Member's Correspondence (Hansard, 6 February 1985)

§ Mr. Mellor

The text of my reply is as follows: I am sorry that I have not been able to write to you sooner with a substantive reply to your Question of 17 December about the jurisdiction of the United States authorities over their servicemen in this country. The terms in which you couched your Question are, of course, entirely hypothetical; no case has ever occurred in which a United States serviceman has, in the course of his official duties, shot a United Kingdom citizen. We have no plans for amending the Visiting Forces Act 1952 which, as you know, gives effect to the 1951 NATO Agreement on the Status of Forces. I believe that the Agreement and the statute provide a workable and satisfactory legal basis for foreign forces in this country. On the specific point raised in your Question—jurisdiction over a United States serviceman who shot a British citizen—I think it important to keep in mind the distinction between, on the one hand, the application of UK Law, and on the other, the respective jurisdictions of the visiting force's service courts and 572W of our civilian courts. In view of your known interest in the Visiting Forces Act, I doubt if I need spell out the provisions of the Act which deal with jurisdiction. As you know, it is the operation of section 3 of the Act which appears to cause most concern, dealing as it does with concurrent jurisdiction. Section 3 provides that, if a United States serviceman commits an act which is an offence against the law of both the United States and the United Kingdom, in most cases it will be the United Kingdom courts which have primary rights to deal with the offence. The only exceptions to this rule occur in the event—envisaged by your Question—that the offence arose out of and in the course of duty, or it was committed solely against persons or property associated with the visiting force. In such cases, the primary jurisdiction is exercised by the authorities of the visiting force, but the United Kingdom courts have a secondary right of jurisdiction which they may exercise if the authorities of the visiting force decide not to exercise their primary right of jurisdiction and deal with the case under their own law. It is difficult to speculate on what action might be taken under the 1952 Act if an incident ever occurred in which a United States serviceman, in the course of his duty, shot a British citizen. Much would turn on the particular circumstances of the incident. Clearly the authorities of the visiting force would have to consider whether excessive force had been used and thus whether an offence had been committed. In doing so they would need to take account of the provisions of our law (in particular, section 3 of the Criminal Law Act 1967), and would no doubt be sensitive to the need to consult our authorities about any action to be taken. If it appeared that an offence had been committed under both US and UK law but the US authorities decided to take no action, the UK authorities would be entitled to exercise jurisdiction. In addition, even if the US authorities had primary jurisdiction in a particular case, under the terms of the Status of Forces Agreement (Article VII, paragraph 3) they would have a duty to give sympathetic consideration to a request from us to waive their jurisdiction. They are also under a duty (Article VII, paragraph 6(a) to provide assistance in the investigation of offences and in the collection and production of evidence. As I said in the Parliamentary debate on 19 December 1983, if any case arose in which the United States authorities appeared to be adopting what seems to be an unreasonably extensive interpretation of what constitutes official duty, we would not hesitate to make the most strenuous representations to ensure that the spirit, as well as the letter, of the NATO agreement was fully respected.