Select Committee on Armed Forces Minutes of Evidence

Examination of Witnesses (Questions 80 - 99)



  80. That is what they are supposed to be for. I can see they can be used for something else if you have strong suspicions.
  (Mr Miller) The key point is, if you are investigating a suspected offence then this clause would apply. Admittedly, one is thinking in terms of a more limited search of a room or a group of rooms or possibly a barrack.

  81. Say there was a suspicion that there were illicit drugs in a particular barrack room would an inspection for the whole lot be justifiable as long as everyone's locker was investigated or if they found drugs in a particular locker would that person then be able to say he did not get a proper warrant?
  (Mr Miller) If there was reason to think there were drugs in a particular barrack I would expect a warrant to be obtained to search the entire block.

  82. It would have to be the whole lot. How long would that take, on average, to obtain a warrant?
  (Mr Miller) We anticipate it could be done quickly, in a matter of an hour or two in an extreme case. This is one of the reasons for providing video links, and so forth.

  83. If there was a tip off—
  (Mr Morrison) Sorry to interrupt, we must also bear in mind the CO's reserve power here. We are looking at what would be the normal situation. There will be reserve power of the CO to act either by way of not using Service policemen or otherwise to act without a warrant where the system, if you like, of obtaining a warrant cannot be obtained in a timely way.

  84. Which section are you looking at? Is that clearly defined? What is a timely way?
  (Mr Morrison) Yes. I am not quoting the Act.

  85. I am little uncertain about whether this could be got round or not if it was seen to be relatively an emergency, for some reason, or you had reason to believe people had been tipped off.
  (Mr Miller) In an emergency if you think the evidence will be removed or destroyed before you have time to get a warrant, then you do have, under a subsequent clause, power to search.

  86. Do you think an individual serviceman would then have recourse to say he did not get a proper warrant?
  (Mr Miller) No, because there is cover in the Bill, and in due course in the Act, he would be covered by this. We obviously made provision to cover the possibility, and we will come to that clause.

  Chairman: I must admit when people are talking about the size of accommodation, and so on, I was thinking about the realities of life on board a submarine and how you would deal with that sort of situation. We are going to be covering some of these areas.

Mr Key

  87. One point of definition, could somebody help me, please, in Clause 5(1)(b) it refers to excluded material. Can you please tell me where in the Bill the definition of excluded material is?
  (Mr Morrison) It actually goes to the definitions in PACE (Police and Criminal Evidence Act 1984). When you turn to the definition section or the definition reference, which is 15 or 16 it says, "excluded material" and similarly these other expressions have the same meaning as in the 1984 Police and Criminal Evidence Act. This very much reflects or is related to the provisions in the Police and Criminal Evidence Act dealing with these particular types of evidence.

  Mr Key: Thank you very much. I will come back to that in the next clause.


  88. Can we now move on to Clause 6?
  (Mr Miller) Clause 6 essentially deals with the "excluded" or "special procedure" material. The point here is that there are certain materials, for example, medical records, which are subject to a separate, different procedure in civilian law. Clause 6 will allow the Secretary of State to make orders to enable the Service policeman to apply to a judicial officer for a warrant for access to excluded material. In other words, what we are providing for here is for separate consideration, where the need is to take away excluded or special material.

Mr Key

  89. Thank you very much. I think this is of very great significance, this definition of excluded material. In the very helpful note prepared by the Ministry it says at paragraph 31 that excluded material includes personal records, such as medical records, if held in confidence, and also journalist's materials if held in confidence. An example of special procedure material would be journalist material not held in confidence. Is this about saying to a journalist pursuing military activities or investigating allegations or, indeed, a case, that this clause provides that the journalist will have different treatment under military law from the treatment he would get under PACE 1984 or other civil law because the Secretary of State can make a special order saying, "You, the journalist, do not have your usual protection, because this is a military case"?
  (Mr Miller) No, for two reasons. Firstly a journalist would not, in most circumstances, be covered by the Service Discipline Acts, so this would not apply. Secondly, the intention, the definition is exactly the same as used in civilian law. The whole point of this clause is to bring the same protection that applies in civilian law into searches in these circumstances.

  90. Why, then, has the Ministry of Defence drawn attention to this fact and specifically mentioned journalist material if held in confidence?
  (Mr Miller) I assume that this is material which is similarly subject to a different approach under the Police and Criminal Evidence Act.
  (Mr Morrison) This is simply trying to give an example of the sort of material which will not be within the ordinary powers of a search. Clause 6 allows the putting in place of provisions which if they are put in place will almost certainly be equivalent to those under the 1984 Act to allow that sort of material to be seized. The seizure will be from someone who is subject to Service law. The only reason for having a special clause is there will have to be certain differences, if we are going to have these powers, between what is in PACE and what can work for the Services. Most obviously this is actually referred to in Clause 6(2). The special procedure under PACE provides for application by Home Office police to circuit judges. We have to work out some sort of equivalent for that within a military regime and provide for that. There are various things to be worked on before we can work out what those equivalents are and those provisions are put in place.

  91. I am troubled by this, Chairman. I think we will need to invite the National Union of Journalists to comment on this. I have a nasty suspicion at the back of my mind that this is the Kate Adie clause for coping with CNN or Sky in theatre and we might find that deep down here there is some attempt being made to give more control to those circumstances. I do not normally believe in conspiracy theories. My experience has always led me to believe the cock-up theory of government every time. I am concerned about this and I would wish to probe it further on another occasion.

  Mr Davies: I did not really find much of Mr Morrison's explanation very comprehensible. What is journalist's material? I do not know whether you drafted this particular passage in the explanatory memorandum, but I would like somebody to explain to me what journalist material is.

Mr Key

  92. A pen!
  (Mr Morrison) It is "journalist material held in confidence", I will have to look at the definition.

  Mr Davies: "Held in confidence" is a concept I understand. What is journalist's material?


  93. Is it a tape recorder?
  (Mr Morrison) We will have to look at that.

Mr Davies

  94. Can you help, Mr Miller, this is your document? You give us a Bill and you give us an explanatory memorandum and you then come before us with all of the officials you tell us that are required to explain to us your explanatory memorandum and I ask you a question like this and you say that you will have to come back to us.
  (Mr Miller) Indeed. I cannot answer the question here and now. I will need to come back to it. I will make the point that what we are trying to do here is reflect the practice in civilian law. We will need to chase this through to see exactly what it is.

  Mr Davies: We look forward to that.

  Chairman: Committee members have made clear they will pursue this matter further. I am anxious we should move on.

Mr Keetch

  95. Is there any difference in United Kingdom or foreign journalists? Is there an MoD pool, for example, in operation?
  (Mr Morrison) There is a misapprehension. This power under Clause 6 only refers to that sort of material on relevant residential premises. We are talking here about Service Living Accommodation, we are not talking about going into other people's houses.

  96. They might be on board a ship.
  (Mr Morrison) There is no restriction in PACE on the definition of journalistic material as between materials produced by journalists abroad or produced by journalists here. Journalistic material is described in very general terms.

Mr Davies

  97. We do not know what it is. Is it journalist's material held by a servicemen which relates to his correspondence with a journalist or is journalist's material, material owned by a journalist, if so any material which happens to be in the possession of a journalist, or a particular kind of material? Clearly none of you today can answer these questions. We had better have those answers before we proceed.
  (Mr Morrison) I think we can answer some of those questions. Journalist material is a description of a type of material, it does not say who is holding it. PACE works on the basis that an order can be made against anyone who is holding journalistic material. Journalistic material is defined very, very broadly as material held in confidence.

  98. Journalist's material held in confidence actually means journalistic material held in confidence. You have taken us a long way with that one.
  (Mr Morrison) The concern here is from who they can be seized. The seizure that can be provided for under Clause 6 is only from Service accommodation. Whereas PACE gives very wide power to the civilian police this is a much more limited power to allow the Service police, if a regime is put in place, to seize that material from Service places.

  Mr Keetch: We need to know in an operational situation, like Brian Hanrahan on board Hermes or Kate Adie in Kosovo, what this means to them. Does it mean that the MoD have powers to go into their billet, which would be on MoD property if it were a ship or an MoD range, and go in and search journalist's tents and remove tapes, films and notes of things that they may have taken which they may be preparing to use in a bulletin? That is what the Committee needs to know.

  Chairman: Can I say, it is clear that Mr Morrison and Mr Miller and others will be required to come back before the Committee to answer in somewhat more depth and detail the various questions that have been raised.

  Mr Clelland: One additional point.

  Chairman: I am keen to move on.

  Mr Clelland: Very quickly.

  Chairman: I did not intend to spend time talking about journalists.

Mr Clelland

  99. What is the difference between what is proposed here and what exists at the moment?
  (Mr Miller) As things stand at the moment there are no restrictions on the powers. This is the point about this clause, it is intended to introduce a special process, as distinct from that covered by Clause 5, where there is a possibility of finding things like journalist's materials, whatever they may be. Madam Chairman, I fully recognise the Committee would like more explanation about this and we will provide that.[4]

  Chairman: Can we move on to Clause 7, please? We have spent a considerable amount of time on this. We have been given a commitment that we will be spending time investigating it.

  Mr Key: I might have to refer back.

4   See Appendix 6. Back

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