Examination of Witnesses (Questions 100
THURSDAY 18 JANUARY 2001
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.
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.
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.
104. To clarify that, in answer to a question
from me Commodore Bryant said they are being used and used very
(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
(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
(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
(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.
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.
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
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.