Examination of Witnesses (Questions 80
THURSDAY 18 JANUARY 2001
80. That is what they are supposed to be for.
I can see they can be used for something else if you have strong
(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
(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
(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.
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
(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.
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
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.
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.
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
95. Is there any difference in United Kingdom
or foreign journalists? Is there an MoD pool, for example, in
(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
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.
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.
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.
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
Mr Key: I might have to refer back.
4 See Appendix 6. Back