Hilary Meredith outlines proposals for new legislation to protect our armed forces from prosecution in the line of duty

Hilary Meredith has outlined proposals for new legislation to protect service personnel and veterans from prosecution in the line of duty.
Hilary, Chair of Hilary Meredith Solicitors Ltd and Visiting Professor of Law and Veterans’ Affairs at the University of Chester, has been working with a range of service personnel, veterans, charities, academics and politicians in recent months.
After more than fifty separate meetings with interested parties, Hilary has now drafted an outline of how the new legislation would work in order for it to be taken forward for further consultation by the Government or through a Private Members’ Bill in the Commons.
Commenting on her proposals, Hilary Meredith said:
“In recent times military service personnel have been exposed to individual prosecution like never before – in particular historic cases from Iraq, Afghanistan and Northern Ireland. Whilst each set of circumstances and reasons behind these potential prosecutions differ, changes to the law are necessary in order to encompass all circumstances.
“New legislation is necessary in order to provide some form of protection for our serving soldiers and veterans.   It is not intended to act as defence to those who act outside of the line of duty on a violent frolic of their own.”

Hilary is backing a Bill by Conservative MP, Richard Benyon – the Armed Forces (Statute of Limitations) Bill –  calling for a statute of limitations on prosecuting British Soldiers involved in past conflicts.  She believes cases against British troops for their conduct during combat should only be brought within a 10-year time limit.

In addition to a statute of limitations, Hilary says service personnel and veterans need further legislative protection. She is also calling for combat immunity to be enshrined into criminal law as a partial defence to prosecution and for the MoD to be stripped of its historic immunity from prosecution when personnel are killed during training as a result of a serious failing in its duty of care through a reckless disregard for life.

She continued:

“Hundreds of military personnel are injured every year because the Ministry of Defence negligently fails to follow its own safety rules.
“However, the MoD is exempt from criminal prosecution for serious breaches of the rules through Crown immunity.
“We have seen cases where Judges have ruled that service personnel are being made scapegoats by the Army for deaths in training exercises.  As the Army is immune from prosecution, individual soldiers have stood trial in a criminal or military court instead of the MoD taking corporate responsibility.”

Continued Hilary:

“The Beyond Endurance Inquiry, at which I gave evidence, was set up after the deaths of three army reservists during a training exercise on Brecon Beacons.  It recommended that the MoD should be stripped of its immunity from prosecution when service personnel are killed during training as a result of a serious failing in its duty of care.  In its response, the MoD rejected this proposal.

“In hiding behind crown immunity, the MoD is defying the will of a Parliamentary Inquiry and flying in the face of public opinion.

“If the MoD will not accept the recommendations of a Parliamentary Inquiry then legislation is the only way forward.”

Explaining why she believes combat immunity should be enshrined into criminal law as a partial defence to prosecution, Hilary said:

“The principle of Combat Immunity has been confirmed in domestic law by the cases of Mulcahy –v- MoD [1996], Multiple Claimants v Ministry of Defence [2003] and, more recently, Smith and Others v the Ministry of Defence [2013] , UKSC 41 in that that there is no common law liability for negligence in respect of acts or omissions on the part of those who are actually engaged in armed combat where, in the heat of the battle, thinking is impaired.
“This is an eminently sensible doctrine and I believe is should be enshrined in criminal law.
“The obvious example is the Sergeant Blackman case where, in the aftermath of battle, he breached the rules of engagement.
“Combat immunity is not an escape from prosecution but a partial defence. What occurred was wrong but Blackman’s charge could have been reduced under a partial defence of Combat Immunity to manslaughter from the outset.
“If the doctrine is applied retrospectively – and it should be – those who served in Northern Ireland, Iraq and Afghanistan would be offered some protection when prosecuted in the line of duty.
Hilary Meredith has long championed the rights of service personnel and veterans.  She has appeared at a number of Parliamentary Inquiries and campaigned strongly for the closure of the Iraq Historic Allegations Team (IHAT).
Hilary Meredith’s Proposals
The Protection of Members of our Armed Forces from Prosecution in the Line of Duty
Statute of limitations on prosecuting British Soldiers involved in past conflicts.
Combat immunity to be enshrined into criminal law as a partial defence to prosecution.
MoD to be stripped of its historic immunity from prosecution when personnel are killed during training as a result of a serious failing in its duty of care through a reckless disregard for life.