories of crimes allegedly committed in overseas operations. This Note will analyse the nature and implications of these provisions and their compatibility with international law as the basis for recommendations for revisions. [1]

How to apply the presumption against prosecution

2. The Bill provides no criteria for when exceptionally a prosecutor should decide to bring or continue proceedings after the expiry of the five year term. This results in a loss of legal certainty.  

3. There are, however, "[m]atters to be given particular weight". Clause 3 in conjunction with clause 1 provides that in making a decision to which the presumption applies a prosecutor must give particular weight to the adverse effect (or likely adverse effect) of the conditions during deployment on an overseas mission (clause 3(2)(a)) and, where there has been a relevant previous investigation and no new evidence has become available, the public interest in finality being achieved without undue delay (clause 3(2)(b)).

4. The adverse effect in clause 3(2)(a) of deployment on overseas operations concerns exclusively mental health. [2] It has been recognised as a ground for mitigation of sentence in English law. [3] Mitigating factors parallel considerations relevant to decisions on whether to bring or continue proceedings but they plainly serve different purposes.

5. The language in clause 3(2)(a) is tentative and awkward. The phrase "the adverse effect (or likely adverse effect)" is odd. If the likely adverse effect is sufficient, why mention the unqualified "adverse effect"? The concept of an adverse effect on mental health is imprecise. The description of the conditions which are the cause of "the adverse effect (or likely adverse effect)" are only loosely delineated: they are described as including the "experiences and the responsibilities" of the person concerned and three examples are then given ("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").

6. The word "likely" in clause 3(2)(a) suggests that it is not necessary to have any evidence that the conditions to which the particular service person or veteran was exposed actually had an adverse effect on his or her mental health. This is reinforced by clause 3(3) which implies that the prosecutor must have regard to the exceptional demands and stresses to which a broad group of people, namely members of Her Majesty’s forces while deployed on overseas missions, are likely to be subject.

7. If a person has been exposed to experiences or responsibilities falling under the examples given in clause 3(2)(a), the prosecutor may infer that they have had an "adverse effect (or likely adverse effect)". Pursuant to clauses 1(1) and 3(1), the Prosecutor "must give particular weight" to this as well as applying the presumption against prosecution in deciding whether to bring or continue proceedings. This suggests that exposure to experiences or responsibilities covered by one or more of the examples given in clause 3(2)(a) will point strongly to a decision not to bring or continue proceedings.

8. Paragraph 4.14(b) of the Code for Crown Prosecutors requires that consideration be given in the public interest stage to "significant mental… ill health or disability" in the context of deciding on the level of culpability of the suspect. Clause 3 of the Bill is plainly intended to introduce a different consideration. "Significant mental… ill health or disability" is a much higher threshold than "the adverse effect (or likely adverse effect)" on mental health of the conditions set out in clause 3(2)(a). Determining the effect of mental illness on criminal responsibility and as mitigation of sentence is immensely difficult. It frequently requires expert evidence and normally it is best addressed at the end of the judicial process. When a prosecutor decides whether to bring or continue proceedings, he or she is likely only to have limited information on the mental condition of the suspect. A cautious well-grounded approach is needed. However, clause 3 would appear to allow a decision not to prosecute to be taken as a result of an inference about mental health derived from the conditions a person was exposed to and "the exceptional demands and stresses to which Her Majesty’s forces are likely to be subject", in other words without a specific diagnosis of the mental condition of the person concerned.

9. Pursuant to clause 3(2)(b), in a case in which there has been a relevant previous investigation and no compelling new evidence has become available, the prosecutor must give particular weight to the public interest in finality (as regards how the person is to be dealt with) being achieved without undue delay. The Explanatory Notes state that this is aimed at addressing concerns over the impact on personnel of repeat investigations and the threat of prosecution long after the events in question, in particular where there is no compelling new evidence to be considered and that it highlights the public interest in these cases coming to a timely and final resolution. However, clause 3(2)(b) has no immediate effect on a decision to carry out an investigation as opposed to a prosecution. [4] In response to a similar point, the Secretary of State for Defence, Ben Wallace MP, said that if investigators thought that a prosecution would be unlikely they would not pursue the investigation, thereby reducing the number of investigations, [5] but this is only an indirect effect. It has frequently been pointed out that unsatisfactory investigations are the reason why they are repeated [6] and this the Bill does not address. In fact, if there has been a relevant previous investigation but no compelling new evidence, it may nevertheless be worth conducting a further investigation, where the previous investigation has been poor.

10. A prosecutor must give particular weight to the matters set out in clause 3(2) as well as complying with the presumption against prosecution, but the Bill does not provide expressly how the two relate to one another or to other factors such as the gravity of the alleged offence. The position of the Ministry of Defence is that the presumption against prosecution and the matters to be given particular weight in clause 3(2) only take effect after the prosecutor has determined that there is sufficient evidence for prosecution. [7] A prosecutor might then be expected to apply the presumption against prosecution in at least some cases in which there would be sufficient evidence of, say, torture or murder. If, on the other hand, the intention is that serious crimes should be the exceptions to the presumption, this should be provided for in the Bill.

11. The Bill creates a presumption against prosecution for a class of defendants which is unprecedented in domestic law. [8] It marks a retreat from the principle that the decision whether to prosecute rests on the circumstances of the individual in question and not a group to which he or she belongs. Further moves of this nature could be very detrimental.

12. The presumption applies only to UK service personnel and veterans, who are mostly UK nationals, and does not extend to service personnel of other states who are mostly not. [9] It is not only UK service personnel who have been exposed to the conditions referred to in clause 3(2)(a). It has to be said that prosecutions in the UK of the service personnel of other States for crimes committed in overseas operations as defined in clause 1(6) are very unlikely, [10] but the point of principle is relevant in the preparation of legislation.

13. It emerged at the meeting of the Joint Human Rights Committee on 5 October 2020 that since 2000 there had been only 27 prosecutions of UK service personnel in Iraq and Afghanistan for offences committed against local nationals and these had led to eight convictions. What was especially striking was that there was no evidence that any of the 27 prosecutions had been vexatious or wrongful. [11] Yet the Bill is directed at precisely prosecutions of this nature. Powerful justification would therefore be required for the restrictions and procedures that it would impose, but it has not been provided.

Violations of international law

14. The wording of the UK’s treaty oblig ations regarding grave breaches of the 1949 Geneva Conventions, torture and genocide do not leave scope for the exercise of the presumption against prosecution. The Geneva Conventions oblige High Contracting Parties to search for persons alleged to have committed, or to have ordered to have committed, grave breaches of the Conventions and to "bring such persons, regardless of their nationality, before [their] own courts….. [or] hand such persons over for trial to another High Contracting Party". [12] Similarly the formulation of Article 7 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and Article IV of the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) do not leave room for the presumption against prosecution to operate in regard to torture and genocide respectively.

15. The presumption could also expose UK service personnel and veterans to prosecution before the International Criminal Court (ICC). A case is inadmissible before the ICC if, inter alia, it is being prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the prosecution [13] or if it has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness of the State genuinely to prosecute. [14] The enactment of the presumption against prosecution and its subsequent application might be the basis for a finding by the ICC that the UK is unwilling genuinely to prosecute. This could lead to the indictment of UK service personnel and even for the UK being obliged to take steps to arrest and surrender the personnel in question.

16. In order to prevent possible violations of the 1949 Geneva Conventions, CAT and the Genocide Convention as well as the prosecution of UK service personnel at the ICC, the crimes set forth in Articles 6, 7 and 8 of the Rome Statute [15] and in Article 4 of CAT could be excluded from the definition of "relevant offence" in clause 6 of the Bill, but this will not preclude altogether violations of international law by the application of the presumption against prosecution.

17. The definition of "overseas operations" in clause 1(6) is not the same as that of an armed conflict in international law. It is therefore possible that the presumption would be applied to acts of murder or maltreatment that service personnel had committed outside an armed conflict. Their actions might not be covered by Articles 6, 7 and 8 of the Rome Statute or Article 4 of CAT and consequently the presumption against prosecution might be applied. However, a failure to prosecute might lead to a violation of Article 2 or 3 of the European Convention on Human Rights (ECHR).

18. It is a long-established principle of the jurisprudence of the European Court of Human Rights (ECtHR) that Articles 2 and 3 of the ECHR combined with Article 1 create a procedural obligation whereby in the case of use of lethal force by State authorities or an arguable claim of unlawful serious ill-treatment by the police or other State agencies there must be an effective official investigation that is capable of leading to the identification and punishment of those responsible. [16] The proposed presumption could in some instances preclude the identification and punishment of those responsible because it would terminate the process as a result of the expiry of the five year term. The ECtHR has found that the expiry of a fixed period of time is an insufficient reason for terminating investigations of alleged violations of Articles 2 [17] and 3. [18] The proposed presumption can therefore be expected to give rise to breaches of the ECHR.

19. Innumerable commentators have pointed out that the adoption of the relevant provisions of the Bill would damage the reputation and authority of the UK. [19] It would encourage other States also to adopt laws that would restrict the prosecution of their past and present service personnel in violation of international law. [20] The notions of prosecution being exceptional and likely adverse effect on mental health may be templates that other states would follow in their legislation leading to an increase in impunity.

Recommendations

20. The provisions on the presumption against prosecution including the matters to be given particular weight should be removed from the Bill in their entirety.

21. In the alternative, if this is not feasible, it is recommended that in order to minimise violations of international law and the possibility of UK service personnel and veterans being indicted before the ICC, the following offences should be excluded from the definition of "relevant offence" in clause 6: the offences in Articles 6, 7 and 8 of the Rome Statute; the offences in Article 4 of CAT; and all offences that fall under the prohibitions in Articles 2 and 3 of the ECHR.

6 October 2020


[1] On 8 August 2020 the author made a written submission to the Joint Human Rights Committee (JHRC) on the presumption against prosecution (https://committees.parliament.uk/writtenevidence/9737/pdf/) which addressed its implications for the UK’s obligations under international law. What follows is an argument for the amendment of the Bill and by no means only on the basis of international law. It takes account of other comments made after the written submission to the JHRC.

[2] This follows from the use of the word "other" in clause 3(4)(b) which implies that the "adverse effect on the capacity to make sound judgements or exercise self control" in clause 3(4)(a) is also to be regarded as an adverse effect on mental health.

[3] R v Ashley Byrnes [2016] EWCA Crim 1442, 2016 WL 05864956; R v Blackman [2014] 2 Cr. App. R. 18. See also R v Blackman [2017] EWCA Crim 190.

[4] HC Deb 23 September 2020, vol 680, cols 987-988, 1010 (Dr. Julian Lewis MP).

[5] ibid col 988.

[6] Eg Martyn Day at the Joint Human Rights Committee, Oral Evidence: the Overseas Operations (Service Personnel and Veterans) Bill, HC 665, 28 September 2020, accessible at https://committees.parliament.uk/oralevidence/949/pdf/.

[7] Meeting of the Joint Human Rights Committee on 5 October 2020, 15:12:47-15:13:17, accessible at https://www.parliamentlive.tv/Event/Index/62bdb022-87a4-46d1-9e09-3d6e7c963bb7.

[8] HC Deb 23 September 2020, vol 680, col 1005 (Joanna Cherry QC MP); Meeting of the Joint Human Rights Committee on 5 October 2020, 15:07:14-15:10:11, accessible at https://www.parliamentlive.tv/Event/Index/62bdb022-87a4-46d1-9e09-3d6e7c963bb7.

[9] Cf Crown Prosecution Service, OOB0032 – Legislative Scrutiny: The Overseas Operations (Service Personnel and Veterans) Bill, 11 September 2020, Joint Human Rights Committee, para 18, accessible at https://committees.parliament.uk/writtenevidence/12288/pdf/.

[10] Emily Elliott, Universal jurisdiction – Cases in the UK – Lexology, 28 January 2016, accessible at https://www.kingsleynapley.co.uk/insights/blogs/criminal-law-blog/universal-jurisdiction-cases-in-the-uk (Geneva Conventions Act 1957); Jonathan Grimes, Torture charges dismissed against Agnes Reeves Taylor, 10 December 2019, accessible at https://www.kingsleynapley.co.uk/insights/blogs/criminal-law-blog/torture-charges-dismissed-against-agnes-reeves-taylor; Crimes against Humanity: Prosecution: Written question – HL 6854 – UK Parliament, accessible at https://www.parliament.uk/business/publications/written-questions-answers-statements/written-question/Lords/2018-04-16/HL6854. The likelihood of anyone now being prosecuted under the War Crimes Act 1991 is extremely remote because it only provides for jurisdiction for offences committed between 1 September 1939 and 5 June 1945.

[11] Meeting of the Joint Human Rights Committee on 5 October 2020, 14:51:34-15:04:11, accessible at https://www.parliamentlive.tv/Event/Index/62bdb022-87a4-46d1-9e09-3d6e7c963bb7.

[12] Geneva Convention I Articles 2, 49-50; Geneva Convention II Articles 2, 50-51; Geneva Convention III Articles 2, 129-130; Geneva Convention IV Articles 2, 146-147.

[13] Rome Statute art 17(1)(a).

[14] ibid art 17(1)(b).

[15] Article 6 of the Rome Statute defines genocide and Article 8(2)(a) grave breaches of the Geneva Conventions.

[16] McCann and Others v UK (1996) 21 EHRR 97, para 161; Al Skeini v UK (2011) 53 EHRR 18, paras 163-166; Assenov and others v Bulgaria (1999) 28 EHRR 652, para 102.

[17] Association "21 December 1989" and Others v Romania App no 33810/07 (ECtHR, 24 May 2011), para 144. cf Šilih v. Slovenia (2009) 49 EHRR 996, para 157.

[18] Mocanu and Others v Romania (2015) 60 EHRR 19, para 346; Kosteckas v Lithuania App no 960/13 (ECtHR, 13 September 2017), para 44.

[19] eg. Elizabeth Wilmshurst at the Joint Human Rights Committee, Oral Evidence: The Overseas Operations (Service Personnel and Veterans) Bill, HC 665, 28 September 2020, accessible at https://committees.parliament.uk/oralevidence/949/pdf/.

[20] Alexandra Fowler, OOB0028 – Legislative Scrutiny: The Overseas Operations (Service Personnel and Veterans) Bill, Joint Human Rights Committee, 11 September 2020, accessible at https://committees.parliament.uk/writtenevidence/11635/pdf/.

 

Prepared 7th October 2020