Rapport bimensuel du directeur du programme : semaine 33 et 34 1982, contribution VCU
Where a relevant prosecutor makes a decision to which this section applies and the conditions in subsections (3) and (4) are met, the prosecutor must, in making the decision—
apply the principle set out in section 2, and
comply with section 3.
This section applies to a decision of a relevant prosecutor as to— (but does not apply to a prosecutor's decision so far as it relates to whether or not there is sufficient evidence to justify prosecution).
whether or not proceedings should be brought against a person for a relevant offence, or
whether or not any proceedings against a person for a relevant offence should be continued,
The first condition is that the alleged conduct took place (outside the British Islands) at a time when the person was—
a member of the regular or reserve forces, or a member of a British overseas territory force to whom section 369(2) of the Armed Forces Act 2006 (persons subject to service law) applies, and
deployed on overseas operations.
The second condition is that the period of 5 years beginning with the day on which the alleged conduct took place has expired.
If the offence is alleged to have continued over a period of days, the 5 year period mentioned in subsection (4) is to be taken to begin with the last of those days.
In this Part “overseas operations” means any operations outside the British Islands, including peacekeeping operations and operations for dealing with terrorism, civil unrest or serious public disorder, in the course of which members of Her Majesty's forces come under attack or face the threat of attack or violent resistance.
The principle referred to in section 1(1) is that it is to be exceptional for a relevant prosecutor making a decision to which that section applies to determine that proceedings should be brought against the person for the offence or, as the case may be, that the proceedings against the person for the offence should be continued.
In making a decision to which section 1 applies, a relevant prosecutor must give particular weight to the matters set out in subsection (2) (so far as they tend to reduce the person's culpability or otherwise tend against prosecution).
Those matters are—
the adverse effect (or likely adverse effect) on the person of the conditions the person was exposed to during deployment on the operations mentioned in section 1(3)(b), including their experiences and responsibilities (for example, 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);
in a case where there has been a relevant previous investigation and no compelling new evidence has become available, the public interest in finality (as regards how the person is to be dealt with) being achieved without undue delay.
In considering the matter in subsection (2)(a), the prosecutor must have regard to the exceptional demands and stresses to which members of Her Majesty's forces are likely to be subject while deployed on overseas operations, regardless of their length of service, rank or personal resilience.
In subsection (2)(a) “adverse effect”, in relation to a person, means— and in this subsection “effect” means an effect at the time of the alleged conduct.
an adverse effect on their capacity to make sound judgements or exercise self control, or
any other adverse effect on their mental health,
For the purposes of section 3(2)(b) and this section “relevant previous investigation” means an investigation into the alleged conduct which—
was carried out by an investigating authority,
has ceased to be active, and
either did not lead to any decision as to whether or not the person should be charged with an offence, or led to a decision that the person should not be charged with any offence.
For the purposes of section 3(2)(b), where there has been at least one relevant previous investigation in relation to the alleged conduct, evidence—
is not “new” if it has been taken into account in the relevant previous investigation (or in any of them);
otherwise, is “new”.
This section applies where—
the condition in subsection (4) is met in relation to potential proceedings against a person for a relevant offence, and
the period of 5 years beginning with the day on which the alleged conduct took place has expired.
If the offence is a service offence, no proceedings may be instituted against the person for the offence under the Armed Forces Act 2006 except with the consent of the Attorney General.
No proceedings may be instituted against the person for the offence—
where the offence is punishable with a criminal penalty by the law of England and Wales, except with the consent of the Attorney General,
where the offence is punishable with a criminal penalty by the law of Northern Ireland, except with the consent of the Advocate General for Northern Ireland.
The condition mentioned in subsection (1)(a) is that the alleged conduct took place (outside the British Islands) at a time when the person was—
a member of the regular or reserve forces, or a member of a British overseas territory force to whom section 369(2) of the Armed Forces Act 2006 (persons subject to service law) applies, and
deployed on overseas operations.
If the offence is alleged to have continued over a period of days, the 5 year period mentioned in subsection (1)(b) is to be taken to begin with the last of those days.
“Relevant offence” means any of the following (but with the exceptions set out in subsections (2) to (5))—
an offence under section 42 of the Armed Forces Act 2006 (criminal conduct) or any provision mentioned in paragraph 1(2)(a) to (c) of Schedule 1 (provisions superseded by that section), and
an offence punishable with a criminal penalty by the law of any part of the United Kingdom.
An offence is not a “relevant offence” if it is committed against an individual who at the time when the offence is committed is—
a member of the regular or reserve forces,
a member of a British overseas territory force,
a Crown servant, or
a defence contractor.
A service offence is not a “relevant offence” if it is an excluded offence by virtue of Part 1 of Schedule 1.
An offence punishable with a criminal penalty by the law of England and Wales, or of Northern Ireland, is not a “relevant offence” if it is an excluded offence in that part of the United Kingdom by virtue of Part 2 or 5 of Schedule 1.
An offence punishable with a criminal penalty by the law of Scotland is not a “relevant offence” if it is an excluded offence in Scotland by virtue of Part 3 or 5 of Schedule 1.
An offence is not a “relevant offence” if it is an excluded offence by virtue of Part 4 of Schedule 1.
Where— the day (or time) of the alleged conduct is not to be taken to be different from what it would have been if the death had occurred when the injury was sustained.
the offence mentioned in section 1(2) or 5(1)(a) is murder or any other offence one of the elements of which is causing a person's death, and
the death occurred after the day on which the person sustained the injury that caused it,
In this Part references to the British Islands include the territorial sea adjacent to the United Kingdom and the territorial sea adjacent to any of the Channel Islands or the Isle of Man.
The following are “relevant prosecutors” for the purposes of this Part—
the Director of Service Prosecutions and any person appointed under section 365 of the Armed Forces Act 2006 (prosecuting officers);
in England and Wales, the Director of Public Prosecutions, a Crown Prosecutor and any person to whom the institution or taking over of proceedings for the offence mentioned in section 1(2) has been assigned under section 5(1) of the Prosecution of Offences Act 1985;
in Scotland, any prosecutor as defined in section 307(1) of the Criminal Procedure (Scotland) Act 1995 (other than a private prosecutor);
in Northern Ireland, the Director of Public Prosecutions for Northern Ireland, the Deputy Director of Public Prosecutions for Northern Ireland, a Public Prosecutor and any person to whom the institution or taking over of proceedings for the offence mentioned in section 1(2) has been assigned under section 36(2) of the Justice (Northern Ireland) Act 2002 (c. 26 (N.I.)).
In this Part—
“British overseas territory force” means any of Her Majesty's forces that is raised under the law of a British overseas territory;
the tri-service serious crime unit,
An offence under section 58 of the International Criminal Court Act 2001 (genocide, crimes against humanity and war crimes).
“relevant previous investigation” has the meaning given by section 4;
An ancillary offence under the law of Northern Ireland in relation to an offence within paragraph 21.
an overseas police force;
An offence under subsection (1) of section 59 of the International Criminal Court Act 2001 (conduct ancillary to war crimes etc committed outside jurisdiction) where the act referred to in that subsection would, if committed in Northern Ireland, constitute—
an offence within paragraph 21, or
an offence within this paragraph.
“alleged conduct”, in relation to proceedings or potential proceedings for an offence, means the act or omission alleged to constitute the offence;
a UK police force, or
“Crown servant” means a person employed by or in the service of the Government of the United Kingdom;
“the reserve forces” has the same meaning as in the Armed Forces Act 2006 (see section 374 of that Act);
“defence contractor” means a person engaged in providing goods or services for the purposes of any of Her Majesty’s forces under contract (whether as, or on behalf of, a party to the contract);
An offence under the law of England and Wales or Northern Ireland within any of paragraphs 18 to 23 is an “excluded offence” in that part of the United Kingdom.
“relevant prosecutor” has the meaning given by subsection (3);
a service police force,
In this Part of this Schedule references to an ancillary offence are to be interpreted in accordance with section 7 of the International Criminal Court (Scotland) Act 2001.
Where by virtue of section 55 of the Sexual Offences (Scotland) Act 2009 (offences committed outside the United Kingdom) an act done outside the United Kingdom constitutes an offence under the law of Scotland, that offence is an “excluded offence” in Scotland. Where by virtue of subsection (2A) of that section proceedings for an offence may be brought against a person in Scotland in respect of an act done outside the United Kingdom, that offence is an “excluded offence” in relation to Scotland.
“investigating authority” means—
Subsections (2) and (3) of section 368 of the Armed Forces Act 2006 (references to members of the regular forces) apply for the purposes of this Part as they apply for the purposes of that Act.
Part 1 of Schedule 2 amends the Limitation Act 1980—
to limit the court's discretion to disapply time limits for actions in respect of personal injuries or death which relate to overseas operations of the armed forces, and
to specify additional factors to which a court must have regard in exercising that discretion.
Part 2 of Schedule 2 amends the Foreign Limitation Periods Act 1984 to modify the effect of foreign limitation law (where such law applies by reason of that Act) in respect of actions which relate to overseas operations of the armed forces.
Part 1 of Schedule 3 amends the Prescription and Limitation (Scotland) Act 1973—
to limit the court's power to override time limits for actions in respect of personal injuries or death which relate to overseas operations of the armed forces, and
to specify factors to which a court must have regard in exercising that power.
Part 2 of Schedule 3 amends that Act to modify the effect of foreign limitation law (where such law applies by virtue of that Act) in respect of actions which relate to overseas operations of the armed forces.
Part 1 of Schedule 4 amends the Limitation (Northern Ireland) Order 1989 (S.I. 1989/1339 (N.I. 11))—
to limit the court's discretion to disapply time limits for actions in respect of personal injuries or death which relate to overseas operations of the armed forces, and
to specify additional factors to which a court must have regard in exercising that discretion.
Part 2 of Schedule 4 amends the Foreign Limitation Periods (Northern Ireland) Order 1985 (S.I. 1985/754 (N.I. 5)) to modify the effect of foreign limitation law (where such law applies by reason of that Order) in respect of actions which relate to overseas operations of the armed forces.
The Human Rights Act 1998 is amended as follows.
After section 7 insert—
In section 22 (short title, commencement, application and extent), after subsection (4) insert—
The Secretary of State or the Lord Chancellor may by regulations make provision that is consequential on any provision made by this Act.
Regulations under this section are to be made by statutory instrument and—
may include transitional or saving provision;
may amend, repeal or revoke any provision of or made under primary legislation.
The provision referred to in subsection (2)(b) does not include a provision of legislation passed or made after the end of the session of Parliament in which this Act is passed.
A statutory instrument containing (whether alone or with other provision) regulations under this section that amend, repeal or revoke primary legislation may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.
Any other statutory instrument containing regulations under this section is subject to annulment in pursuance of a resolution of either House of Parliament.
In this section “primary legislation” means—
an Act,
an Act of the Scottish Parliament, or
Northern Ireland legislation.
This Act extends to England and Wales, Scotland and Northern Ireland, subject as follows.
Section 8 and Schedule 2 extend to England and Wales only.
Section 9 and Schedule 3 extend to Scotland only.
Section 10 and Schedule 4 extend to Northern Ireland only.
This Part comes into force on the day on which this Act is passed.
The other provisions of this Act come into force on such day as the Secretary of State or the Lord Chancellor may by regulations appoint.
Different days may be appointed for different purposes.
The Secretary of State or the Lord Chancellor may by regulations make transitional or saving provision in connection with the coming into force of any provision of this Act.
Regulations under this section are to be made by statutory instrument.
None of the provisions of Part 1 applies to proceedings instituted before the day on which the provision comes into force.
Part 1 of Schedule 2 applies to an action brought on or after the date on which that Part comes into force, whenever the cause of action accrued.
Part 1 of Schedule 3 applies to an action brought on or after the date on which that Part comes into force, whenever the right of action accrued.
Part 2 of Schedule 3 applies to an action brought on or after the date on which that Part comes into force, whenever the events to which the action relates took place.
Part 1 of Schedule 4 applies to an action brought on or after the date on which that Part comes into force, whenever the cause of action accrued.
This Act may be cited as the Overseas Operations (Service Personnel and Veterans) Act 2021.
Section 6
An offence under section 42 of the Armed Forces Act 2006 (criminal conduct) is an “excluded offence” if the corresponding civil offence is an offence referred to in any of paragraphs 2 to 14, 30 and 31. In sub-paragraph (1) the reference to section 42 of the Armed Forces Act 2006 is to be taken to include a reference to—
An offence under any provision of the Sexual Offences Act 1956.
Where by virtue of section 72 of the Sexual Offences Act 2003 (offences outside the United Kingdom) an act done outside the United Kingdom constitutes an offence under the law of England and Wales or Northern Ireland, that offence is an “excluded offence” in that part of the United Kingdom. Where by virtue of subsection (3) of that section proceedings for an offence may be brought against a person in England and Wales or Northern Ireland in respect of an act done outside the United Kingdom, that offence is an “excluded offence” in that part of the United Kingdom.
Where by virtue of section 7 of the Sex Offenders Act 1997 (sexual offences committed outside the United Kingdom) an act done outside the United Kingdom constitutes an offence under the law of England and Wales or Northern Ireland, that offence is an “excluded offence” in that part of the United Kingdom.
An offence under section 1 of the Indecency with Children Act 1960 (indecent conduct towards child under 14).
Where by virtue of section 16B of the Criminal Law (Consolidation) (Scotland) Act 1995 (commission of certain sexual acts outside the United Kingdom) an act done outside the United Kingdom constitutes an offence under the law of Scotland, that offence is an “excluded offence” in Scotland.
An offence under section 1(1) of the Genocide Act 1969 (genocide).
An offence under section 54 of the Criminal Law Act 1977 (inciting child under 16 to commit incest).
An offence under section 1 of the Protection of Children Act 1978 (indecent photographs of children).
An offence under section 160 of the Criminal Justice Act 1988 (possession of indecent photograph of a child).
An offence under any provision of the Sexual Offences Act 2003.
An offence under section 63 of the Criminal Justice and Immigration Act 2008 (possession of extreme pornographic images).
An offence under section 62 of the Coroners and Justice Act 2009 (possession of prohibited images of children).
An offence under section 33 of the Criminal Justice and Courts Act 2015 (disclosing private sexual photographs and films with intent to cause distress).
An offence under section 2 of the Modern Slavery Act 2015 (human trafficking) committed with a view to exploitation that consists of or includes behaviour within section 3(3) of that Act (sexual exploitation).
An offence at common law of outraging public decency.
An offence within any of paragraphs 18 to 20 (certain offences under the International Criminal Court Act 2001).
A reference in paragraphs 2 to 14 or paragraphs 30 and 31 to an offence (“offence A”) includes—
a reference to an attempt to commit offence A,
a reference to a conspiracy to commit offence A,
a reference to incitement to commit offence A,
a reference to an offence under Part 2 of the Serious Crime Act 2007 in relation to which offence A is the offence (or one of the offences) which the person intended or believed would be committed, and
a reference to aiding and abetting, counselling or procuring the commission of offence A.
In paragraph 1(1) the reference to the “corresponding civil offence” is— Section 48 of the Armed Forces Act 2006 (supplementary provisions relating to ancillary service offences) applies for the purposes of sub-paragraph (1)(a) as it applies for the purposes of the provisions of that Act referred to in subsection (3)(b) of that section.
An offence under section 51 of the International Criminal Court Act 2001 (genocide, crimes against humanity and war crimes).
An ancillary offence under the law of England and Wales in relation to an offence within paragraph 18.
An offence under subsection (1) of section 52 of the International Criminal Court Act 2001 (conduct ancillary to war crimes etc committed outside jurisdiction) where the act referred to in that subsection would, if committed in England and Wales, constitute—
an offence within paragraph 18, or
an offence within this paragraph.
“overseas operations” has the meaning given by section 1(6);
In this Part of this Schedule—
references to an ancillary offence under the law of England and Wales are to be interpreted in accordance with section 55 of the International Criminal Court Act 2001;
references to an ancillary offence under the law of Northern Ireland are to be interpreted in accordance with section 62 of that Act.
Where by virtue of Article 76 of the Sexual Offences (Northern Ireland) Order 2008 (offences outside the United Kingdom) an act done outside the United Kingdom constitutes an offence under the law of Northern Ireland, that offence is an “excluded offence” in Northern Ireland. Where by virtue of paragraph (3) of that Article proceedings for an offence may be brought against a person in Northern Ireland in respect of an act done outside the United Kingdom, that offence is an “excluded offence” in Northern Ireland.
An offence within any of paragraphs 26 to 28 is an “excluded offence” in Scotland.
An offence under section 1(1) of the International Criminal Court (Scotland) Act 2001 (asp 13) (genocide, crimes against humanity and war crimes).
An offence under section 2(1) of that Act (conduct ancillary to war crimes etc) of engaging in conduct ancillary to an act that constitutes—
an offence within paragraph 26, or
an offence within this paragraph or paragraph 28.
An offence under subsection (3) of section 2 of that Act of engaging in conduct ancillary to an act committed (or intended to be committed) outside Scotland, where—
the offence mentioned in paragraph (a) of that subsection is an offence within paragraph 26, or
(as the case may be) the offence mentioned in paragraph (b) of that subsection is an offence within paragraph 27.
An offence under section 134 of the Criminal Justice Act 1988 (torture) is an excluded offence.
An offence under section 1(1) of the Geneva Conventions Act 1957 (grave breaches of the Geneva Conventions) is an excluded offence.
Section 8
Section 33 of the Limitation Act 1980 (discretionary exclusion of time limit for actions in respect of personal injuries or death) is amended as follows. After subsection (1) insert— After subsection (2) insert— After subsection (5) insert— After subsection (6) insert— For subsection (7) substitute— In subsection (8), after “this section” in the first place it occurs, insert —.
The Foreign Limitation Periods Act 1984 is amended as follows. In section 1 (application of foreign limitation law), in subsection (1)(a), after “subject to” insert “section 1ZA and”. After section 1 insert— In section 7 (short title etc), after subsection (3) insert— In section 8 (disapplication of provisions where the law applicable to limitation is determined by other instruments), in the heading and in subsection (1), after “1,” insert “1ZA,”.
Section 9
The Prescription and Limitation (Scotland) Act 1973 is amended as follows. In section 19A (power of court to override time-limits etc), in subsection (1), after “that provision” insert “(but see section 19AA)”. After section 19A, insert—
The Prescription and Limitation (Scotland) Act 1973 is amended as follows. In section 23A (private international law application)— After section 23A, insert—
Section 10
Article 50 of the Limitation (Northern Ireland) Order 1989 (S.I. 1989/1339 (N.I. 11)) (court’s power to override certain time limits) is amended as follows. After paragraph (1) insert— After paragraph (3) insert— After paragraph (6) insert— After paragraph (7) insert— For paragraph (8) substitute— In paragraph (9), after “this Article” insert —.
The Foreign Limitation Periods (Northern Ireland) Order 1985 (S.I. 1985/754 (N.I. 5)) is amended as follows. In Article 3 (application of foreign limitation law), in paragraph (1)(a), after “proceedings” insert “, subject to Article 3A”. After Article 3 insert— In Article 8 (transitional provisions), after paragraph (2) insert— In Article 9 (disapplication of provisions where the law applicable to limitation is determined by other instruments), in paragraph (1), after “Articles 3” insert “, 3A”.