My Lords, once again, I thank the noble Baroness, Lady Massey, and all other contributors to the debate for a fertile discussion. At the risk of sounding repetitive, I shall probably repeat some of the themes to which I have already referred.
In relation to these amendments, I would comment that we ask a huge amount of our service personnel. We send them to undertake high-threat, high-risk operations in defence of our country and its people. They do their duty in the clear knowledge that they may be injured, maimed or even killed. That is the unique nature of their job and is what sets them apart from the rest of us. The Government believe therefore that it is absolutely right and reasonable to require that in return we ensure that a prosecutor, when coming to a decision to prosecute, must give particular weight to the unique circumstances of overseas operations and the adverse impact that these may have on a service person’s capacity to make sound judgments and on their mental health at the time of an alleged offence. This will be in addition to considering the existing evidential sufficiency and public interest test.
Let me make it clear that this is intended not to excuse bad behaviour by service personnel but to ensure that prosecutors give full recognition to the significant difference in the circumstances surrounding an alleged offence committed on operations overseas as compared, for example, with situations where the alleged criminal conduct occurs in a domestic, civilian setting.
Although differing views to the attitude of the Government have perhaps been expressed in the debate, as far as I could ascertain, contributors acknowledged that the conditions referred to in the Bill could indeed be personal impairments that might attach to Armed Forces personnel in the course of their operations overseas. That is why the prosecutor must consider the presumption against prosecution in Clause 2 and
determine whether the case meets the exceptional threshold. The prosecutor must also, as required by Clause 3, give particular weight to matters that may effectively tip the balance in favour of not prosecuting.
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The noble Baroness, Lady Chakrabarti, asked: what is exceptional? First, we have to look at the environment of overseas operations, which creates a unique background for our Armed Forces. That is the raison d’être for the Bill and the exceptionality is then to be determined by the prosecutor. That is why I suggested earlier that Clauses 1 to 7 are interwoven in the Bill. If you remove one of them, you weaken the rest. I suggest that Clause 3 reflects the filters that are to be applied—the final filter being the consent of the Attorney-General.
There has been a lot of discussion during the passage of the Bill about concerns over the impact on our personnel of repeated scrutiny and the mental burden placed on them by the threat of criminal prosecution occurring long after the events in question, in particular where there is no compelling new evidence to be considered. Significantly, as we saw in the responses to our public consultation in 2019, many service personnel were concerned about the ability of prosecutors and others in the justice system to understand the operational context in which an alleged offence occurred, and to adequately reflect that in determining the public interest. My noble friend Lord Lancaster of Kimbolton described poignantly the sort of environment in which we expect our Armed Forces personnel to operate.
I say to the noble Lord, Lord Dubs, that we fully accept that prosecutors may already take these matters into account, including mental health considerations. However, making them a statutory requirement by putting them into the Bill provides greater certainty and reassurance for our service personnel that the unique context of overseas operations will be given particular and appropriate weight in the prosecutor’s deliberations.
I have also noted the suggestion by some that Clause 3 will grant de facto impunity to individuals who have been accused of committing criminal offences. I wish to repeat that the application of Clause 3, alongside all the other considerations, still leaves the prosecutor with discretion to determine that a case should be prosecuted, even when there is no compelling new evidence. My concern is that these amendments would effectively remove one of the matters to be given particular weight and undermine that reassurance to our service personnel that the operational context and the adverse effect that it can have on them will be taken into account by the prosecutor. That would be an unfortunate message for this Committee to send and, in those circumstances, I urge the noble Baroness, Lady Massey, to withdraw her amendment.