Every now and then, as Bonnie Tyler so nearly put it, I fall apart sobbing in giddy astonishment at the folly of our elected representatives. And I need you now, dear reader, and I need you more than ever as the willing sounding board in my echo chamber of lawsplaining.
Today’s culprit is Conservative MP Gareth Johnson, who has captured the imagination of news outlets desperate for something to distract from the relentless nihilism of our politics. His Private Members’ Bill, the Awards for Valour (Protection) Bill has won the support of the House of Commons Defence Committee, and thereby takes a military step towards its Second Reading on Friday.
The Bill aims to prohibit the wearing or public display, by a person not entitled to do so, of medals or insignia awarded for valour, with the intent to deceive. To borrow the media-speak, it targets the “Walter Mittys” who adorn themselves with unearned medallions and insist that everyone call them “Colonel”, causing enormous offence to genuine service personnel and their loved ones.
And it is wholly misconceived.
The text of the Bill is short and can be reproduced here:
The drafting is at least to the point. Pretend to have been awarded a medal for valour and face up to 3 months in prison (although the Committee in fact agreed with Mr Johnson’s suggestion that the maximum should be 6 months, so we can expect an amendment). If there is merit in its brevity, however, the plaudits end there. It is in every other way an appalling Bill.
There are two kinds of people who dishonestly wear military medals that they haven’t earned. Those who do so in order to obtain some sort of advantage, usually financial. And those who do so simply because they like the undeserved attention that the artifice confers.
The first category is plainly conduct requiring a criminal sanction. If you deceive in order to gain for yourself or to cause a loss to another, the law should intervene to protect the victim. And it does. We have the Fraud Act 2006 for just such an eventuality. So if you are duplicitously pinning on unearned medals to persuade people to donate to your fictional charitable cause, that is an offence under section 1 and 2 of the Fraud Act 2006, carrying a maximum sentence of 10 years.
The second category comprises, in the words of the Committee, “contemptible fantasists” – those tragic, often lonely men, whose deceit and/or delusion may well be deserving of public contempt, opprobrium and mockery, but who cause “harm” only to the extent that one equates “harm” with “moral offence”. Which I do not. First year undergraduates will be able to knock out essay after essay on the “mala in se” and “mala probihita” debate far more fluently than I, but I start from the philosophical position that criminalising conduct not because it causes harm but because it offends broader public sensibilities is a regressive misuse of the state’s coercive powers.
The Defence Committee in its report, regrettably, disagrees. It identifies that harm in such behaviour arises due to the “insulting” nature of the conduct, and the damage to the integrity of the system that it assumes flows therefrom. From this, the Committee gallops swiftly to its conclusion that a law is needed to protect the sensibilities of those offended.
The Defence Committee’s report is crammed full of other evidential gaps and leaps of logic. It confidently asserts, for example, that “We have received evidence that points to a continuing problem with military imposters”, before conceding that it is unable to identify with any accuracy the scale of this problem due to lack of recorded statistics. It acknowledges the Royal British Legion’s evidence that such conduct is “rare” and “not widespread”, but decides to favour the anecdotal evidence of the Bill’s sponsor and other witnesses. Quite how the Committee could hear conflicting anecdotal evidence and conclude that it was sure that the integrity of the system was imperilled is a mystery.
The Committee draws analogies with the offence of impersonating a police officer, which does not require proof of gain, without recognising the very different, specific and real harm that is caused by the public being misled into believing that an individual is invested with the coercive powers of the police.
It does not even take heed from history. For we had a law like this until a decade ago. A corresponding offence appeared in section 197 of the Army Act 1955, until it was abolished in the Armed Forces Act 2006. Justifying this decision at the time, the MoD said:
“the important element of the offences was to prevent people from making financial or other gain dishonestly by wearing uniform” and that the general offences under the Fraud Act 2006, which potentially attract much more serious penalties, would cover those eventualities. There was also a concern 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”.
The Report acknowledges this, before swiftly moving on without addressing the argument. Because it cannot be addressed. This new offence will be at once difficult to prove and entirely unmeritorious.
The report sensibly proposes that the MoD publish an online database of those awarded medals, to allow for swift public verification of claims to honours. This is a fine idea. It is a shame that this was not the sole remedy alighted upon, and that the Committee considered that instead stretched police, CPS and court resources should be expended on more prosecutions.
I do not for a moment doubt the offence caused to military personnel and their families. And I agree that there is a particular degree of unpleasantness and aggravation of offence, given the particular sacrifices that are by those who earn such honours. But it is worth remembering that the Walter Mittys of this world do not restrict themselves to the misappropriation of military honours. They pretend to be doctors, inventors, Nobel prize winners, retired detectives, lawyers, decorated firefighters and much more besides. And once we start saying that the law should criminalise deceitful conduct based not on harm but on offence, we will find other groups seeking similar protection. Why, it may reasonably be asked, should the same criminal sanction not be imposed on those who falsely claim to have saved lives in war zones as a member of Médecins Sans Frontières?
The Report also pays scant regard to the personal circumstances of those who will likely fall foul of this law. Many will be elderly. Many will have mental health problems. All, by virtue of the fact that they have not been charged with fraud, will be entirely harmless.
To suggest, on the day that the Lord Chief Justice correctly points out that our prisons are bursting at the seams with prisoners who we do not need to lock up, that what we urgently require is more tragic, deluded, harmless old men locked up for up to 6 months, represents exactly the kind of muddled thinking and crass appeal to populism that our MPs should know better than to indulge.
For at least the last couple of years our politicians, on all sides of the house, have shown no reluctance whatsoever to indulge in “muddled thinking and crass appeals to populism”.
The proposed bill deals only with gallantry medals *in connection with an act or acts of valour” No current member of the Royal Family has ever worn a gallantry medal. What you usually see are Coroination and Jubilee medals and sundry awards. Exceptions are Prince Phillip, Prince Andrew and Prince Harry, all of whom wear campaign medals which they are certainly entitled to.
I agree with you completely.
Of course it is bad behaviour to wear a medal you aren’t entitled to. But that doesn’t mean it should be a criminal offence. The bill seems to rest on the assumption that any bad behaviour, however small-scale its effects, should be made a criminal offence. That is surely not an acceptable principle.
Moreover, the bill as drafted is confused about the medals it applies to. In some parts of the text it seems to limit the offence to the wearing of the kind of medal awarded for a specific act of gallantry, eg the MC. But elsewhere it seems to include also the other kind of medal: the campaign medal awarded just for being present in a certain theatre of war, eg the Italy Star. Whether it includes the War Medal 1939-45, awarded for having served in the armed forces for at least 28 days in 1939-45, remains obscure.
you perhaps mean Gareth Johnson MP
Would this law affect members of the Royal Family?
They always seem to turn up to events such as Remembrance Sunday with a chest full of medals, yet I don’t recall many of them doing a lot of fighting.
Good heavens, what a ridiculous and sinister law. Don’t lock up Billy Medals!* Interesting, but I suppose unsurprising, that there’s a specific exemption for people wearing medals to honour the person to whom they were awarded; I find that rather disrespectful myself, but it seems to be a fairly established practice.
danesclose – no, they’re not trying to deceive anyone; also, they’re “entitled”, what with being royal.
*Poem by Charles Causley; I can’t find it online, but it’s well worth seeking out. Here’s the last verse:
Did you see the brave soldier
New-home from the war
Give Billy the star
That once proudly he wore?
Billy Medals, he cackled
And capered with glee
And the village-boys laughed
But the soldier, not he.
It’s more than a little bit shocking that an elected Member of Parliament, whom you might expect to be the best of us, could come up with such a woolly and vague piece of proposed legislation. In contrast, one of the great things about the small number of legal blogs which I read is the way in which they present the English language at its precise and concise best. Indeed, that precision and concision seem to catch a lot of people out, people who just aren’t used to it. Clearly some of our elected representatives aren’t either.
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