Search Legislation

Advanced Search

Overseas Operations (Service Personnel And Veterans) Act 2021

Contents

Commentary on provisions of Act

Part 1: Restrictions on prosecution for certain offences

Presumption against prosecution

Section 1: Prosecutorial decision regarding alleged conduct during overseas operations

  1. This section sets out when the statutory presumption against prosecution (section 2), and the requirement to give particular weight to specified factors (section 3), will apply to decisions whether or not to prosecute in criminal cases. The effect of the section is such that the measures at sections 2 and 3 also apply to decisions as to whether or not private prosecutions should be allowed to continue.
  2. This section sets out:
    1. which groups will be covered by sections 2 and 3 of the Act: the Armed Forces (reserves and regulars), and members of British Overseas Territory Forces (BOTF) when operating with UK Armed Forces;
    2. that the measures only apply to events that took place more than five years ago, with the start point for calculating this time period being the date that the alleged conduct occurred. Where an alleged offence continued over more than one day, the start point for the 5-year time period will be the last day on which the alleged conduct occurred;
    3. that the measures at sections 2 and 3 only apply to these groups when they are deployed on relevant overseas operations; and
    4. what is meant by "relevant overseas operations".

Section 2: Presumption against prosecution

  1. This section explains the effect of the presumption: that it is to be exceptional for a prosecutor to determine that proceedings should be brought in relation to offences committed by members of the Armed Forces when deployed on operations outside of the British Islands more than five years earlier.

Section 3: Matters to be given particular weight

  1. This section sets out specific matters to which a prosecutor must give particular weight when deciding whether or not to bring proceedings in a particular case. These matters are:
    1. Subsection (2)(a) - the demands of overseas military operations, and the adverse effects that deployment on such operations can have on Service personnel, including on their capacity to make sound decisions and their mental health (this is further expanded in 3(3) and 3(4)).
    2. Subsection (2)(b) – applies to the situation where there has been a previous investigation or investigations in relation to alleged criminal conduct and no compelling new evidence has arisen since any such investigation(s). This section ensures that, in these circumstances, the public interest in finality being achieved without undue delay is a matter to which the prosecutor gives particular weight when making a decision.
  2. The requirement to give weight to these matters is limited to where they tend to reduce the culpability of the accused individual or otherwise tend against prosecution.

Section 4: Section 3: supplementary

  1. This section explains what is meant by "relevant previous investigation" and "new" evidence.

Consent to prosecution

Section 5: Requirement of consent to prosecute

  1. This section sets out the requirement that if a prosecutor determines that, notwithstanding the presumption against prosecution (at section 2) and the requirement to give particular weight to specified matters (at section 3), it is appropriate to prosecute a current or former member of the Armed Forces in relation to an alleged offence committed on overseas operations more than five years ago, the consent of the Attorney General for England and Wales, or the Advocate General for Northern Ireland, must be obtained before a prosecution can proceed. The section does not extend to Scotland given that all criminal prosecution decisions in the public interest in Scotland are taken by, or on behalf of, the Lord Advocate. This is reflected in the Scotland Act 1998 which upholds the constitutional role of the Lord Advocate as the head of the systems of criminal prosecution and investigation of deaths in Scotland.

Section 6: "Relevant offence"

  1. The definition of a "relevant offence" includes service offences under section 42 of the Armed Forces Act 2006 and all criminal offences except those that are excluded by virtue of Schedule 1.
  2. Any alleged offences committed by the groups identified in section 1 against a member of the Armed Forces (including BOTF), a Crown Servant or a defence contractor will not constitute a relevant offence.

Section 7: General interpretation etc

  1. This section provides definitions and supplementary explanations for terminology appearing in sections 1 to 7. In particular:
    1. Subsection (1) provides that for murder or any other offence that causes death, where the victim's death occurred after the date of the injury, the five year time period will be counted from the day of the alleged conduct (rather than from the date of death).
    2. Subsection (2) explains what is covered by the term "the British Islands".
    3. Subsection (3) defines "relevant prosecutors"; namely, the Director of Service Prosecutions, together with the public prosecutors in England & Wales, Scotland and Northern Ireland.
    4. Subsection (4) defines a number of other terms used in this Part. In particular, it identifies the investigating authorities.

Part 2: Limitation Periods

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

  1. Subsection (1) introduces Schedule 2, Part 1 which amends the rules governing the court’s discretion to disapply the three-year time limit for bringing claims for personal injuries and deaths as set out in the Limitation Act 1980 (LA); it provides that the limitation period cannot be extended beyond six years, and specifies additional factors to which the court must have particular regard when exercising its discretion. These changes apply only to claims for personal injuries or deaths which are connected with overseas operations.
  2. Subsection (2) explains that Part 2 of Schedule 2 amends the Foreign Limitation Periods Act 1984. These changes ensure that where foreign limitation periods are to be applied in personal injury and/or death claims connected with overseas operations which are brought in England or Wales, claimants will not benefit from more generous time limits that may be available in that foreign law.

Section 9: Restrictions on time limits to bring actions: Scotland

  1. Subsection (1) introduces Schedule 3, Part 1 which amends the rules governing the court’s discretion to override the three-year time limit for bringing claims for personal injuries and deaths as set out in the Prescription and Limitation (Scotland) Act 1973; it provides that the limitation period cannot be extended beyond six years, and specifies factors to which the court must have particular regard when exercising its discretion. These changes apply only to claims for personal injuries or deaths which are connected with overseas operations.
  2. Subsection (2) explains that Part 2 of Schedule 3 amends the Prescription and Limitation (Scotland) Act 1973 to ensure that where foreign limitation periods are to be applied in personal injury and/or death claims connected with overseas operations which are brought in Scotland, claimants will not benefit from more generous time limits in that foreign law.

Section 10: Restrictions on time limits to bring actions: Northern Ireland

  1. Subsection (1) introduces Schedule 4, Part 1 which amends the rules governing the court’s discretion to disapply the three-year time limit for bringing claims for personal injuries and deaths as set out in the Limitation (Northern Ireland) Order 1989/1339; it provides that the limitation period cannot be extended beyond six years, and specifies additional factors to which the court must have regard when exercising its discretion. These changes apply only to claims for personal injuries or deaths sustained which are connected with overseas operations.
  2. Subsection (2) explains that Part 2 of Schedule 4 amends the Foreign Limitation Periods (Northern Ireland) Order 1985/754. These changes ensure that where foreign limitation periods are to be applied in personal injury and/or death claims connected with overseas operations which are brought in Northern Ireland, claimants will not benefit from more generous time limits that may be available in that foreign law.

Section 11: Court’s discretion to extend time in certain Human Rights Act proceedings

  1. This section amends the rules governing the court’s discretion to extend the one-year time limit for bringing claims under the HRA. These changes apply only to proceedings in connection with overseas operations.
  2. Subsection (2) inserts a new section 7A into the HRA.
  3. Section 7A(1) specifies that a court’s exercise of discretion is subject to section 7A(2) and (4).
    1. Section 7A(2) sets out certain factors to which the court must have particular regard, when deciding whether to allow a claim to proceed beyond the normal time limit. These factors are intended to ensure that the court takes proper account of the operational context (as defined in section 7A(3)), and the likely impact of proceedings on the mental health of the Service personnel or veterans involved.
    2. Section 7A(4) imposes a rule that claims cannot proceed more than six years after the act complained of occurred, or more than one year after the date of knowledge (as defined in section 7A(5)) if that one-year period expires more than six years after the date of the act.
  4. Subsection (3) specifies that new section 7A applies to any such claim that is commenced after that section comes into force. Claims that have been commenced before new section 7A comes into force are unaffected by these amendments.
  5. Section 7A(6) establishes the scope of section 7A; it applies only to claims brought against the Ministry of Defence or Secretary of State for Defence in connection with overseas operations (as defined in section 7A(7)). Proceedings will not be "in connection with" overseas operations if they relate to preparatory work, e.g. training in preparation for overseas operations.
  6. Sections 7A(8) and (7A)(9) define "the British Islands" and "Her Majesty’s forces".

Part 3: General

Section 12: Power to make consequential provision

  1. This section provides the Secretary of State and the Lord Chancellor with the power to make consequential amendments.

Section 13: Extent

  1. This section sets out the territorial extent of the Act. It extends to England and Wales, Scotland and Northern Ireland, except as specified in this section.

Section 14: Commencement and application

  1. This section makes provision about the coming into force of the provisions of the Act.
  2. None of the provisions in sections 1 to 11 will apply to proceedings started before the date on which the provisions of the Act come into force.

Section 15: Short Title

  1. This section sets out the short title of the Act.

Schedule 1: Excluded offences for the purposes of section 6

  1. Schedule 1 details the offences excluded from the scope of the requirements of Sections 2, 3 and 5, and is structured as follows:
    • Part 1 – Criminal conduct etc under Armed Forces legislation. This Part of Schedule 1 excludes sexual offences.
    • Part 2 – International Criminal Court Act 2001. This Part of Schedule 1 excludes offences of genocide, crimes against humanity and war crimes under the International Criminal Court Act 2001 (in the law of England and Wales and Northern Ireland).
    • Part 3 – International Criminal Court (Scotland) Act 2001. This Part of Schedule 1 excludes the offences of genocide, crimes against humanity and war crimes under the International Criminal Court (Scotland) Act 2001.
    • Part 4 – Other offences. This Part of Schedule 1 excludes the offence of torture under s.134 of the Criminal Justice Act 1988, as well as all offences under section 1(1) Geneva Conventions Act 1957.
    • Part 5 – Provisions extending jurisdiction in respect of certain sexual offences. This Part of Schedule 1 excludes certain sexual offences under provisions that extend jurisdiction (whereby certain acts, if done outside of the UK, constitute offences in UK).

Schedule 2: Limitation periods: England and Wales

Part 1 – Court’s discretion to disapply time limits
  1. Part 1 of Schedule 2 amends section 33 of the LA, which sets out the factors that the court must have particular regard to when exercising its discretion to extend the normal time limit (set out in section 11 and section 12 of the LA) for bringing claims for personal injury or death. These amendments do not change the way in which the time limit is calculated.
  2. Paragraph 1(2) inserts new subsections (1ZA) to (1ZC) into section 33 of the LA.
    1. Subsection (1ZA) prohibits the court from allowing any claim to proceed if it has been commenced more than six years after the relevant date (as defined in new subsection (7)).
    2. Subsection (1ZB) specifies that these amendments apply only to claims against the Ministry of Defence or Secretary of State for Defence or members of Her Majesty’s forces made in connection with overseas operations (as defined in new subsection (7)) where the damage (as defined in subsection (1ZC)) complained of occurred outside the British Islands.
  3. Paragraph 1(3) inserts new subsections (2A) to (2B) into section 33 of the LA. These specify the effect of these amendments in relations to section 12 of the LA.
  4. Paragraph 1(4) inserts new subsections (5A) and (5B) into section 33 of the LA. Subsection (5A) specifies those additional factors to which the court must have particular regard, when deciding whether to disapply the normal time limit for bringing a personal injury or death claim. These factors are intended to ensure that the court takes proper account of the operational context (as defined in subsection (5B)), and the likely impact of giving evidence on the mental health of the Service personnel or veterans involved.
  5. Paragraph 1(5), which inserts a new subsection (6A) into section 33 of the LA, clarifies how these amendments will apply in light of the Limitation (Enemies and War Prisoners) Act 1945.
  6. Paragraph 1(6) substitutes a new subsection (7) into section 33 of the LA. This amends the definitions used to restrict the effect of these amendments to claims for personal injuries or deaths connected with overseas operations; and explains how "the relevant date" is to be calculated.
Part 2 – Restriction of foreign limitation law
  1. Part 2 of Schedule 2 amends the Foreign Limitation Periods Act 1984, and ensures that where foreign limitation periods are applicable to personal injury and/or death claims connected with overseas operations brought in England or Wales, claimants cannot benefit from more generous time limits in that foreign law. Those amendments restrict – to a maximum of six years from the date on which the cause of action arose – the court’s discretion to extend the normal time limit for bringing claims against the Ministry of Defence, the Secretary of State for Defence, or members of Her Majesty’s forces for personal injuries, deaths or false imprisonment that occurred in connection with an overseas operation.
  2. Paragraphs 2(2) and (3) insert a new section (1ZA) into the Act.
  3. Subsection (1ZA)(1) specifies that, for subsection (1ZA)(3) to apply, the conditions set out in subsections (1ZA)(1) and (1ZA)(2) must be met.
  4. Subsection (1ZA)(1) requires that the cause of action has arisen in connection with an overseas military operation, and is subject to the limitation law of the foreign country under whose law the tort claim has been brought.
  5. Subsection (1ZA)(2) requires that a period of six years must have elapsed since the date on which the foreign limitation period began, or when the action could first have been brought.
  6. If both those conditions are satisfied, subsection (1ZA)(3) specifies that the defendant (i.e. Ministry of Defence, the Secretary of State for Defence, or members of Her Majesty’s forces) will have a complete defence to any such claim. This ensures that no claim in relation to overseas operations that is brought in reliance on foreign law can proceed after six years.
  7. Subsection (1ZA)(4) defines the meaning of "overseas armed forces tort action".
  8. Subsections (1ZA)(5) and (6) specify what should happen in relation to claims where the limitation period under the applicable foreign law has been suspended, interrupted, or disregarded, or where the Limitation (Enemies and Prisoners of War) Act 1945 applies.
  9. Paragraph 2(4) inserts a new subsection (3A) into section 7 of the Act, and specifies that new section 1ZA applies to any claim that is commenced after that section comes into force. Claims that have been commenced before new section 1ZA comes into force are unaffected by these amendments.

Schedule 3: Limitation periods: Scotland

Part 1 – Court’s power to override time limits
  1. Part 1 of Schedule 3 amends section 19A of the Prescription and Limitation (Scotland) Act 1973, which permits the court to override the normal time limit for bringing personal injury and/or death claims.
  2. Paragraph 1(3) inserts a new section 19AA, which restricts the power in section 19A in relation to overseas operations.
    1. New section 19AA(2) makes the exercise of the discretionary power subject to new section 19AA(3) and 19AA(5) to 19AA(7).
    2. New section 19AA(3) specifies the factors to which the court must have particular regard when deciding whether to disapply the normal time limit for bringing a claim for personal injury (including delictual protection of liberty i.e. false imprisonment) or death. These factors are intended to ensure that the court takes proper account of the operational context (as defined in new section 19AA(4)), and the likely impact of giving evidence on the mental health of the Service personnel or veterans involved.
    3. New sections (19AA)(5) and (19AA)(6) prohibit the court from allowing any claim to proceed if it has been commenced more than six years after the relevant date (as defined in section 19AA(13)). Section 19AA(7) prohibits the court from allowing a claim under section 18(4) of the Act to proceed unless the person died within six years of the relevant date (as defined in section 19AA(13)).
    4. New sections 19AA(8) to (10) specify what should happen where periods of time have been disregarded, or where the Limitation (Enemies and War Prisoners) Act 1945 applies.
    5. New sections 19AA(11) to (14) provide definitions of the terms used elsewhere in this section.
Part 2 – Restriction of foreign limitation law
  1. Part 2 of Schedule 3 amends section 23A of the Prescription and Limitation (Scotland) Act 1973, and ensures that where foreign limitation periods are applicable to personal injury and/or death claims connected with overseas operations brought in Scotland, claimants cannot benefit from more generous time limits in foreign law. Those amendments restrict – to a maximum of six years from the date on which the cause of action arose – the court’s discretion to extend the normal time limit for bringing claims against the Ministry of Defence, the Secretary of State for Defence, or members of Her Majesty’s forces for personal injuries, deaths or false imprisonment that occurred during an overseas operation.
  2. Paragraph 2(1) and (3) insert a new section 23B into the Act.
  3. Section 23B(1) specifies that subsection (3) applies where the conditions set out in subsections (1) and (2) are met.
    1. Section 23B(1) requires that the cause of action has arisen in relation to an overseas operation, and is subject to the limitation law of the foreign country under whose law the personal injury claim has been brought.
    2. Section 23B(2) requires that a period of six years must have elapsed since the date on which the foreign limitation period began, or when the action could first have been brought.
  4. If both those conditions are satisfied, subsection (3) specifies that the defendant (i.e. Ministry of Defence, the Secretary of State for Defence, or members of Her Majesty’s forces) will have a complete defence to any such claim. This ensures that no claim in relation to overseas operations that is brought in reliance on foreign law can proceed after six years.
  5. Section 23B(4) defines the meaning of "overseas armed forces personal injury action".
  6. Sections 23B(5) specifies what should happen in relation to claims where the limitation period under the applicable foreign law has been suspended, interrupted or disregarded.

Schedule 4: Limitation periods: Northern Ireland

Part 1 – Court’s discretion to disapply time limits
  1. Part 1 of Schedule 4 amends article 50 of the Limitation (Northern Ireland) Order 1989 / 1339, which permits the Court to override the normal time limit for bringing claims for personal injury and/or death.
  2. Paragraph 1(2) inserts new paragraphs (1A) to (1C).
    1. New paragraph (1A) prohibits the court from allowing any claim to proceed if it has been commenced more than six years after the relevant date (as defined in new paragraph (8)).
    2. New paragraph (1B) specifies that these amendments apply only to claims against the Ministry of Defence or Secretary of State for Defence or members of Her Majesty’s forces made in connection with overseas operations where the damage (as defined in paragraph (1C)) complained of occurred outside the British Islands.
  3. Paragraph 1(3) inserts new paragraphs (3A) and (3B), which explain how these amendments interact with article 9.
  4. Paragraph 1(4) inserts new paragraph (6A). Paragraph (6A) specifies those additional factors to which the court must have particular regard when deciding whether to disapply the normal time limit for bringing a personal injury or death claim. These factors are intended to ensure that the court takes proper account of the operational context (as defined in paragraph (6B)), and the likely impact of giving evidence on the mental health of the Service personnel or veterans involved.
  5. Paragraph (1)(5) inserts a new paragraph (7A), which clarifies how these amendments will apply in light of the Limitation (Enemies and War Prisoners) Act 1945.
  6. Paragraph 1(6) and (7) insert new definitions.
Part 2 – Restriction of foreign limitation law
  1. Part 2 of Schedule 4 amends the Foreign Limitation Periods (Northern Ireland) Order 1985/754, and ensures that where foreign limitation periods are applicable to personal injury and/or death claims connected with overseas operations brought in Scotland, claimants cannot benefit from more generous time limits in foreign law. Those amendments restrict – to a maximum of six years from the date on which the cause of action arose – the court’s discretion to extend the normal time limit for bringing claims against the Ministry of Defence, the Secretary of State for Defence, or members of Her Majesty’s forces for personal injuries, deaths or false imprisonment that occurred during an overseas operation.
  2. Paragraph 2(1) and (3) insert a new article 3A into the Order.
  3. Article 3A(1) specifies that, for article 3A(3) to apply, the conditions set out in paragraphs (1) and (2) must be met.
    1. Article 3A(1) requires that the cause of action has arisen in relation to an overseas operation, and is subject to the limitation law of the foreign country under whose law the tort claim has been brought.
    2. Article 3A(2) requires that a period of six years must have elapsed since the date on which the foreign limitation period began, or when the action could first have been brought.
  4. If both those conditions are satisfied, article 3A(3) specifies that the defendant (i.e. Ministry of Defence, the Secretary of State for Defence, or members of Her Majesty’s forces) will have a complete defence to any such claim. This ensures that no claim in relation to overseas operations that is brought in reliance on foreign law can proceed after six years.
  5. Article 3A(4) defines the meaning of "overseas armed forces tort action" for the purposes of article 3A.
  6. Article 3A(5) and (6) specifies what should happen in relation to claims where the limitation period under the applicable foreign law has been suspended, interrupted or disregarded, or where the Limitation (Enemies and Prisoners of War) Act 1945 applies.
  7. Paragraph 2(4) amends article 8, and specifies that new article 3A applies to any claim that is commenced after that article comes into force. Claims that have been commenced before new article 3A comes into force are unaffected by these amendments.

Back to top