Guidance

Overseas Operations (Service Personnel and Veterans) Act 2021: Guidance (Updated 2 July 2021)

Updated 6 July 2021

The Overseas Operations (Service Personnel and Veterans) Act 2021 (“the Act”) received Royal Assent on 29 April 2021 and its substantive provisions came into force on 30 June 2021. The Act introduces measures which require that the uniquely challenging context of overseas military operations, and the exceptional demands and stresses to which Her Majesty’s forces are subject on such operations, are taken into account in legal proceedings arising from historical overseas operations.

Measures have been introduced in two parts:

• Part 1 which deals with criminal allegations, and
• Part 2, which deals with civil claims

Part 1 - Criminal allegations

The Act provides stronger protections for service personnel and veterans facing the threat of legal proceedings in relation to events which occurred on historical overseas operations. It does so by introducing three measures which will apply once five years have elapsed from the date of an alleged offence committed by current or former Armed Forces personnel on operations outside the UK (as defined in the Act). These are:

• a presumption that it is to be exceptional for a prosecutor to determine that a Service person or veteran should be prosecuted for alleged offences on operations outside the UK

• a requirement that prosecutors, in deciding whether or not to prosecute, give particular weight to certain matters. These are firstly, the adverse impact of overseas operations on a Service person, including on their mental health; and, secondly, in cases where there has already been a previous investigation and no compelling new evidence has become available, the public interest in cases coming to a timely conclusion; and

• the requirement that consent from the relevant Law Officer be obtained before proceedings can be instituted. In England and Wales, this will be from the Attorney General. In deciding whether to grant consent, the Attorney General will act independently of government, applying the well-established prosecution principles of evidential sufficiency and public interest.

These measures do not apply to allegations of sexual offences, torture, crimes against humanity, genocide, and war crimes. Nor do they apply to alleged offences committed by Service personnel against other members of the armed forces, or against crown servants or Defence contractors.

Part 2 – Civil claims

The Act provides greater legal certainty, and greater certainty to service personnel and veterans, that they will not be called upon many years after operations have ended to give evidence about potentially traumatic events relevant to a claim. The measures in Part 2 will also help reduce criminal investigations and re-investigations arising from late civil claims.

Part 2 of the Act requires the courts to take into account three additional factors when considering whether to extend the three-year primary limitation period in respect of civil claims for personal injury and/or death, and the one-year primary limitation period under the Human Rights Act 1998 (HRA), for claims relating to overseas operations.

Those additional factors are:

• the likely impact of the operational context on the ability of members of Her Majesty’s forces to remember relevant events or actions fully or accurately

• the extent of dependence on the memories of members of Her Majesty’s forces, taking into account the effect of the operational context on their ability to record, or to retain records of, relevant events or actions; and

• the likely impact of the legal action on the mental health of any witness or potential witness who is a member of Her Majesty’s forces

In addition, such claims are now subject to an absolute limitation period beyond which judges will not be able to use their discretion to allow cases to be brought. From 30 June 2021:

a. Civil claims for personal injury must be brought within six years of the date of incident, or within six years of the date of knowledge of the incident (whichever is later).

b. Civil claims for death must be brought within six years of the date of death, or within six years of the date of knowledge of the person for whose benefit the claim has been brought (whichever is later).

c. HRA claims must be brought within six years of the date of incident, or within 12 months of the date of knowledge of the incident (whichever is later).

These provisions apply across the whole of the United Kingdom, and to claims that are brought based on foreign law.

The provisions in Part 2 apply in the same way to all claimants bringing claims connected with overseas operations against the Ministry of Defence, whether they are military personnel, civil servants, contractors or local nationals. Service personnel and veterans can continue to access the Armed Forces Compensation Scheme, which has a seven-year time limit for bringing claims.

Overseas operations in the context of the Act are defined as any operations outside the British Islands, including peacekeeping operations and operations for dealing with terrorism, civil unrest or serious public order, in the course of which members of HM Forces come under attack or face the threat of attack or violent resistance.

A claimant’s date of knowledge is the date on which they first had knowledge that their injury was significant and attributable to a negligent act or omission by an identifiable defendant.

The Act will still allow allegations of criminal offences to be prosecuted, where appropriate.

Further detail as regards the Armed Forces Compensation Scheme, including how to make a claim, are available at the Armed Forces Compensation Scheme (AFCS) website.

Details of the legal, pastoral and mental health support that is available to Service personnel and veterans subject to legal proceedings arising from historical overseas operations, can be found at the Army Operational Legacy Branch website. This link also provides information for members and veterans of the Royal Navy and Royal Air Force.

If you require legal advice you should go to an independent adviser.