Awards for Valour (Protection) Bill

Julian Lewis Excerpts

Friday 25th November 2016 Commons Chamber

[Philip Davies]

My hon. Friend, who is an expert in these matters, is absolutely right, but we are talking about all the medals covered by the Bill and the definition of a family member. As far as I can see, we do not have such a definition. People who think they are entitled to wear the medals should be told whether they can wear them or whether they would be breaking the law if they did. As things currently stand, people do not have such certainty. We could have the rather ridiculous situation in which someone who should be able to wear a medal does not because of the chilling effect of not being sure about whether they would be breaking the law. Again, that would surely be a terrible unintended consequence of the Bill.

Crucially, the Defence Committee report goes on:

“The term ‘family member’ must however be defined in terms of the proximity of the relations that it is seeking to include in the defence. It is not a legal term of art with a single definition. Acts of Parliament which use the term commonly carry a definition of ‘family’ within them to be used for the purposes of that Act. Mr Johnson suggested in oral evidence that he was minded that this defence should be quite narrow, so that for example a nephew deceitfully wearing medals could not rely on the defence by claiming that they were his uncle’s awards.”

Do we really want to criminalise a nephew who wears his uncle’s medals? Do we want to send him to prison? Clearly, the promoter of the Bill thinks we should. I contend that we should not.

The Defence Committee report goes on to say:

“The inclusion of a defence to ensure that family members representing deceased or incapacitated relations who are recipients of medals is vital, but ‘family member’ must be properly defined to ensure that there is no room for uncertainty or abuse. We suggest that the Bill include a definition of ‘family member’ in order to provide certainty over who will be covered by this category.”

The exemptions cover the reconstruction of historical events and productions. Does that exempt people in fancy dress? If my hon. Friend the Member for Dartford would make the point that they do not intend to deceive, why are there specific exemptions for reconstructions and productions, as there is clearly no intent to deceive in those cases, but no exemption for people in fancy dress?

In one unfortunate scenario, someone could start off wearing a medal legitimately, but it could turn into an offence by accident. Imagine that an actor goes to the pub for a drink after whatever it is they are acting in and someone mistakenly assumes that they are entitled to wear the medal they forgot to remove when they came off set. Unless the actor corrected them—perhaps the more drinks the actor had consumed, the less likely that would be—they would be committing a criminal offence. Although they had not intended to deceive anyone when they went to work that day, the intent to deceive could come later, almost by accident.

I said that I would come back to sentencing. The Bill says:

“Any person guilty of an offence under this section shall be liable, on summary conviction, to a period of imprisonment not exceeding 3 months, or a fine.”

The Defence Committee report states:

“Mr Johnson indicated that he considered that the appropriate maximum penalty was six months imprisonment or a fine of up to £5,000 at level 5 on the standard scale. The rationale behind drafting the penalty in this way was to address three concerns:

First, the potential for a custodial sentence would ensure that there is no need for a separate power of arrest in the Bill. We note here that, since the removal of the concept of an ‘arrestable offence’ by the Serious Organised Crime and Police Act 2005, the need for a separate power of arrest would be unnecessary in any event;

Second, that a level 5 fine on the standard scale would be at a maximum of £5,000. We note here that this upper limit was removed in 2012. Magistrates now have power to issue a fine of any amount for offences where £5,000 was previously the maximum; and,

Third, that this formulation would ensure that it could be dealt with only in a Magistrates Court. A certain way of doing this would be to have this explicitly stated in the Bill—“This offence is triable only summarily”…

The appropriate level of penalty has clearly been considered in some detail by the Bill sponsor. We are broadly satisfied that the boundaries of penalties proposed—a period of imprisonment not exceeding six months or a fine—are appropriate.”

The length of imprisonment has been changed from six months to three months, but it is still too long in my opinion.

I am not sure what sentencing guidelines my hon. Friend the Member for Dartford envisages for the offence. Would the type of medal being worn—or not worn, as the case may be—be a factor? Would the type of incident be a factor: the more people deceived, the more severe the offence? Would it depend on the duration of the deception or the place? Would it be worse at a Remembrance Day parade? All those factors need to be considered when we pass legislation in this House, and none of them appear to have been considered for the purposes of the Bill.

I do not think that this offence should be created in the first place, but if it were, would not the confiscation of the medal be sufficient? I cannot support the criminalisation and imprisonment of Walter Mitty types. We have plenty of eccentrics in this country and some, I dare say, in this House. To criminalise someone for this type of behaviour would be very concerning indeed.

I should say, in passing, that all of us in this House know about the Liberal Democrats claiming credit erroneously for other people’s work. Are we really going to get to the point where we send them to prison for doing so?

[Dr Lewis]

Yes, yes—you’ve just shot your own case down!

[Philip Davies]

I note the enthusiasm of my right hon. Friend for the concept of locking up Lib Dems who claim credit for other people’s work. Are we really going to criminalise people and send them to prison for no more than boasting in the pub?

As I said at the start, we owe enormous gratitude to those who have risked their lives on our behalf. I would stand shoulder to shoulder with them and fight their corner in any way I could. However, the problem the Bill seeks to address seems to be very limited and there are things that can be done, without resorting to the drastic action in the Bill of criminalising and imprisoning people, to improve the situation.

The Defence Committee report states:

“We recommend that the Ministry of Defence should set out the practicalities of creating an online, publicly-searchable database to record those who are rightful recipients of gallantry and distinguished conduct awards, along similar lines to the database instituted by the US Department of Defense. This would allow authoritative verification of claims to entitlement and act as a deterrent to military imposters, whose deceptions would be liable to swift and accurate exposure.”

I absolutely agree. Acting as a “deterrent to military imposters” and making their deceptions

“liable to swift and accurate exposure”

is actually what the Bill seeks to do. That is what we should be seeking to do; not criminalising and imprisoning people.

There is no reason why we cannot have such a database. As my hon. Friend the Member for Beckenham mentioned during the inquiry:

“I totally agree with the idea of having an online database. There are such things now, but it is very complicated to get answers on gallantry medals and things. If nothing else, let’s encourage the Government to put up a database, so that people can check these things very quickly. That would be very easy to do, actually, for all gallantry awards, including ‘mentioned in dispatches’.”

The point made by the hon. Member for Sedgefield (Phil Wilson) during the inquiry was spot on and echoed something I had been thinking:

“Do you think that, considering the disgust people feel at this kind of action, naming and shaming someone is sufficient, rather than taking these people to court?”

I agree with much of the reply given by my hon. Friend the Member for Dartford, apart from the end:

“That can sometimes be an effective remedy. I think you could say that for a whole range of different criminal offences. We know that certain people suffer more because of the naming and shaming they have had to endure, rather than somebody who has not in other circumstances. Yes, that may be an appropriate way of dealing with instances of this kind. It may still be appropriate for someone to have a quiet word with someone. But that is also the case for a whole range of criminal offences and I do not think that, because that may be an effective remedy, that should prevent this becoming law.”

For that reason and for all the other reasons I have mentioned, we should prevent the Bill from becoming law. It would be a terrible unintended consequence if those who had fought in wars were caught up in this legislation, alongside vulnerable people with mental health issues. I have set out how veterans and people with mental health issues could be prosecuted under this legislation. Anyone who impersonates a serviceman and tries to gain financially can already be prosecuted. That is where I believe we should leave it.

We have fought various battles to protect our much-cherished freedoms. As I said earlier, and as the US Supreme Court has found, those include freedoms involving something distasteful. Criminalising people as this Bill seeks to do helps to undermine that precious freedom. I am afraid that that is why I cannot support the Bill today.

[Dr Julian Lewis (New Forest East) (Con)]

During the break for the urgent question, I took the liberty of asking my hon. Friend the Member for Shipley (Philip Davies) whether I was right in assuming that his default position on issues of this sort was as follows: “When it’s not necessary to legislate, it’s necessary not to legislate.” He confirmed then, and he is nodding now, that that is indeed his position. It is a position that, in most cases, I tend to subscribe to myself.

My hon. Friend has done an amazing job of making the case for why he should be on the Bill Committee once the Bill has got—as I hope it will—its Second Reading. He is a one-man House of Lords—a revising Chamber in a single cranium—and points the ruthless spotlight of logic at many well-intentioned, as he puts it, initiatives that have not always been thought through as fully as they should have been.

In making his points today, some of which have been very strong, my hon. Friend is nevertheless in danger of throwing out the baby with the bathwater; there is a very considerable baby in the Bill and it deserves to thrive. He has conjured up scenarios of all sorts of people who are suffering from mental illness languishing inappropriately in prison cells. That is very much a worst case scenario, and is not borne out by experience. As we know, until the legislation was changed a score or so years ago, there were no cases—certainly that I am aware of—of any mentally ill people finding themselves in prison cells.

[Philip Davies]

Lots of people in this House would say that many people in prison who have been convicted of criminal offences have mental health problems. I am therefore not entirely sure on what basis my right hon. Friend thinks that scenario would be impossible with this proposed offence.

[Dr Lewis]

I will have to look at Hansard to see the actual words I used, but if I did not insert the words “for this type of offence”, I should have, because I am not aware of any cases on the record—and I am sure that, if there had been such cases, my hon. Friend would have unearthed them in his exhaustive researches—of people languishing in jail as a result of fraudulently claiming to have been awarded gallantry medals that they had not genuinely received.

When looking at the prospective penalties for committing an offence such as would be created once again—as it existed in the past—by the passage of the Bill, we have to apply a modicum of common sense. We have to recognise that there would be very few prosecutions at all, because it is highly probable that most people would be deterred, and I am sure that the vast majority of the minority who would not would end up facing nothing more than a fine. The background possibility of a prison sentence of a few weeks would, as I am sure my hon. Friend the Member for Dartford (Gareth Johnson) will confirm, be there only as a backstop for the most persistent and egregious cases where all else had failed in stopping someone committing this act of abuse—that is what it is for the families of people who lost their lives serving this country and for living former and current servicemen and women who have been genuinely decorated.

My hon. Friend the Member for Shipley was absolutely right to pick up the United States Supreme Court’s striking down the legislation that he mentioned. That Supreme Court is well known, internationally, for its absolutist stance on freedom of speech—so much so that it is possible to blackguard, libel and defame people in the United States in the name of free speech to a degree that is not possible in this country, thank goodness. Nevertheless, although the United States has taken that very strict interpretation of free speech as being the right to lie and deceive about medals for valour that have not been awarded, the Defence Committee’s report noted that that has not prevented several state legislatures from putting into law offences similar to that in the Bill.

We have to ask ourselves whether there were any obvious disadvantages of the law as it worked in practice when it existed before. My answer to that is no. We also have to ask whether there are likely to be any new ill effects as a result of reintroducing something very similar to the position that obtained in the past. My answer is still likely to be no. If our concern is that mentally ill people might in future be caught by criminal law as a result of their wearing medals to which they are not entitled and so making false claims of valour—if that is the reason for our not having a criminal sanction against such misbehaviour—we should think about what would happen if that reasoning were to be applied more generally to criminal law; I doubt if much criminal law would then remain on the statute book. The fact is that criminal law exists, mentally ill people are out there, and, from time to time, mentally ill people break the law. That is no reason for not having the law there for them to break or observe, as the case may be. That is to do with mitigation of circumstances; if it is found that someone has broken the law, it then becomes relevant to take their state of mind into account.

I do not agree that every factor in a case of the inappropriate wearing of medals not awarded to the people wearing them has to be written into the Bill. For example, the idea that anyone would prosecute a nephew for wearing his uncle’s medals in an appropriate setting is absolutely preposterous, and I do not believe that the Bill’s intention would be misconstrued in such a way that any such case would ever be brought.

I return now to the conclusions and recommendations of the Defence Committee’s report, which my hon. Friend the Member for Shipley put forward in a somewhat selective way in his massively entertaining account of the report. I will pick out just a few factors. We did not agree with the justifications provided by the Ministry of Defence for repealing the offences relating to the protection of decorations without replacing them. If the offences in the Army Act 1955 were unsuitable for direct transposition into new legislation, the Armed Forces Act 2006 should have included new, more workable offences that were well scoped and incorporated appropriate exceptions.

We do not believe that the main problem is the matter of financial or other tangible gain. It is the devaluing of the respect that people are entitled to have because of acts of bravery in their service careers. My hon. Friend the Member for Shipley rightly picked up on the exchange that took place during our consideration of the Bill about whether it was appropriate to include claims about having been awarded medals that are made without actually wearing the medals. That is why I put a query to my hon. Friend the Member for Dartford during the course of the hearing we held with him on his Bill.

At that stage, we did not have the advantage of having the final version of the Bill before us—indeed, it was not available even at the stage when we finalised our report, although it is of course before the House now. But that is what the Committee and Report stages should be all about. The Bill should be amended to deal with any practical points of concern.

[Philip Davies]

Do I take it, then, from what my right hon. Friend says—it would be useful if he could clarify this—that as the Bill stands it applies not just to people who wear medals but those who present themselves as being entitled to do so? If an amendment were tabled to remove that from the Bill, would he support it?

[Dr Lewis]

I have not heard the case argued from both sides because we have only had that brief exchange in Committee. However, my hon. Friend deduces correctly from my remarks that I am unhappy about that particular provision, and that I expect the Bill would be improved by its removal. The concern relates to people who strut around wearing decorations they have not been awarded. They do so not primarily for financial gain—as has been repeatedly pointed out, that is already capable of remedy in law—but because they are fraudulently posing as somebody who has done things they have not done; they are wearing awards they have not earned.

My hon. Friend made the distinction between impersonating a veteran who had been awarded a medal and impersonating a police officer. I think he slightly missed the point of the Committee’s conclusion. We were not saying there was any real comparison between the consequences of those two acts of deception; we were talking only about the practical question of whether it can, in a realistic and sensible way, be catered for in law. He read the actual sentence out rather quickly; I shall do so rather more slowly:

“We also disagree that offences involving an intention to deceive which are not related to fraud may raise practical difficulties on questions of proof.”

All we were saying by drawing the comparison with the offence of impersonating a police officer is that the practical difficulties in each case would be the same and that there are ways of coping with the practical difficulties of showing what is being done wrong in each case, even though, of course, the consequences of the two different acts are vastly dissimilar.

We have heard scepticism on how widely the practice is carried out. The report heard evidence from the Naval Families Federation showing that a very considerable number of its members, when surveyed, thought this was a real problem. It conducted a brief survey among its members, receiving 1,111 responses over four days. Some 64% of respondents said they had personally encountered individuals wearing medals or insignia that had been awarded to someone else, with 16% saying they were not sure. When asked to detail the specific circumstances, however—this is what matters, because there are plenty of perfectly legitimate cases of wearing medals not awarded to the person concerned—29% of respondents said that the individual concerned was impersonating a UK armed forces veteran, while another 11% identified the individual as impersonating a serving member of the armed forces. That suggests something that happens on a somewhat larger scale than has been suggested by some of the contributors to the debate.

Another problem, which I urge my hon. Friend the Member for Shipley to consider seriously, is that when the law fails to deal with unacceptable behaviour people tend to take matters into their own hands. This happens to such an extent that we now have, as we heard earlier, groups of Walter Mitty hunters challenging people over the decorations they display. That suggests sufficient concern on such a scale that people feel it appropriate, even though it is not necessarily appropriate, to set up groups to go around challenging people on whether they have earned the medals they display.

I have direct experience of this situation. A couple of years ago, I was at a Veterans’ Day event in my constituency with my partner’s father. My partner’s father is Mr Frank Souness, who is slightly unusual in that he has a post-war Distinguished Flying Cross, a decoration that has not been awarded to a very large number of people since the end of the second world war. He was approached by one of these people and asked to justify the fact he had a chest full of medals, headed up by the Distinguished Flying Cross. For the record, if you will indulge me, Madam Deputy Speaker, I shall read a short report in the Shrewsbury Advertiser from 25 May 1955 entitled, “Courage over the Jungle”:

“Flying Officer Francis Scott Souness who it was announced in the ‘London Gazette’ last week has been awarded the Distinguished Flying Cross for his services in the operations in Malaya between June 1 and November 30 of last year. Aged 24 and a native of Galashiels, Flying Officer Souness is at present stationed at R.A.F. Shawbury…The citation reads—‘Since joining No. 110 Squadron in May, 1952 he has completed 148 operational sorties in Malaya and is a navigator who has shown meticulous care and untiring energy while locating dropping zones deep in the jungle. In flights over difficult terrain, often uninhabited, and often in adverse weather, his determination and courage have often exceeded the call of duty. Malayan operations depend largely for success on accurate navigation and map reading and, by his wealth of experience, calm efficiency, courage and high sense of duty Flying Officer Souness has inspired the whole squadron.’”

I know Frank well—he is 86 now and was a little younger then—and he is a doughty individual. It did not faze him that someone challenged him—not aggressively, but pointedly—as to whether he was entitled to wear the Distinguished Flying Cross. I think that that is a bit of a pity, actually. I do not think it should have happened. It suggests that there is a problem out there with the perception of people wearing medals to which they are not entitled. It is their selfishness that can result in genuine heroes being challenged inappropriately. My hon. Friend the Member for Dartford was quite right to point out the dangers of trust breaking down in this situation.

I take what I hope is a measured view. I entirely accept that my hon. Friend the Member for Shipley is in a position to make improvements to the Bill in Committee. I believe my hon. Friend the Member for Dartford is entirely right to have introduced the Bill. It is capable of improvement. If the House wants to see the Bill improve, it should be given its Second Reading today.

--- Later in debate ---

[Harriett Baldwin]

The Secretary of State has been thoroughly convinced by the excellent case put forward by my hon. Friend the Member for Dartford, by the power of his argument in the Chamber and by the way he has worked so constructively to address our previous concerns in his proposed legislation.

My hon. Friend the Member for Shipley questioned the extent of the problem in this country. I am grateful to the Defence Committee for producing its extremely thorough report, which acknowledges that the precise level of the problem is difficult to determine. There is clearly a greater awareness of it as an issue, perhaps because of the greater visibility afforded by social media and the appearance of groups dedicated to exposing these Walter Mittys. It is for that reason, and those that I have previously outlined, that the Government are now happy to offer support to the Bill.

The Committee’s report was ably summarised by my right hon. Friend the Member for New Forest East, who chairs the Committee, and it raised issues for the Government to consider beyond those immediately addressed by the Bill—in particular, the question of establishing a searchable database of holders of awards. Details of individual bravery or gallantry awards are published in the London Gazette—indeed, that is the origin of the term “gazetted” in relation to medals. However, the creation of a searchable database of holders would raise concerns about personal data and individual security. There is also the matter of who would be responsible for it and who would maintain it. It would be a long-term task for someone. When it comes to the various types and levels of campaign awards, a different issue arises—one of scale. For example, the Operational Service Medal for Afghanistan alone was issued to 150,000 recipients.

[Dr Julian Lewis]

I am grateful to the Minister for her support for the Bill. I am always cautious about databases for ex-service personnel. In this particular case, however, provided that the search engine was only able to accept the entry of a name that was already known to the person searching for any awards that that person had received, I do not see that that could create a security problem in the way that including details of ex-servicemen on censuses might do.