Amendment 18

Overseas Operations (Service Personnel and Veterans) Bill - Committee (1st Day) – in the House of Lords at 9:00 pm on 9 March 2021.

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Lord Falconer of Thoroton:

Moved by Lord Falconer of Thoroton

18: After Clause 7, insert the following new Clause—“Time limit for commencing proceedings for minor offencesAfter section 60 of the Armed Forces Act 2006 insert—“60A Time limit for minor offences(1) A person may not be charged in respect of a minor offence carried out in the course of overseas operations after the end of six months beginning with the day on which the offence is alleged to have been committed. (2) In this section—“minor offence” means—(a) any offence committed by a member of a regular or reserve force which would be in the jurisdiction of the Service Civilian Court if committed by a civilian; (b) any offence capable of being dealt with at a summary hearing under section 53 or 54;“overseas operations” has the meaning given in section 1(6) of the Overseas Operations (Service Personnel and Veterans) Act 2021.””

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice), Shadow Attorney General

My Lords, this is a self-contained point rather outside the mainstream of the other issues that we have been dealing with, but an important amendment trying to provide a degree of certainty to military personnel engaged in overseas operations. The amendment seeks to provide that, where a minor offence is committed that would be triable within the Armed Forces criminal justice system, there should be a six-month time limit from the date the offence is committed for bringing proceedings. So, after six months have elapsed from the date of the offence, if no proceedings have been brought it cannot be prosecuted. This provision mirrors Section 127 of the Magistrates’ Courts Act 1980 and reflects the sensible proposition that, in relation to minor offences, you should know where you stand.

I am not sure whether the drafting has precisely achieved this; I would be interested in the Minister’s views on whether we need to make any changes. However, I am absolutely sure that the principle is sound: in relation to minor offences, there should be a shortish time limit of six months, so that the system is not cluttered up with old offences of a certain lack of severity. I beg to move.

Photo of Lord Lexden Lord Lexden Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, the noble Baroness, Lady Chakrabarti, whose name is next on the list, has withdrawn so I call the next speaker, the noble Lord, Lord Thomas of Gresford.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat Shadow Attorney General

My Lords, I have little to say in respect of this amendment. I believe that summary offences should be dealt with summarily, and that is what this amendment seeks to achieve.

Photo of Baroness Goldie Baroness Goldie Lord in Waiting (HM Household) (Whip), The Minister of State, Ministry of Defence

My Lords, it is interesting that we conclude our consideration of Part 1 of the Bill with a genuinely interesting proposition from the noble and learned Lord, Lord Falconer of Thoroton, so neatly encapsulated by the noble Lord, Lord Thomas of Gresford.

The amendment seeks to introduce, via a new section to be inserted in the Armed Forces Act 2006, a six-month limitation period between an offence being committed or discovered and any proceedings being brought, where certain conditions are satisfied. As I understand the proposal, the amendment would create a six-month limitation period for all offences capable of being dealt with at a summary hearing under Section 53 of the Armed Forces Act 2006. It is worth observing that this category of offence includes a large number of matters that are specific to a military context.

Section 53 covers, for example, the offence of being absent without leave, under Section 9 of the Armed Forces Act 2006; the offence of disobedience to lawful commands, under Section 12; the offence of contravention of standing orders, under Section 13; and the offence of disclosure of information useful to an enemy, under Section 17. These, and many more offences like them, are vital to maintaining discipline and operational effectiveness in the Armed Forces. The amendment proposes that none of these should be capable of leading to punishment after six months. With the greatest respect to the noble and learned Lord, I think that that is unwise.

During any investigation, it is not always clear at the outset what the charge will be, but this is made harder for investigations on overseas operations, particularly where the injured person or witness is a local national. As I have already set out in response to other investigation-related amendments, investigations on overseas operations are subject to greater complexity than those conducted back in the UK, and delays can occur. However, placing what is actually quite a short time limit on investigations is unhelpful. In my view, we should not be seeking to do anything that would fetter the investigative decision-making of the service police. A time limit in these circumstances would do just that.

Even the most minor offences take on a greater significance in an operational environment and, if we reflect on some of the offences to which I have just referred, I think your Lordships would understand the import of that. A minor offence is not necessarily a simple matter that can be dealt with quickly by a commanding officer, and minor offences committed against local nationals can have a disproportionate effect in an operational setting.

I think that this amendment is modelled upon the provisions that exist in relation to summary-only matters in the Magistrates’ Courts Act 1980, which is why I find it problematic. The Magistrates’ Courts Act codifies the procedures applicable in the magistrates’ courts of England and Wales. This legislation is not written to accommodate the extraordinary demands made of a system operating in an operational context where, as I have already said, delays can sometimes occur as a result. Applying civilian timescales to an operational context is therefore not appropriate.

I appreciate that the amendment has been offered in good spirit by the noble and learned Lord. I thank him for the breadth of thought in investigating that aspect, but I urge him to withdraw the amendment.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice), Shadow Attorney General

I am grateful to the Minister for her very careful reply. I understood her to make two particular points: first, that six months may be too short, particularly in an overseas operational environment and, secondly, that it may not be appropriate in dealing with certain sorts of military offences, for example, disobedience to orders, particularly in an overseas context.

I hear what the noble Baroness has said and I will think very carefully about two things. First, does one need a longer period and, secondly, should one exclude certain specifically military offences? However, if it were possible, I would be keen to find a way forward on this because although the points she makes have some degree of validity, I also think that for comparatively minor offences it is disproportionate for military personnel still to be investigated for some months or even years after the comparatively minor offence has been allegedly committed. Of course I beg leave to withdraw the amendment.

Amendment 18 withdrawn.

Photo of Lord Lexden Lord Lexden Deputy Chairman of Committees, Deputy Speaker (Lords) 9:15, 9 March 2021

My Lords, we now come to the group beginning with Amendment 19. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.

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