Select Committee on Armed Forces Minutes of Evidence

Examination of Witnesses (Questions 120 - 139)




  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 such decisions.

Mr Davies

  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 12?
  (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 will draft.
  (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 under discussion.


  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.

Mr Davies

  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.

Mr Randall

  129. Carrying on from that, to the Service personnel here, you think the existing legislation is inadequate; is that correct?
  (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 later—we 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 the timescale.

  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.

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