Examination of Witnesses (Questions 120
THURSDAY 18 JANUARY 2001
120. Clause 12.
(Mr Miller) This Clause will allow the Secretary of
State to make regulations dealing with the disposal of property
which has been acquired by the Service police during the investigation
of an offence. It envisages that the Service court or judicial
officer may be empowered to order the return of the property to
the person appearing to be the owner or to order the disposal
of the property as they see fit if the owner cannot be found.
In addition many minor offences in the Armed Forces are dealt
with summarily by the commanding officer. Provision may also be
made in the regulations of commanding officers to determine to
whom the property is delivered, the property which has been seized,
in connection with that offence and for a right of appeal against
121. Mr Miller, with your considerable experience
of Whitehall you may agree with me, it is unfortunately a fact
that when a given ministry prepares legislation the officials
concerned have not in their own minds solved something and they
do not actually know what the solution is, either they have not
got around to it or they have not completed the process of consideration
or consultation. What they tend to do is put in a clause providing
that the Secretary of State will subsequently produce regulation.
That is both a lazy and a very unsatisfactory way of legislating.
I have to ask you why it is that you do not feel you can tell
us now specifically what these regulations ought to be. If you
can tell us now what they ought to be, why can they not be on
the face of the Bill?
(Mr Miller) Because we anticipate that we will need
to cover a lot of detailed ground in writing these regulations.
There is quite a wide range of circumstances with which we have
to deal. It seems to us that this is very much the sort of thing
which one would normally leave to be dealt with by regulation.
122. You are, again, falling into the bureaucratic
habit of giving a rather circular response to my questions. Since
this is the only opportunity to get it on the record for the benefit
of the public, who we represent, what is going to be the impact
of this Bill? Can you, perhaps, give us some concrete examples
of the wide range of circumstances to which you have just referred?
(Mr Miller) Yes. I will ask the legal adviser to talk
about it. The main circumstances you are going to run across are
clearly the simple ones, whether ownership of property is clear
and that it will be returned to the owner. There will be some
property in these circumstances, prohibited substances, for example,
that one would not return and the order given might be for destruction.
123. You offer us "a wide range".
(Mr Miller) I was going to let Mr Morrison do that.
(Mr Morrison) The wide range does not apply so much
to the type of property. The problem is more because of the wide
range of judicial proceedings. Many of the cases involving some
sort of stolen item will be dealt with by a commanding officer,
in others they will be dealt with by a court martial, which will
be an ad hoc body, which then ceases to exist immediately after.
It is for these reasons that it may be very difficult in practice
to have one single system, as applies in the civilian sector.
When you go a Magistrates' Court for an order under the Police
(Property) Act once the Magistrate has given his order that decides
the claim. If stolen goods have been found in a barracks and dealt
with summarily by the commanding officer, there may be several
complainants subject to the Service law or outsiders, perhaps
dependents, friends and family, something like that. It is not
an easy question to decide how a final decision should be made
in those circumstances as to legal entitlement of that property.
That is why we allow for two possible approaches, one a provisional
order by a commanding officer, which would not necessarily determine
the legal right. It would still be open to people to challenge
that in the courts. The other approach, which might be appropriate
for certain cases, would be for a decision by the court martial
or, perhaps, somebody else, which would be a legally binding decision.
124. We are talking about regulations which
make provisions with regard to the disposal of property which
has been taken from arrested people. We are not going to have
different regulations for each case, we are not going to produce
regulations ad hoc for each case. The regulations are going to
be set out, guiding principles which will determine the disposal
of this property. Why can we not have a guiding principle in Clause
(Mr Morrison) That is the problem of a guiding principle,
it is deciding what should be in the regulation and what the effect
of that decision will be. That is the difficulty.
125. Criteria for deciding on the fora, why
can those criteria not be in this clause?
(Mr Morrison) As I said, that has not been decided.
We have not decided what the appropriate fora will be.
126. My suspicion is confirmed, the reason why
we have secondary legislation rather than primary legislation,
and why Parliament is not able to see what the impact of the Bill
is in this case is simply because you, the MoD, the Ministry,
the bureaucracy, have not got around to completing your homework
on this. You do not know the answer yet. You are providing for
the answer to be subsequently included in regulations which you
(Mr Morrison) There is further discussion to take
place with the Services as to what they would consider the appropriate
fora to decide matters. There are some difficult issues still
127. Can I just clarify, what is the present
practice and why is this clause necessary? Given what you have
just said about the need for detailed further consideration, I
mean, what sort of timescale is that taking? My real question
is, why is this necessary? What has happened in the last five
years to make this clause necessary?
(Mr Miller) The present practice differs as between
the three Services. I think we should ask my Service colleagues
to describe what happens in each of their Services.
(Commodore Bryant) Simplistically these two will cover
most of this as far as the Navy is concerned and then a court
martial, a judge advocate, will make an order as to the disposal
of the property. In summary proceedings the commanding officer
will do so. That will probably cover 95 per cent. It is only a
small number when there are difficult articles concerned, as Mr
Morrison has suggested.
128. What is wrong with that? What is wrong
with the status quo?
(Mr Miller) My point is that we think it is not uniform.
We think there are advantages in uniformity and as Commodore Bryant
has said there are difficult cases, even in a Navy situation,
for which we will need to make provisions.
(Brigadier Nugent) In general in the Army property
is criminal property, particularly if it is secured by the Royal
Military Police, and disposal instructions are sought from our
G1 or personnel branch within the relevant formation headquarters
to dispose of property. That process can be lengthy, and if you
go around some of the units you might just see that our property
rooms in some areas are quite full. We welcome a clearer process.
129. Carrying on from that, to the Service personnel
here, you think the existing legislation is inadequate; is that
(Brigadier Nugent) My understanding is I do not think
there is any existing legislation to cover the disposal of the
property. I might be wrong.
130. The present state of affairs is unsatisfactory
and you would like it changed?
(Brigadier Nugent) Yes. It would be easier if there
was a standard system.
(Air Commodore Charles) If I may, what we are looking
for is some form of certainty so those who have to make the decisions,
whether they be a senior police officer or a commanding officer,
have some basis upon which to make it. At the moment the practice
appears to work in the majority of cases, they are rarely challenged,
but certain concerns have been expressed to me by commanding officers.
131. The current practice could be enshrined
in legislation but Mr Miller will say that we have not worked
it out yet because we want to get a tri-Service approach, even
though we are not having a Tri-Service Bill for another five years,
allegedly. If you say you want a bit of certainty, if those current
practices were enshrined rather than allowing clauses to say that
secondary legislation could be brought in at any date, without
any powers and without us knowing anything about them
(Air Commodore Charles) That would be a very useful
starting point for any regulation.
132. If I can go to Mr Morrison and ask why
it was decided not to do that at this stage, bearing in mind all
of the arguments you gave why we could not have a tri-Service
in place for such a long time. Why is it on this particular issue
it was decided to leave it for laterwe will come back to
that when we are ready for it?
(Mr Miller) Because we saw this as an opportunity
to produce a single tri-Service policy in a relatively restricted
area. If we were going to have to write clauses it seemed to us
more sensible to do so producing a common policy.
133. What sort of timescale do you think you
would have for bringing this in?
(Mr Miller) For bringing this in? It seemed to us
that given the need for some certainty that the easiest and most
sensible way forward was to produce a clause which would give
us the cover for a common policy which would apply across the
board and have the advantage that individual servicemen are not
treated differently because they happen to be in a different service.
134. That exists in other areas.
(Mr Miller) This is something that we can change in
135. I would slightly dispute it when you said
that it is the easiest thing to do, because I do not think it
is the easiest thing to do, because you have not done it. The
easiest thing to do is enshrine the current practice in the legislation.
(Mr Miller) We have not defined and agreed with our
Service colleagues the detail of what is to go into the regulations.
We expect to be able to do it in the timescale.
136. That timescale being?
(Mr Miller) It is the intention to bring this in with
the rest of the Bill.
(Mr Morrison) One of the reasons it has to be closely
related to the introduction of all these PACE provisions is that
the main reason for putting this provision in is that for the
first time statute actually gives Service police the power of
seizure. In PACE itself there is reference across to the disposal
of property under the Police (Property) Act. In providing specifically
for the first time the right of seizure we felt it was also right
to put in place, whether on a tri-Service basis or otherwise,
provision which would give a regime which determined what happened
legally to property on disposal. There are various practices in
existence and they have no statutory basis.
137. From what you are saying, do you expect
government amendments to be brought in to clear this one up before
the Bill is enacted?
(Mr Miller) No. I hope I did not give you that impression.
Our intention is to write it in the regulations, which will enable
us to implement this within 12 months of Royal Assent.
138. It is being currently worked on.
(Mr Miller) Yes.
139. It would be difficult to bring it into
the Bill, it is a bit complicated.
(Mr Miller) There is work going on and we recognise
the regulations have to be ready when we implement the Bill.