It is a source of controversy that overseas military personnel who are alleged to have committed criminal offences whilst serving in the UK often cannot be prosecuted in this country. As a judge’s ruling made plain, however, that embargo only applies to those who are on duty at the time of an alleged criminal act.
The case concerned a United States Air Force (USAF) airman who was serving at a base in the UK when she was alleged to have been involved in a road collision with a young motorcyclist. She was subsequently charged with causing his death by careless driving.
The USAF, however, argued that the UK courts had no jurisdiction to try her. Pointing to the provisions of the Visiting Forces Act 1952, it asserted that she could only be tried in her homeland in that the alleged offence arose out of, and in the course of, her duty as a member of a visiting overseas force.
Ruling on the jurisdictional issue, the judge noted that she was driving home after a physical training session at the base. She was wearing her USAF-issue PT kit and her home, which was a half-hour drive from the base, was found for her and owned by the USAF. The latter asserted that she was at all times subject to service law and thus could never be viewed as off duty.
The judge, however, found that her PT kit could not be viewed as a uniform and that her wearing of it did not indicate that she was on duty. Her vehicle was registered and insured in her name. She received no additional pay for her journey home and there was no evidence that the USAF covered her fuel costs. She was neither under orders to make the journey nor was she on an emergency call-out or the like. She was simply travelling home after a day at work.
Rejecting arguments that she was, in effect, permanently on duty throughout her UK posting, the judge noted that such a finding would amount to an almost universal ouster of UK jurisdiction, contrary to the intention of Parliament. In opening the way for her to be tried in this country, the judge was satisfied that the alleged collision did not arise out of, and in the course of, her duty as a member of a visiting force.