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Legal protections for armed forces personnel and veterans serving in operations outside the UK – Law Society response

11 October 2019

The proposals

The Ministry of Defence (MoD) is consulting on proposals for legal protections for armed forces personnel.

The proposals include:

  • a statutory presumption against prosecution of current or former personnel for alleged offences committed outside the UK in the course of duty more than 10 years ago
  • a partial defence to murder which would see a conviction reduced to manslaughter for armed forces personnel where force is used in self-defence, but then goes beyond what is proportional
  • a civil litigation ‘longstop’ for claims for personal injury or death as a result of events outside the UK

Our view

We have profound concerns from the outset about some of the language used in this consultation.

The use of the term “lawfare” appears to imply that courts and the rule of law have no place in military matters, and that solicitors bringing legitimate claims in accordance with their professional duties are acting against the national interest.

With regards to the proposed measures, we have concerns about how they would be implemented in practice and their impact on the consistency of criminal and civil law.

The proposal to introduce a presumption against prosecution would create a quasi-statute of limitations and an exception to the normal law for a special category of criminal matters that does not exist anywhere else.

It is arguable that the partial defence to murder is justified in its aim to properly take into account the difficult situations and decisions soldiers face and the dangerous circumstances of heightened tension in which they operate.

However, we also have concerns that it draws arbitrary distinctions which would have unfair outcomes, and that it risks incompatibility with international law.

It is arguable that the need for this change is unsubstantiated and that the law on self-defence already adequately considers the motives and situation of the accused.

The proposal for a civil litigation ‘longstop’ lacks clarity and again creates arbitrary distinctions which would unfairly prevent access to justice for individuals based purely on their profession, when their injury occurred or where their injury occurred.

What this means for solicitors

Solicitors who advise on criminal and civil matters in relations to claims brought by or against armed services personnel in respect of activities outside the UK will be affected by these proposals.

The proposals would create a special category of limits and exemptions for serious criminal offences and civil litigation claims that otherwise do not exist.

We believe several of the proposals would be difficult to legislate for and implement in practice, creating arbitrary distinctions and inconsistency in the law.

Next steps

The consultation closed on 13 October.

The Ministry of Defence will analyse the consultation responses and publish a response on the government website.

Read the consultation on the GOV.UK website