The Secret Life of Walter Mitty was first published in the New Yorker in 1939. It tells the story of a nondescript individual who fantasises about being, variously, a US Navy pilot, a brilliant surgeon, an assassin, a Royal Air Force pilot on a suicide mission and, finally, facing a firing squad. The literary character was a largely harmless daydreamer living in an imaginary world, and has entered modern parlance as a more sinister character who attempts to mislead others into pretending he is someone else.
The law has traditionally not sought to criminalise fantasists or eccentrics unless they do so for fraudulent reasons, or their conduct causes harm. Hence one of the most famous impostors in recent history, Frank Abagnale, was imprisoned for fraud offences after posing variously as an airline pilot, a physician, US government agent and a lawyer.
The House of Commons Defence Committee has recently published a Report entitled Exposing Walter Mitty: The Awards for Valour (Protection) Bill. The Bill, “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” was initially introduced as a Private Members Bill, which seeks to restore protections into law by attaching criminal sanctions.
Specific prohibitions on the unauthorised use of medals first became an offence in England and Wales during the First World War under powers contained in the Defence of the Realm Acts. Defence of the Realm Regulation 41 made it an offence for a person to use or wear a decoration or medal without authority (or wear a replica which closely resembles such a decoration or medal). It also became an offence falsely to represent oneself as a person entitled to wear such a decoration or medal, or to supply decorations or medals to unauthorised persons without lawful authority or excuse.
Following the end of the war, the Government put a number of provisions, including Regulation 41, on a permanent statutory footing. An offence of similar scope to Regulation 41 was accordingly inserted into the Army Act 1881. The 1881 Act was subsequently replaced by the Army Act 1955.
The Armed Forces Act 2006 replaced the three separate Service Discipline Acts with a single statute. However, section 197 of the 1955 Act was not reproduced in the 2006 Act and its provisions were repealed in 2009. As a result, no specific offences now exist relating to the unauthorised wearing, or false representation of entitlement to wear military decorations or medals. At the time, the Ministry of Defence argued that the important element of the offences was to prevent people from making financial or other gain dishonestly by wearing uniform and that the Fraud Act 2006, which allows more serious penalties, would cover such 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 Bill’s sponsor, Gareth Johnson MP, acknowledged in oral evidence that a lack of clear data caused difficulty in determining the scale of the problem. However he asserted that a combination of reports in the national press, the well-publicised activities of groups dedicated to exposing military imposters, and his own anecdotal experiences pointed to this conclusion.
Mr Johnson’s justification for the bill is:
What this [Bill] endeavours to do is to prevent people, as we have seen before, joining in Remembrance parades, wearing medals, pretending they are courageous when they are not—pretending they are better people than they actually are and seeking to actually get some kind of reward or favour or enhancement in their character as a result […] I can see how [military imposters] could cause the greatest amount of offence to those people who have maybe lost loved ones in conflict or who have actually received those awards themselves after they have put their lives on the line and some impostor comes in and pretends they are the same as them.
The report provided the following conclusions:
- The unauthorised and deceitful use of military decorations and medals is a harm that is worthy of specific criminal prohibition. Such behaviour is not only insulting to the rightful recipients of these awards, but also damages the integrity of the military honours system and the bond of trust and respect between the public and the Armed Forces.
- Criminalisation of the unauthorised and deceitful wearing of decorations and medals is commonplace in many other jurisdictions, to such an extent that a lack of similar protection in the United Kingdom can be viewed as exceptional.
- The Ministry of Defence should set out the practicalities of creating an online, publicly-searchable database to record those who are rightful recipients of gallantry and distinguished conduct awards, along similar lines to the database instituted by the US Department of Defense. This would allow authoritative verification of claims to entitlement and act as a deterrent to military imposters, whose deceptions would be liable to swift and accurate exposure.
- The inclusion of a defence to ensure that family members representing deceased or incapacitated relations who are recipients of medals is vital, but ‘family member’ must be properly defined to ensure that there is no room for uncertainty or abuse. The Bill should include a definition of ‘family member’ in order to provide certainty over who will be covered by this category.
- The proposed penalties, a period of imprisonment not exceeding six months or a fine, are appropriate.
The report concludes by saying that the protections sought in the Bill are necessary to safeguard the integrity of the military honours system, to reflect the justifiably strong public condemnation of the deceitful use of military honours, and to ensure that legitimate recipients of these distinguished awards should not have to endure the intrusion of imposters.
There is no doubt that the unauthorised and deceitful use of military decorations and medals can be deeply insulting to the rightful recipients of these awards, and to families who have lost loved ones in armed conflict. But it is also correct to question whether such behaviour is worthy of specific criminal prohibition.
The Fraud Act 2006 enables those who use military decorations for gain to be prosecuted, if it can be proved they have dishonestly made a false representation, and intends, by making the representation, to make a gain for himself or another, or cause loss to another. For more information see Practice note, Fraud by false representation.
Trying to prosecute those who represent themselves as genuine recipients of awards seems to be fraught with difficulty and potential injustice. The comparison made with the situation of police officers in the report: “We also disagree that offences involving an intention to deceive which are not related to fraud may raise practical difficulties on questions of proof. Such offences do exist: for example, the offence of police impersonation under section 90 of the Police Act 1996” misses the point that impersonation offences are designed to prevent an abuse of power.
The “intent to deceive” aspect is perhaps more complex than the report has considered. There is nothing to prevent an individual displaying the medals of another during a military or remembrance parade claiming that his actions were not meant to deceive anyone, merely a respectful action to remember those who gave their lives. Similarly, the inclusion of a statutory defence to ensure that “properly defined” family members representing deceased or incapacitated relations who are recipients of medals are not prosecuted has the potential to place an objective standard on who might have the right to legally remember a family member.
The net effect of any resulting Act is likely to be extremely limited, with a handful of individuals, many of whom are likely to suffer from health problems, being given fines they cannot pay or short custodial sentences in already overcrowded prisons.
Finally, the law of unintended consequences emerges. The report states
We recommend that the Ministry of Defence should set out the practicalities of creating an online, publicly-searchable database to record those who are rightful recipients of gallantry and distinguished conduct awards, along similar lines to the database instituted by the US Department of Defense. This would allow authoritative verification of claims to entitlement and act as a deterrent to military imposters, whose deceptions would be liable to swift and accurate exposure.
Such a database would allow authoritative verification of claims to entitlement. It would almost certainly not deter those who wish to wear medals, and would provide a database of distinguished servicemen and women to those who may seek to cause harm.