TRANSCRIPT OF JONNY DYMOND INTERVIEW WITH DAVID GREEN, VICE-PRESIDENT OF THE LAW SOCIETY, AND JULIAN LEWIS MP, CHAIRMAN OF THE DEFENCE SELECT COMMITTEE

BBC PM Programme – 12 October 2019

Jonny Dymond: Word from the Government today is that a Bill that would have tipped the scales against prosecuting military veterans for alleged offences, committed in the course of duty, will not make it into Monday’s Queen’s Speech. The Bill, which would have affected potential prosecutions for offences in the Iraq and Afghanistan campaigns, would not have been an amnesty as such, but would – it is thought – have included a presumption against prosecution for offences more than ten years old, amongst other things.

The Law Society, which represents solicitors in England and Wales, was consulted by the Government. They expressed a fair number of concerns. David Green is the Law Society’s Vice-President. He is in the studio. Good evening. What was the problem, as you saw it, with time-limiting prosecutions?

David Green: Can I just start with one issue, which is to differentiate between events outside the UK and events within the UK, which includes Northern Ireland.

Mr Dymond: Of course.

Mr Green: And I think there is a degree of confusion about that, because they raise very different issues.

Mr Dymond: And this Bill was not about Northern Ireland; or the suggested Bill – which is now not going to appear – was not about Northern Ireland?

Mr Green: No, the Northern Ireland issue was the subject of a separate consultation with the political parties in Northern Ireland. This one is non-Northern Ireland, outside the UK.

Mr Dymond: Sure. And it had the suggestion that with something that is over ten years old, there would be a presumption against prosecution, and you didn’t like that.

Mr Green: No, I mean, the general rule is that it doesn’t matter how old an offence is, it can still be prosecuted – particularly serious offences. And there is a time-bar to the extent of the quality of the evidence, but there is no time-bar in relation to an aged event.

Mr Dymond: Lots of countries do have statutes of limitations. We only have them with some aspects of civil law, I know. Criminal law doesn’t really have them. Lots of countries have statutes of limitations. They are arbitrary to some degree, aren’t they? They say: here is a limit.

Mr Green: Yes, they are bound to be arbitrary; but this is taking out one portion of the citizenship, whereas those have general application to all citizens. This is one specific band of citizens that are being affected by it – the military.

Mr Dymond: The military, yes – that was an objection as well for you.

Mr Green: Well, it is an objection generally that our law is that it doesn’t matter how old the offence is, or the alleged offence, it can still be prosecuted some point in the future. And that’s really a fundament of our justice process: it doesn’t matter how old it is, you can still prosecute it.

Mr Dymond: So the objection was to the overall effect of someone placing a finger on the scales of justice, because it only affected this rather select group.

Mr Green: Well, no, because the general objection is that if one were to apply it more widely, we would object to that too. It is the concept that time passing means that the alleged offence can no longer be prosecuted. And if we had, for instance, some offence back in the 1950s – some aged offence – that could still be prosecuted now. And that’s the concept of our justice process. This proposes picking out a particular band, without really looking at the wider picture, and that’s why we object to it, because it is core of our justice process.

Mr Dymond: David, thank you very much indeed. David Green from the Law Society. Well, Julian Lewis, the Chair of the Defence Select Committee, is on the line. Good evening, Mr Lewis.

Dr Julian Lewis: Good evening.

Mr Dymond: What do you say to what David Green has said? He said, fundamentally, the problem here – well, two problems – one, selecting a group of people to have a different kind of justice, and, secondly, time-limiting justice in any circumstance?

Dr Lewis: Well, I make two observations on it, which I’m surprised I even have to make. The first observation is that he doesn’t appear to have scrutinised properly what was proposed. He’s been talking as if there were a proposal for an amnesty, which is an absolute bar on prosecution after a certain period of time. That is not what is proposed.

What is proposed is what we call, on the Defence Committee, a ‘QSL’ – a Qualified Statute of Limitations – which is that there is a presumption of non-prosecution after a certain period of time has passed, unless compelling new evidence emerges. He referred to the fact that we can still prosecute something from the 1950s. Why would it not have been prosecuted for the last 60 years? The answer is, presumably, because there was not enough evidence. And if, therefore, we were proposing to prosecute it now, it would be because compelling new evidence had emerged – and therefore it would still be prosecutable. So he is talking about the wrong sort of law, because what he is talking about wasn’t proposed.

The second point is even more absurd: he is talking, airily, as if there is this group – the military – and of course ‘they can’t be given special treatment’ in relation to the rest of society. Well, there is one slight difference there, and that slight difference is that we are talking about matters that happened in action, on military service, and often on the battlefield. And, up until the European Convention on Human Rights was applied to British law – and was then taken by the court and extended way beyond its original remit – we didn’t have this sort of application of civil law to the battlefield. We had the Law of Armed Conflict.

Mr Dymond: Julian, I just want to come on briefly, if we can, to the suggestion that this Bill is going to be dropped: it is not going to make it into the Queen’s Speech, and how you view that? I’m sorry, we are a bit pushed for time.

Dr Lewis: No, I appreciate that. The trouble is: these legal things are a little bit complex.

Mr Dymond: I understand. Your reaction to that.

Dr Lewis: Anyway, what I would say about that is: we are getting contradictory signals. Even if the Bill is not mentioned in the Queen’s Speech, the Government’s spokesman is saying that the Prime Minister has been clear that we need to end the unfair trials of people who served their country, when no new evidence has been produced. And they are saying that they are determined to make progress and legislate on it. So, it’s rather annoying that it is not going to be specifically mentioned in the Queen’s Speech. All I would say is: let’s have a look at the background briefings that come out with that Speech – hopefully, it is still going to be there. It ought to be.

Mr Dymond: Julian Lewis, Chair of the Defence Committee, thank you for your time.