Awards for Valour (Protection) Bill

Wendy Morton Excerpts

Friday 25th November 2016 Commons Chamber

[Philip Davies]

Thank you, Mr Speaker. What my right hon. Friend said is right, but if he thinks that that is the full list of the countries around the world, he is doing his geographical knowledge a disservice. As he well knows, there are far more countries than that around the world.

[Wendy Morton (Aldridge-Brownhills) (Con)]

Does not that great big long list that has just been read out indicate that many countries have such offences with prison sentences and fines? That acts as a deterrent, but without the Bill we have nothing.

[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.