Awards for Valour (Protection) Bill

Simon Hoare Excerpts

Friday 25th November 2016 Commons Chamber

[Gareth Johnson]

My hon. Friend touches on an interesting issue. I have discovered that the medal system is incredibly complex. My Bill would deal only with people who are intending to deceive others—people who are being fraudulent in what they are portraying about themselves. If people have legitimately earned those medals, they will not be caught by the Bill’s provisions.

[Simon Hoare (North Dorset) (Con)]

I support the Bill, but could my hon. Friend provide a comment or an assurance—this may be an issue that will need to be dealt with in Committee if the Bill progresses—about those who have mental health difficulties and problems, who are not being malicious but just out of ill health find themselves often wearing a medal to which they are not entitled? We should deal with people in that category who have no maliciousness in their action in a particularly sensitive and understanding way.

[Gareth Johnson]

My hon. Friend makes an important point. The Bill is not intended to criminalise people who have severe mental health problems. The law, and particularly the criminal law, is used to dealing with this situation. I shall come on to the issue in more detail later in my speech, but the Bill is not an attempt to criminalise people who do not have the mental capacity to form the necessary intent to commit the offence. This is a specific intent offence, so someone who is unable to create that intent in their own mind will not be caught by the provisions. There is also an overarching provision that no criminal proceedings would follow unless it were in the public interest for that to happen. That applies in all elements of the criminal law, and it is often used with respect to cases involving people mentioned by my hon. Friend.

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[Philip Davies (Shipley) (Con)]

I commend my hon. Friend the Member for Dartford (Gareth Johnson) on bringing forward this Bill. I am afraid I cannot be as enthusiastic about it as him or my hon. Friend the Member for South Thanet (Craig Mackinlay). It seems to me to be in line with the tradition of private Member’s Bills, which usually have two things in common. The first is a worthy sentiment; almost every private Member’s Bill that comes before the House on a Friday has behind it a worthy sentiment and I do not think anyone can doubt the worthiness of this sentiment. The other thing they usually have is an element, great or slight, of gesture politics, and the Bill falls into that category as well.

I want to be clear from the start that the idea behind the Bill is admirable; war veterans deserve our utmost respect, appreciation and support—I hope that goes without saying. I hope it also goes without saying, but I want to be crystal clear about this as well, that seeking to help them, given all they have done and sacrificed for us, should be an absolute priority. But unfortunately the Bill is neither necessary nor helpful, and I am concerned it will disproportionately affect people with mental health issues and even veterans themselves, which would be a very unfortunate unintended consequence of what is a laudable aim.

I will come on to the Defence Committee’s report on the Bill a bit later, but I want to mention the title now as it is highly relevant: “Exposing Walter Mitty: The Awards for Valour (Protection) Bill”. Unfortunately, exposing Walter Mitty is not all the Bill would do; it would criminalise Walter Mitty, and he could face three months in prison.

The situation astounds me. I stand here week after week—as you will have heard, Mr Speaker, far too many times for your own good—arguing that we should send more people to prison: people who have perhaps committed burglaries, robberies and other such crimes who get community sentence after community sentence and never get sent to prison. Everyone always tells me, “We send far too many people to prison. It’s absolutely terrible; we should send fewer to prison.” But here we are trying to send people to prison for some boastful exaggeration, and everybody in the House says, “Absolutely marvellous. Yes, of course, we should send all these people to prison, never mind the robbers, burglars and all the others never sent to prison. Let’s put all these people in prison; let’s make this an imprisonable offence.” I am astounded by this change in Members’ attitudes.

[Simon Hoare]

But does that not underscore the seriousness and sensitivity of the issue our hon. Friend the Member for Dartford (Gareth Johnson) is trying to address in the Bill, and explain why so many of us support it? We are dealing here with a special category of people who, in many instances, have given their lives to protect and preserve all we hold decent in this country, and therefore to lump them in with victims of burglary and the like—important though they are—is to compare apples with oranges.

[Philip Davies]

I am surprised that my hon. Friend seems to think this is more serious than people committing a burglary or a robbery. We are going to have to agree to disagree on that point, and I do not think many people would agree with him. But if that is the case, we must then ask why the punishment is only three months in prison. If this is so serious and one of the most terrible crimes anyone could possibly commit, why are we not talking about 10 years in prison, or eight years, perhaps? Why only three months in prison for such a heinous crime? Hon. Members cannot have it both ways: they cannot say it is the most obnoxious crime ever and then say, “Actually, we only want three months in prison as a maximum punishment.” People will have to decide whether this is a serious offence or not.

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[Philip Davies]

I am coming on to the point that my right hon. Friend has just raised. I want to praise the Defence Committee, which did a brilliant job in looking at this matter. I shall give the Committee much praise throughout my speech and there are certain points in his report that I want to draw the House’s attention to, including the fact that my hon. Friend the Member for Dartford said this to the Committee’s inquiry:

“We have had a couple of instances of people who have, in a rather Walter Mitty style, pretended they have received honours when that is not the case. I don’t think it is untypical of a constituency to have a couple of people who have behaved in that way. My understanding from the media is that there are hundreds of people who have been behaving in the manner which the Bill seeks to address.”

The Royal British Legion stated in its written evidence to the Defence Committee that

“in the Legion’s own experience, instances of so-called ‘Walter Mittys’ appear to be rare. Indeed, having spoken with colleagues in the Legion’s welfare department, whilst the Legion has previously been approached for crisis support by individuals purporting to have served in Her Majesty’s Armed Forces, but were found to have no valid Service number, only a handful of such instances can be recalled. Nationally, there are no reliable statistics to reveal the true scale of the problem, although the media will from time to time expose individuals who have been caught impersonating a member of the Armed Forces.”

The written evidence to the Select Committee from the Royal Air Force Families Federation stated, when asked whether the deceitful wearing of medals and decorations was widespread and a growing problem:

“We have no evidence either way but instinctively we would say it is not widespread…Whether or not it is a growing problem is hard to judge—any perceived increase may simply be down to wider exposure of incidents via social media. On the other hand, public awareness and the extensive media coverage of recent campaigns…may ‘encourage’ some individuals to claim to have been awarded medals to which they are not entitled.”

So it seems that this is not as big an issue as my hon. Friend the Member for Dartford would have us believe.

[Simon Hoare]

If I understand my hon. Friend correctly, he is taking us down a particularly dangerous path in saying that something should be made illegal only if there is a trigger quantum that makes such legislation necessary. The House could easily make something illegal for which there was evidence of only one occurrence. That would not make it any the less heinous, simply because there had been only one occurrence.

[Philip Davies]

The problem is that my hon. Friend the Member for Dartford said that this was a growing problem. I did not notice my hon. Friend the Member for North Dorset (Simon Hoare) intervening on him to say that it did not matter whether it was a growing problem or not. People are making the case that we need to pass this Bill because this is a growing problem, but there is no evidence for that. As I say, my hon. Friend the Member for North Dorset did not make his perfectly valid point to my hon. Friend the Member for Dartford when he was making his case for the Bill.

Looking at the position taken by past Governments, it is interesting also to consider the historical context of this matter. It was an offence under the Army Act 1955 for people to wear medals and decorations that they had not been awarded if they were used in such a way as to be “calculated to deceive”. That changed as a result of the Armed Forces Act 2006, which repealed the Army Act 1955 and the Air Force Act 1955, in which the offence had originally been specified. The Defence Committee inquiry asked the Ministry of Defence why section 197 of each of those Acts had been repealed and not replaced. It asked for the rationale behind that decision. The MOD’s response was:

“Section 197(1) created three separate offences. They included two offences of wearing any decoration, badge, wound stripe or emblem authorised for wear by the Sovereign, or anything closely resembling them ‘without authority’. It was not clear who could give the necessary permission. The need for authority in all cases suggested that none of these could be worn even in a theatrical performance, film, re-enactment or fancy dress without permission. Nor was it clear whether it applied only to current badges, stripes and emblems or also precluded…the wearing of historic ones. Requiring specific authority for such events was considered to be excessive, and indeed was no longer insisted on. The third offence was of falsely representing entitlement to wear such badges and emblems. Section 197 would also have required considerable amendment.”

The MOD went on to say:

“These provisions in the 1955 Acts were not included in the Armed Forces Act 2006, not only because of the inconvenience of the need for ‘authority’ to wear them, but also because it was considered that the important element of the offences was to prevent people from making financial or other gain dishonestly by wearing uniform, medals or by representing themselves to in the Armed Forces or entitled to a medal. It was decided that this was more clearly and comprehensively dealt with by the general offence of fraud under the Fraud Act 2006. That offence also carries a more appropriate sentence of up to 10 years’ imprisonment on trial before the Crown Court. It was also considered that an offence based on an intent to deceive which did not involve fraud (for example, where there was no attempt to make a financial or property gain, or cause someone loss) was likely in practice to cause difficult questions of proof.”

That is perfectly relevant to this debate.

As I understand it from my hon. Friend the Member for South Thanet, the example we have been given in support of the Bill is that of the clearly disreputable person who made preposterous claims to become a councillor. That seems to be covered perfectly by the Fraud Act 2006, because he wanted to take a job, which came with some pay, through dishonest means. As that is already covered under the 2006 Act, the Bill would make absolutely no difference, apart from the fact that such a person could not be treated as severely by the courts if prosecuted under this legislation as they could be under the 2006 Act. Hon. Members who are using that case to make the argument for the Bill are saying that they would want that person to be treated less severely by the courts than they could be under the existing legislation. That seems a rather bizarre way of making the case for the Bill.

Previous speakers making the case for the Bill have said that we must fall in line with other countries. A few months ago, I asked the House of Commons Library to let me know what happened in countries around the world. It came up with some detailed and enlightening research on the subject, some of which is summarised in the excellent research paper that accompanies the Bill. I suspect, Mr Speaker, that you would not want me to read out what happens in every other country with regard to this matter; I suspect that you would want me to make slicker progress than that. Tempted though I am to highlight what happens in other countries, given that that was given as one of the great reasons why we need legislation in this country—

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[Philip Davies]

My hon. Friend says that we have nothing, but I have just pointed out that we already have legislation to cover the one case we have heard as the basis for the Bill: it is called the Fraud Act 2006, which covers people who are trying to make any kind of financial gain from the fraudulent use of medals. If the point is having a deterrent, what are we trying to deter? We have not yet heard any credible cases, apart from one that is already covered by the 2006 Act.

A range of offences is covered among all the countries listed. There is a distinction between wearing medals, wearing medals with an intent to deceive in any way, and wearing medals with a view to making a financial gain. I am not going to encourage my right hon. Friend the Member for New Forest East (Dr Lewis) to rise again to break down the list he read out, making the distinction between those three different categories of offence. He grouped them all conveniently together, but as he well knows they cannot all be grouped together so neatly, because they include different categories of offence.

As we know, and as I have made clear, there is already protection in this country under fraud legislation. As my right hon. Friend said, some of the countries that do not appear to have any offence relating to the fraudulent wearing of medals include Finland, Latvia, Lithuania and Slovakia. I shall deal with the penalties in the Bill later, but it is clear that there are different penalties in different countries. Of the countries that do have a criminal offence of the kind in the Bill, some have only financial penalties and in some the offence is imprisonable.

The Royal British Legion notes in its written evidence to the Defence Committee:

“We are aware that the Awards for Valour (Protection) Bill is modelled, to some degree, on the Stolen Valour Act, which was first introduced in the United States in 2005, before being repealed and significantly amended in 2013. The provisions of the 2013 Stolen Valour Act are very similar to the provisions on false representation found in the UK’s Fraud Act 2006. Both pieces of legislation state that impersonation of members of the Armed Forces is only a criminal offence if it is used to make a financial gain or cause a financial loss. In short, simply claiming military awards, service, or injuries to gain sympathy or recognition, while certainly disappointing, is not in itself illegal under the US legislation. The original 2005 Stolen Valour Act had sought to punish all those who lie about their military service, but it was struck down by the Supreme Court as it was deemed to violate the First Amendment.”

This Bill seems to extend the scope of arresting someone for wearing a medal beyond those who aim to benefit tangibly via fraud to those who aim to benefit in an intangible way, such as to gain respect. The situation in America is a good example of how that could be unworkable in addition to being a step too far.

The Stolen Valor Act of 2005 came into US law in 2006. Its purpose was

“to amend title 18, United States Code, to enhance protections relating to the reputation and meaning of the Medal of Honor and other military decorations and awards”,

which is similar to the purpose of today’s Bill. The law made it a federal misdemeanour to falsely represent oneself as having received any US military decoration or medal. If convicted, individuals could be imprisoned for up to six months, except for falsely claiming to be a medal of honour awardee, in which case the imprisonment could be for up to a year.

However, in 2012 the law was struck down by the US Supreme Court as a result of United States v. Alvarez. Xavier Alvarez had falsely claimed that he had received a medal of honour and thereby violated the Stolen Valor Act of 2005, resulting in a $5,000 fine, three years on probation and 416 hours of community service—the penalties in the US tend to be sterner than in the UK for most offences. Subsequent appeals eventually reached the US Supreme Court, which ruled that lying about military heroics was constitutionally protected speech unless there was intent to gain some benefit or something of value by fraud. When announcing the Supreme Court’s decision, Justice Kennedy wrote:

“The Nation well knows that one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace. Though few might find respondent’s statements anything but contemptible, his right to make those statements is protected by the Constitution’s guarantee of freedom of speech and expression. The Stolen Valor Act infringes upon speech protected by the First Amendment.”

It seems as though we are trying to go the opposite way from the US. Following that Supreme Court decision, new legislation was drafted in the form of the Stolen Valor Act of 2013, which, in an effort to meet the Supreme Court’s objections to the 2005 Act, made it a federal crime for an individual falsely to claim to be a recipient of any of several specified military decorations or medals with the intent of obtaining money, property or another tangible benefit. However, as I have made clear, that is already covered under UK fraud legislation. It therefore makes no sense whatsoever to leave ourselves open to challenge on such an obviously flawed piece of legislation that has already proved to be unworkable in another country.

On the US situation, the Defence Committee’s report states:

“Whereas Alvarez was specifically concerned with the offences relating to false representation, the position in the United States concerning the physical wearing of medals remains uncertain. As well as amending the scope of the offences relating to fraudulent representation, the 2013 Act also removed the word ‘wears’ from the Federal Code. Litigation is currently ongoing to determine whether placing restrictions on wearing medals to which one is not entitled also violates the First Amendment in the same way as the offences of fraudulent representation which were struck down.”

In the over-lengthy intervention of my right hon. Friend the Member for New Forest East, he prayed in aid the United States for having the law in place, with penalties of up to a year in prison, but that law is not in place, as he well knows, as the Defence Committee made abundantly clear and as the Alvarez case stated. The law in the United States is exactly the same as the law in the UK’s Fraud Act 2006. My right hon. Friend must have known that when he made his intervention and tried to pray in aid the United States.

Like the US Supreme Court in its judgment, I believe in freedom, warts and all. That sometimes means the freedom to do daft, stupid, even annoying things without the threat of being criminalised. I would hate for such a case to be taken to the European Court of Human Rights not only because I would rather we had nothing to do with such a Court, but because it is avoidable. We managed to stop the use of insulting words and behaviour from becoming a criminal act under public order legislation, and it seems as though criminalising people for pretending that they are servicemen is similar in nature. We heard that the reason for the legislation is that people are offended by what other people do. There are all sorts of things that go on in this country to which people take offence—far too many in my opinion. I get very offended by how easily other people are offended, and I am unsure where being too easily offended will take us when passing laws. Are we going to pass a law to stop any offence ever being taken? That would be a ridiculous state of affairs, but that is the motivation behind this Bill: we want to pass a law because some people are offended. If that is the way that this House is going to go—I fear we already have in too many cases—it will be sad day for the House of Commons.

The Defence Committee further considered the point following the issues of freedom of expression that arose in America, stating:

“The ECHR case of Donaldson v. United Kingdom demonstrated that it is possible for the outward wearing of badges or devices to be considered as ‘expression’ for the purposes of Article 10, although emphasis in this case was placed on the device in question being worn as an expression of the applicant’s political views, which may not be so straightforward where medals are concerned. Even where the rights in Article 10(1) are engaged, Article 10(2) sets out the conditions in which it is legitimate for these rights to be restricted, including for the purposes of preventing disorder or crime (such as fraud) or to protect the reputation or rights of others (which could include the legitimate recipients of awards). The inclusion of an intent to deceive as an element of the offence, and the defences relating to family members would also be likely to assist in the legislation passing the Court’s test of proportionality.”

The competing rights are clear. We already have an offence for the purposes of fraud, but if the intent of the deception is simply to impress a woman in a bar, the threat of three months in prison may suddenly seem rather extreme.

I also asked the Library how effective the legislation was in other countries and how often it was used; the answer was even more illuminating. It is interesting to see how many times the offence was committed in some of the countries with the stiffest penalties. I will not read out the situation in every single country, Mr Speaker, because that would test your patience, but it is pertinent to point out some examples for the purposes of this debate. In the United States, federal prosecution statistics are published each year by the US Department of Justice. The latest figures, which are for 2012, were released last year. Even then, it has not been possible to ascertain specific figures for successful prosecutions under the Stolen Valor Act. The Library could not find any specific data on convictions and the only examples of prosecutions or instances when individuals were arrested but not charged are those reported in the media or on websites dedicated to exposing such individuals. The thrust of my speech is that the media highlighting such behaviour is sufficient. To expose such people for what they are and to open them up to ridicule is the best way of dealing with them, not a whole Crown Prosecution Service prosecution that leads to such people going to prison, which strikes me as rather ridiculous.

In Canada, similar to the US, statistics are compiled on criminal code offences by the Public Prosecution Service of Canada and grouped into categories. It is therefore difficult to obtain figures for such offences as it is unclear where the information is held. The only examples of prosecutions in Canada that the Library could find were those that were reported in the media. There was one particularly high-profile case in 2014-15 involving Franck Gervais, but that related to impersonating a soldier at a Remembrance Day ceremony in uniform, not to wearing a medal.

[Simon Hoare]

To the best of my knowledge, my hon. Friend has spent all his adult political life asserting the rights of this House and this country to be sovereign and independent. I am slightly confused as to why he is now praying in aid what other countries do and saying we should predicate what we do in this place on it.

[Philip Davies]

I am not entirely sure whether my hon. Friend has been following the debate thus far, but it seems to me that what I am doing for the benefit of him and others is demolishing bit by bit the points made by the people who are proposing this Bill. It is yet another of the arguments we have had for the Bill that we should be doing these things because that is what other countries are doing. That was one of the key planks of the opening remarks by my hon. Friend the Member for Dartford, but I did not hear my hon. Friend the Member for North Dorset pull him up on that point and say it was irrelevant. If he had said at that point, “Why on earth are you on about other countries? That is irrelevant,” or if he had made a similar intervention after my right hon. Friend the Member for New Forest East had made similar points, I would have had a bit of sympathy with them, but it seems that he is now clutching at straws to try to defend a Bill that is becoming increasingly indefensible because it is completely unnecessary. I have been knocking down each point that has been made, and he cannot actually answer my points; all he can say is, “The point we made at the start about why this Bill is so necessary is not really one of our main points.” I cannot second-guess what the real points are, and I can base my points only on the arguments that have been made by the people who propose the Bill. If people want to make other arguments, I am prepared to listen to those, but, thus far, I have not heard any. One of the key planks was that we have to do these things because other countries are doing them—my right hon. Friend the Member for New Forest East made that point himself.

With regard to Australia, the Library said:

“Australia’s Federal Prosecution Service publishes some slightly more useful figures but even then it is difficult to say with certainty that they were related to stolen valour. In 2012-13”—

the latest year for which figures are available—the service

“dealt with 2 cases under the Defence Act 1903. However, the statistics don’t state what the specific offences were.”

The Library also states:

“much of the information found has been the result of media searches. For example, an article in The Herald Sun in September 2014 suggested that in the state of Victoria alone, over the last ten years…‘five people have been charged by police with impersonating a returned soldier, two people have been charged with impersonating a member of the defence force and seven people have been charged with improper use of defence service decoration.’”

In New Zealand, statistical information of this nature is presented in the same way. The offence of wearing an unauthorised military decoration could feasibly be included in fraud, public order or miscellaneous offences in the country’s database, so it is difficult to pinpoint the extent of the problem.

In Australia and New Zealand there is a group called ANZMI—the Australian and New Zealand Military Imposters group—which is dedicated to exposing military imposters. It has a section on its website that lists individuals it considers to be military imposters. The information it provides is not official, and has not necessarily led to a prosecution, so it should be treated with some caution. It does not appear that there are lots of prosecutions for all offences, never mind for the offence of wearing a medal.

Some people who wear medals to deceive will be evil characters—most likely with the intention of gaining something for themselves. That will be something financial in a lot of cases, or it may be to impress other people. The ones who set out to deceive for non-monetary purposes must have a different reason for doing so—maybe to gain respect, to big themselves up or to attract a member of the opposite, or the same, sex. Who knows?

However, I am concerned that people with mental health issues may be disproportionately affected by this offence, rather than by the fraud offence.