My Lords, I will start with a quote on how the court approaches the extinction of the limitation period in any category of case:
“It is for the court to examine in the circumstances of each case all the relevant factors and then decide whether it is equitable to provide for a longer period. It may be necessary in the circumstances of a particular case to look at objective and subjective factors; proportionality will generally be taken into account. It is not in my view appropriate to say that one particular factor has as a matter of general approach a greater weight than others. The court should look at the matter broadly and attach such weight as is appropriate in each given case.”
I am quoting from the judgment of the noble and learned Lord, Lord Thomas of Cwmgiedd, in the case of Dunn v Parole Board in 2008.
The standard limitation period is three years for tortious claims for personal injury and wrongful death, and one year for claims under the Human Rights Act. The limitation periods can be extended by an application to the court on the principles I have quoted.
This Bill introduces factors in Clause 8(1)(b) and in paragraph 1(4) of Schedule 1 and—in relation to Human Rights Act claims—in Clause 11(2), which inserts new Section 7A into the Human Rights Act. The purpose of introducing these additional factors that a court must take into account in claims arising from overseas operations is to introduce a degree of bias into the equation. The Bill requires that the court pay “particular regard” to the impact of the operational context on the ability of members of HM Forces to fully or accurately recall events and the degree of
“dependence on the memory of such individuals”
for the cogency of the evidence, as well as the impact on the mental health of Her Majesty’s Forces witnesses caused by the proceedings.
Over the past 20 years, in the field of criminal law and procedure, the victim has been put at the forefront. I think it was the noble and learned Baroness, Lady Scotland, who emphasised that, in particular when she was Attorney-General. Everything has been done to try to make it easy for victims in criminal courts to complain in the first place—not least in cases involving sexual offences. Special measures have been introduced to that end.
In dealing with civil claims by victims, the thrust of this Bill is entirely to reverse that position. The concentration is now on fairness to the alleged perpetrators of the acts from which the victims suffered and which are the foundation of their claims. Special weight must be given to a declaration by a serving soldier or veteran of the possibility that his memory will be affected and his comfort zone invaded by the stresses and strains of giving evidence about things he would prefer to forget. This is so even if the victim happens to be a fellow service man or woman. It is not even as
if this hurdle is placed on people because they are foreigners whose country we have invaded in order to save them from the particular regime under which they are suffering. It would of course be disgraceful if such a distinction were ever made between service victims and foreign victims. So what is the rationale for these provisions which introduce factors to alter the balance of which the noble and learned Lord, Lord Thomas, spoke, and weigh down in favour of the MoD?
On Tuesday, I spoke about vexatious claims. I pointed out that I witnessed an Iraqi woman withdrawing her claims of sexual assault and admitting in court that they were false. There were vexatious claims, stirred up by English lawyers for their own gain. Our legal system is robust and it dealt with the claims by striking them out and by disciplinary actions against the lawyers concerned which effectively removed them from circulation.
But not every claim brought by a victim is vexatious. We have to face the fact that some are legitimate. As I said on Tuesday, my Written Questions to the Minister on 2 June 2020 revealed that, since 2003, 1,330 claims arising from the treatment of foreign victims by British personnel had been accepted and £32 million paid in compensation. The Answer to my Questions also revealed that not a single serviceman, however responsible he might have been for the victim’s claim, has had to pay damages or compensation out of his own resources. The MoD has covered them all—and it claims that it does not settle claims which it does not believe to be meritorious.
If we look elsewhere for confirmation, in its final report published on 9 December 2020 entitled Situation in Iraq/UK, the prosecutor for the International Criminal Court concluded that the information available provides
“a reasonable basis to believe that … members of UK armed forces in Iraq committed the war crime of wilful killing/murder … at a minimum, against seven persons in their custody. The information available provides a reasonable basis to believe that … members of UK armed forces committed the war crime of torture and inhuman/cruel treatment … and the war crime of outrages upon personal dignity …against at least 54 persons in their custody.”
The prosecutor also found that there was a reasonable basis to believe that there were seven victims of sexual violence. It is impossible, regrettable as it may be, to dismiss the claims brought by victims as being vexatious. As a civilised country, we must face up to that fact and ensure as far as we can that the disciplines are in place which prevent these things happening.
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If it is accepted that these are proper claims, is it an answer to a victim that his case cannot go forward because the perpetrator from our military has lost his memory or because of the stresses of service, or that whatever the victim may have suffered, that pales into insignificance in the light of the stress of giving evidence in a witness box and recalling past events? Every day in every court in this country, people suffer the stress of the witness box, as I have myself on a number of occasions. Would we ever say to a gang-raped 13 year- old that her case could not go forward because her assailants have lost their memory or that the strain of them giving evidence and recalling what they have done would be too much for them?
That is a general introduction to the topic which arises in the three groups that we will be considering, and I promise that I will not repeat it in relation to the other groups. In this group, I am concerned with the victim. In Clause 11, the court’s general discretion to extend time in Human Rights Act proceedings is to be fettered to require the court or tribunal to have “particular regard to”, first, the ability of the alleged perpetrator to remember or to “record” the events and, secondly,
“the likely impact of the proceedings on the mental health of any witness … who is a member of Her Majesty’s forces.”
Our amendment would add a third factor: namely, the importance of the proceedings in securing the rights of the victim and thus to achieve justice. If the Bill needs to spell out in statutory form the factors that the judge should pay particular regard to, contrary to the general approach of the noble and learned Lord, Lord Thomas, which I have quoted, our addition would add the duty to pay particular regard to the rights of the victim. Without our amendment, the judge’s discretion is deliberately skewed by this Bill in favour of the Ministry of Defence.
The rest of our amendments in the group introduce the same third factor: the rights of the victim in all the other contexts and jurisdictions in Scotland and Northern Ireland in which this bias in favour of the MoD appears in the Bill. I beg to move.