Calling time on lawfare. Jo Morris

Proposals by John Larkin, QC, Northern Ireland’s attorney-general, that all allegations against British soldiers in Northern Ireland should be assessed by a specialist judge before prosecutions are commenced is an eminently sensible compromise.  Public interest is not served by the constant cycle of investigations against retired soldiers over allegations arising from the 1970s.  The appearance of fairness is not created by the release of terrorists under amnesties and the persecution of soldiers who were forced to make swift decisions in pressurised circumstances.  However, a blanket period of limitation is not within our gift.  We must find a middle way.

It is understandable that Johnson wants to protect our troops from dishonourable lawyers like Phil Shiner that bring disgrace upon us all.  The modern soldier faces a near impossible task.  He is bound by service law, the criminal law of England and Wales, the high standards required by members of the armed forces, the law of armed conflict and the domestic law of the state he is in.  In addition, he is increasingly engaged with an enemy that does not wear a uniform, claiming the protection of a civilian by day whilst doing the violence of an insurgent by night.  At home he faces not only a justifiable demand that he is accountable for his misdeeds but also the hostile gaze of those determined to find a ground of complaint from a location where things are warm and safe. 

The Government’s plan to introduce a statute of limitations of ten years upon the prosecution of former service personnel will fail unless it contains a departure for exceptional circumstances.  A blanket restriction would place the UK in breach of international agreements which may lead to the International Criminal Court exercising its jurisdiction towards our troops which is not the point of the exercise.  A qualified presumption against prosecution after a period of time unless there were compelling reason would not offend.

The proposals of Larkin would add a further safeguard.  In fact, it does not involve a substantial departure from the existing law.  Many offences require the consent of the Attorney General before prosecutions can be commenced.  Commonly they are offences that give rise to unique public interest considerations, such as breaches of the Official Secrets Act or offences of juror misconduct.  If any group deserves this additional protection then it is our armed forces.  The passage of time alone should not frustrate a prosecution that has merit but only in an exceptional case would a prosecution be needed after delay.  Deserving cases should meet with a timely prosecution.  Those who have served Queen and country are entitled to some protection from the revival of allegations that they have either defended before or arise years later when evidence is lost and memories are affected.

Jo Morris
This article was published in The Times on 26 March 2020 available here.