NI’s former Attorney General John Larkin disputes claims that serving or former soldiers are to enjoy immunity from prosecution for torture after five years

The idea that  the new Overseas Operations Bill  gives serving and former soldiers immunity against prosecution even for torture is in dispute.

It’s claimed  that the proposed legislation would create a “triple lock” for troops and veterans, including a presumption against prosecution for alleged offences committed more than five years ago.The bill also proposes to introduce time limits on bringing civil claims in connection with overseas operations; and would place a duty on the government to consider derogating from the European Convention on Human Rights in relation to significant overseas military operations.

Defence Secretary Ben Wallace said: “This government made a promise to the nation to protect service personnel and veterans from vexatious claims and endless investigations. We have not shied away from the challenge and today are one step closer to fulfilling that commitment”.

 John Larkin QC until recently Northern Ireland’s Attorney General   in a ”Note” for the Policy Exchange think tank, agrees soldiers will  have added protection  but will not enjoy anything like “ immunity” during or even after a proposed five year time limit on legal action against them.

However the Bill has been opposed by Amnesty, the UIK Human Rights Commission. The civil libertarian Cons MP and former Brexit Secretary  David Davis   has said  he’s “deeply troubled” by government plans to “decriminalise torture by British personnel if it took place more than five years ago”… Labour’s shadow defence secretary, John Healey, said the government had got “important parts of this bill badly wrong” but promised to work with the government on “better” legislation.

“It is not too late for ministers to think again about the best way to protect service personnel from vexatious litigation while ensuring that those who commit serious crimes during operations are prosecuted and punished appropriately.”

Shami Chakrabati, former director of the human rights lobby group Liberty and Jeremy Corbin’s shadow Attorney General, writes in the Guardian:

 It should be no surprise that ( the government)  now wishes to ignore the UN convention against torture and the European convention on human rights (ECHR)... It severely restricts the ability to prosecute serious criminal wrongdoing by overseas personnel by installing a presumption against doing so after five years. It also requires the attorney general’s consent for any such prosecution. Anyone who has lived through the war on terror will know that we could reasonably face a scenario in which a victim of torture is detained in a legal black hole for far longer than it might take to pursue a crime against them. Further, the law officer who must consent to any prosecution may well have been the person responsible for authorising the operation now being impugned…

All in all, it is hard to envisage how any one of its provisions is consistent with the kind of ethical defence and military policy that all patriots of right and left espouse – at least in public. Dog-whistle political rhetoric is bad enough for our discourse. When it is sprayed onto the statute book, it makes for very bad law indeed.

John Larkin QC rejects particular criticisms of the Bill, denying the existence of “a triple lock.”

While aspects of the Bill are certainly open to criticism (and from a variety of perspectives) the Bill does not create, or come close to creating, “de facto immunity” for serving or former service personnel in respect of serious crimes. There is no lock, far less a triple lock, that would prevent the prosecution of service personnel “for torturing people, no matter how bad the torture or how detailed the evidence.”

Taken together, the Bill’s provisions constitute an enhanced filter on prosecutions after the lapse of five years. The Bill will be, if enacted, part of a larger rule of law context in which extant standards of professionalism and duty figure strongly. The five year period for unrestricted prosecutorial consideration, combined as it is with the open-ended enhanced filter, with no bar on investigations, falsifies the claim that the Bill creates a formal or de facto immunity or impunity or lock – let alone anything remotely like a “triple lock”. The Bill does put hurdles in the way of prosecutions for relevant offences after five years have elapsed. It puts no hurdle in the way of investigations or in the way of prosecutorial consideration of whether sufficient evidence exists to prosecute a particular person for a relevant offence, including torture or other serious crimes. It is clearly wrong to say that the Bill would forbid prosecution of serious allegations of torture supported by evidence.

What the Bill aims to do is to provide some assurance to service personnel that they are unlikely to be prosecuted, once five years have passed from the events in question. The Bill works by requiring prosecutors to take into account the public interest in finality (where there has been a relevant investigation and no new evidence has since emerged) and to think about the difficult conditions to which UK forces are subject while on overseas deployment.

One might reasonably object to the Bill on the grounds that these conditions will often be relevant to decisions about whether to prosecute, even before five years has elapsed, either because they may be relevant to whether the person in question committed an offence at all (if his mental health was such that he could not form the state of mind necessary to constitute a criminal offence) or, more likely, because they may bear on the public interest in prosecution.

What the Bill clearly does not do is guarantee to service personnel that once five years has elapsed no prosecution may be brought against them. Whether a prosecution is warranted will still depend on the relative gravity of the alleged offending, the sufficiency of the evidence that is available, and the prosecutor’s overall judgement about whether a prosecution is in the public interest.