Select Committee on Armed Forces Minutes of Evidence

Examination of Witnesses (Questions 100 - 119)




  100. Clause 7.
  (Mr Miller) Clause 7 is essentially intended to give some flexibility in the system to deal with those situations where a search is required but there is not time to obtain a warrant for a search. This is an operational situation or something of that sort. It is intended that the commanding officer may exercise the power if he reasonably believes that the time needed for Service police to obtain a warrant would result in the purpose of the search being frustrated or prejudiced. He may only do so in circumstances where a warrant could have been applied for had time permitted. He must be satisfied, therefore, that a serious offence has been committed and there was relevant material on the premises in question. The clause requires that such a search is carried out by a Service policeman, unless one is unlikely to be available, in which case the commanding officer may authorise another member of the Services to undertake the search. Where he authorises somebody other than the Service policeman to undertake the search the clause restricts the range of premises that may be searched. The search by Service personnel who are not Service police is ruled out in the case of private residences, they could not search a married quarters. Where we are talking about searching the equivalent of a private home, then it is appropriate for that search to be done by a policeman. The power for the commanding officer to authorise these searches is circumscribed. It will not go unchecked. There will be a system of judicial scrutiny as a safeguard, and that is subject to Clause 8, when we get to it.

Ms Taylor

  101. I am very concerned, again, to hear your thoughts with regard to the position the commanding officer is actually put in. Here he is now given discretion, he can exercise discretion with regards to search. I am concerned to ask you, as we are setting up a particular piece of law here that controls the way in which investigations and searches take place, are we going to find that even though discretion is given to the commanding officer that he is going to veer on the cautious side? The judicial review, which is Clause 8, the judicial officer in Clause 8 has the option to look at how and in what way he operated his discretion. I am concerned that he knows someone is going to be watching, looking, checking and possibly finding that he may have taken a decision or made a decision or given an opportunity which actually was not appropriate when, in fact, the search took place. I am concerned to hear your thoughts. Are we giving him a power which ultimately he is going to feel far too cautious about, because of the law, to actually use?
  (Mr Miller) Obviously some of this is a matter that we will deal with in the course of training existing commanding officers, as the introduction of the law proceeds. Training for future commanding officers will be covered as part of their training in legal procedural matters. That, I think, is the main part of the question, the training issue. I would hazard a further observation, my personal experience has been that serving officers are not reluctant to act when they think the need to do so is dictated by the needs of the Service.

  102. I am grateful for that. My second question was actually on training. My third, and last question, is, there was concern expressed in the chamber when we were looking at the way in which new regulations are being weaved into the way which search and investigation takes place. There was a concern expressed, very genuinely, that this actually would ensure risk aversion, that, in fact, we would see people veering to taking a cautious approach, not the appropriate, not the courageous, as I believe it was spoken in the House. Is it your belief that risk aversion will be a factor?
  (Mr Miller) That, I think, is as much a matter for my Service colleagues as for myself. No, I do not think this individual item on its own nor, indeed, the cumulative effect of what we are doing here would have that sort of impact on the attitude of commanding officers.
  (Commodore Bryant) I think it is a power we would exercise very rarely in any circumstance. There would be occasions when it is physically impossible to get a judicial officer to issue a warrant, if, for example, you were in the Antarctic. On other occasions commanding officers would be grateful for the positive framework, on which they will be trained and advised in our publications of what they might do. Their difficulty now is that with all of the new legislation coming in they do not know where they stand. This is why we framed this to give them a clearer view.

Mr Key

  103. Clause 5 was all about introducing a judicial officer into the process. If a judicial officer is satisfied there are reasonable grounds then he can issue a warrant to authorise a Service policeman to enter and search. Then why do we move on to Clause 7 and suddenly the judicial officer is out of the window? An officer if he believes, no doubt, that the purpose of the search would be frustrated or seriously prejudiced, the officer without recourse to the judicial officer could authorise the search anyway. What is the point of Clause 5?
  (Mr Miller) This is specifically aimed at the situation where there is no time to obtain a warrant. It is a residual power for the commanding officer so he can deal with the exceptional situation, which, given the nature of Service deployment, is bound to arise occasionally.

  Mr Key: It is certainly going to be frustrating if he has to apply for a judicial officer. That is why in Clause 6 we had the reference to television links in the passage of the Armed Forces Discipline Bill last year, which allowed television links for a number of purposes. At no point, in spite of repeated requests, was the Ministry of Defence able to demonstrate to the Committee that there was a technical capability and competence to actually set up television links as required. We spent a considerable time exploring that problem and we asked for demonstrations, and the Ministry of Defence was unable to provide any. I hope we can see in operation television links being used for these sort of purposes, because we were told that in an operational scenario those television links would be working in Kosovo and elsewhere. I believe Mr Keetch would endorse that.

Mr Keetch

  104. To clarify that, in answer to a question from me Commodore Bryant said they are being used and used very successfully.
  (Commodore Bryant) Within the land based environment.


  105. I must admit that given I spent most of my time on ships at sea I think there can be somewhat different restrictions to land-based operations. Can we move on, it picks up on some of the points already made, Clause 8.
  (Mr Miller) Clause 8 deals with the question of review by a judicial officer. It simply provides that, where a commanding officer has authorised a search without a warrant and property has been seized during the search, the commanding officer has to request a review of the search. It is intended to provide that if the judicial officer decides that the search occurs in circumstances in which a warrant would not have been granted he may then require that the property seized should be returned. This is essentially a safeguard so that if a commanding officer has to proceed with a search in the absence of a warrant from a judicial officer there will be a review which will consider whether it was justified.

  106. Can I ask why the distinction has been made between a review of searches, where something is seized, as opposed to a review of all searches which have been authorised in this way, whether or not something is found. Why is that distinction drawn?
  (Mr Miller) If property has been seized there clearly is an element of restitution which is open to the organisation, we can give the property back. There is an issue, because if the property has been removed and obtained and that has been done improperly then there is something there that has to be put right. This is therefore the area where a review is important.

  107. You do not think there will be any element of restitution and somebody feeling that because a search had been made and nothing had been found there has been some kind of unfairness in carrying that out. In other words, saying this should not have happened in the first place.
  (Mr Miller) Perhaps I can ask Mr Morrison to answer that.
  (Mr Morrison) The purpose of this provision is to prevent evidence being seized and used which should not have been seized where, of course, a warrant would not have been granted. If a search is made and damage is done, even if nothing is seized, then the member of the Service who is the subject of this search would have a right to make a complaint under the redress of complaints procedures. Conceivably he or she might be able to bring a claim if there is some sort of force used. The main remedy where nothing is seized and there is a feeling that something has been unfairly or improperly done would be redress of the complaint. This is in addition to making sure that evidence is not seized under this reserve power of the CO where a warrant would not have been granted in the first place. It has a limited supplementary purpose.

  108. Thank you very much. Can we move on to Clause 9?
  (Mr Miller) Clause 9 is really to reflect the arrangements in the civilian system, whereby a policeman has power to enter a premises and to search for someone whom he is going to arrest. The clause gives Service police a similar right of entry and search. The clause includes safeguards, which again reflect the practice in the Police and Criminal Evidence Act.

  109. Clause 10.
  (Mr Miller) Clause 10 allows a person who makes an arrest under the Service Discipline Acts to search the person he has arrested. The power is based on the civilian system and equally there are safeguards in here which reflect civilian practice.

  110. Can I ask how frequently you think this will be necessary and what the rank of the personnel involved in this is likely to be?
  (Mr Miller) I certainly do not have figures for the frequency. The need to enter property to make arrests arises quite regularly. Clearly the sort of situation that might arise would be if an absentee locks himself into his quarter or something like that. There are a number of fairly obvious situations which might arise. The rank of the individual making an arrest largely depends upon the rank of the individual being arrested. The practice is that we do not send somebody junior in rank to arrest an individual, we look to somebody of the same rank or senior rank.
  (Mr Morrison) There are also restrictions in the Service Discipline Act itself, that you can effect an arrest of people of different ranks.

Mr Davies

  111. In sub clause 11 of this clause there is a reference to something being other than an item subject to legal privilege. Are the items subject to legal privilege itemised somewhere? If not, what guidance can you give us about how this particular phrase will be interpreted?
  (Mr Morrison) This is a phrase which occurs in various parts of the law. It is basically aimed at protecting confidential correspondence between a person and their legal representatives. It occurs in places where there are similar restrictions on the seizure of items subject to the legal privilege of any single item, it might be a single letter or it might be a bundle of correspondence.

  112. Is this phrase, "Items subject to legal privilege" defined in PACE?
  (Mr Morrison) It is not defined in PACE, it is a well-known expression of law.

  113. It has an accepted common law meaning. There is no doubt as to what it means and what it covers and what it does not cover.
  (Mr Morrison) I need to correct myself on that. I am told there is a definition in PACE, which I had forgotten. If you go to Clause 16 there is a definition in PACE.

  114. Can you take us through it?
  (Mr Morrison) Items subject to legal privilege are defined in Clause 16(1) as the same meaning as in the 1984 Act.

  115. I evidently missed it, you obviously had as well. It makes me feel less guilty.
  (Mr Morrison) It is such a widely used expression.


  116. Can we move on to Clause 11?
  (Mr Miller) Clause 11 enables the Secretary of State to make orders equivalent to Sections 18 to 22 of the Police and Criminal Evidence Act. These deal with the entry and search of premises occupied by a person who has been arrested, and the seizure and retention of material found during searches. The point here, of course, is to make sure that the provisions work properly in a Service context. We may need to have relatively minor variations in the orders that are laid down.

Mr Keetch

  117. Again, I am eager to apply what we can, perhaps, now describe as the Kate Adie test to this in terms of how it might apply, and does it apply, to civilians that might be on board warships in a time of conflict or in terms of anywhere else, will they be in a situation whilst they are detained awaiting being charged that their quarters can be searched and seized?
  (Mr Morrison) Would you mind giving the example again?

  118. Would this apply to Brian Hanrahan covering the Falklands War?
  (Mr Morrison) This can only apply, if we go to each one, as far as the provision equivalent to Section 18 is concerned. It can only apply to a person in premises occupied or controlled by a person who has been arrested under the Services Act or the Service Discipline Acts and is being held in custody under those Acts. That is 11(1) and is restricted in that way. 11(2) deals with the other powers. This is defined by reference to premises. It allows him to make provision by order in relation to Service policemen on any premises in the exercise of power conferred by or under this part. We are looking at where the Service policemen can have powers under this part of the Act, which is basically Service accommodation. I do not know if that gives you what you need. It is slightly different as between Section 18, which relates specifically to the people who have been arrested, and 19 to 21, which relates basically to Service premises, if I can use that expression.

  119. That could include civilians who happen to be at sea or wherever, a journalist or one of us that happened to be detained and it could be searching our premises.
  (Mr Morrison) Section 19 itself relates back to what you can seize. Therefore, we have to see where we can have a power of seizure here. The power of seizure is limited by reference to Service offences under the Service Discipline Act. Broadly speaking, we are looking at offences committed by people subject to Service discipline.

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