Select Committee on Armed Forces Minutes of Evidence

Examination of Witness (Questions 540 - 559)



  540. We have already come across this difference between Scottish law and English law. Would you say there could be a potential problem if MoD police officers are being moved around the country, if they would have to be fully trained in Scottish law regarding police powers?
  (Mr McKerracher) That is the same for any officer. With officers transferring from any of the 43 English forces to Scotland they go through training.

  541. Except this is one police force; this is not transferring from one to another. They could be told to go from A to B?
  (Mr McKerracher) I am assured that the Ministry of Defence Police are already aware of that, and currently they do go through an awareness training session which brings them up-to-date with the differences.

  542. Do you think there would be any merit in having a separate Scottish MoD Police Force?
  (Mr McKerracher) I do not know.

  543. Getting back to what Ms Taylor was saying—in the letter from Sir Roy Cameron it said: "In conclusion the Association remains of the view that it is extremely important that any extension of jurisdiction and powers is properly managed and controlled to prevent a situation where we have various forces empowered . . . leading to considerable confusion, ambiguity and different working practices which will undoubtedly impact on service delivery to the public". Where would your Association like to see this Bill making sure that this extension of jurisdiction of power is properly managed and controlled? Obviously there is a concern there that has to be looked at. I think we can all understand that. Where precisely do you feel that the Bill, as currently drafted, should be looked at to make sure that is okay?
  (Mr McKerracher) I think the Association is saying that the draft of the Bill we have seen makes us reasonably comfortable with the Bill; and what we are saying is that the Bill will clarify certain aspects for us. I have already said this and will rehearse it one more time: it is what happens beyond the initial public and police contact that we have to be clear and sure that the rules are not confused and there is no ambiguity; because that in itself will allow us both to offer the public the quality of service that Sir Roy Cameron points to.

  544. I do understand that and I am sorry to go on but it is obviously very germane to this particular part of our evidence. It is not what is in, it is what is not in; that you think there could be some foul-up and to make sure that further process you have just described should be further clarified or not? Or do you think that should be down to individual forces as a protocol?
  (Mr McKerracher) I think we are saying that should be down to individual forces as a protocol.

Mr Davies

  545. Have you read the testimony provided to us last week by Mr Comben on behalf of the Ministry of Defence Police?
  (Mr McKerracher) I have read some of it. I only got it last night and tried to read it last night and on the plane here.

  546. I wonder whether, when you did look at it, you noticed there was rather a stark contrast, not to say discrepancy, between your view of the powers, and indeed potential powers, of the Ministry of Defence Police and their own? Did you notice that?
  (Mr McKerracher) In what regard?

  547. In answer to one of my colleagues this morning when asked what sort of offences the Ministry of Defence Police investigate you said you did not think they would investigate any offences. Mr Comben gave us evidence the other day and I refer to Question 437 in which he says: ". . . provided domestic burglary is clearly within the MoD estate we deal with those routinely and in terms of sexual offences if they are limited to the MoD estate and we have the technical ability to support such an investigation then we will deal with those as well". In Question 435 he said they deal regularly with burglary and with murder: "I can imagine circumstances where it would be something that we would normally want to deal with . . .". It is a very different perception of the powers of the Ministry of Defence Police, or what ought to be the powers of the Ministry Defence Police, and your own perception, is it not?
  (Mr McKerracher) I said I did not think they would investigate any offence within our civilian policing area; and I do not think they would. However, within the estate of the Ministry of Defence then they will investigate, and I did say, a minor crime like theft or burglary. When it comes to murder, any murder, sudden or suspicious death the civil police I think you would find would have the primacy there.

  548. Mr Comben did say that the civilian Chief Constable had the right to determine who would investigate that; but he also said that it might well be he would prefer that the Ministry of Defence Police investigate it—similarly with serious matters, and I have quoted burglary, sexual offences, not minor crimes at all. Mr Comben has no doubt at all about the ability of his men or women to deal with those offences in agreement with the civilian Chief Constable, and the appropriateness in some circumstances of taking those cases on. You obviously do not share that view?
  (Mr McKerracher) I think our practice in Scotland is that they do not investigate those particular offences. It is not because we would consider an incompetence on the part of the Ministry of Defence. It is about efficiency and effectiveness; and it is about the fact that these issues do not happen in isolation very often. One house breaking, or burglary as you call it, may be one of a spate of 20, so obviously if we are dealing with this it is much more effective for us to run with the whole thing.

  549. I am not challenging at all your rationale for taking the view you do; I am just trying to establish that there is a contrast or discrepancy between your perception and that of the Ministry of Defence Police. I might add, although I did not use the word `incompetent', you did use the word acting `inappropriately' as being something you feared the Ministry of Defence Police might do if they got involved in certain types of crime.
  (Mr McKerracher) Inappropriately in relation to what our own forces would do in a particular circumstance. We do not deal with issues like drugs, domestic violence or a whole range of issues in isolation; we look at them strategically and we have in place policy and strategy that seeks to ensure the best quality of service to the public. What I have said quite clearly is, should the Bill be passed and should we then find that our colleagues in the Ministry of Defence would have the ability to take their jurisdiction beyond the boundary and into the civil police area, then what we would do is certainly sit and talk about an awful lot of issues; because there may be occasions when we would call on them to use their expertise (which they have in particular areas) to help us solve a problem. That would be a very positive situation.

  550. I have two more questions. My first question arises from what you have just said to us in answer to my last question. The importance of these protocols is going to be even greater when the statute law, under which you and the Ministry of Defence Police are operating which defines the MDP jurisdiction, is changed to give the Ministry of Defence Police greater powers?
  (Mr McKerracher) Absolutely. That would have to be very clearly defined, and very clearly understood by both parties and that would be right.

  551. Finally, the basis on which those protocols are going to be negotiated will be changed. The Ministry of Defence Police will have greater bargaining power and arrive with greater statutory jurisdiction and scope provided for them. They will be more equal partners with you in negotiating that protocol. Whereas at the moment the protocol very much depends on what you are prepared to concede to them?
  (Mr McKerracher) Yes, the negotiations would be far more in-depth and far more wide-reaching. However, I do not necessarily see the final outcome that the civil police would hand over huge areas of their business in terms of the Ministry of Defence Police role. I think we would work very closely together at times, but not all the time; that would be an effective way to deal with a particular instance.

  552. You have made it very clear you hope the new situation would not result in the Ministry of Defence Police having much greater powers.
  (Mr McKerracher) That is not what I have said.

Mr Key

  553. We have been told that the Ministry of Defence expects that there will be standing arrangements at a high level between Home Office Forces and Scottish Office Forces and the Ministry of Defence Police. Do you think that refers to just the Protocol you have been describing, or is there going to be some different kind of standing arrangement under which Ministry of Defence Police will be expected to undertake routine policing matters?
  (Mr McKerracher) In relation to the Protocols, I do not think that the Ministry of Defence Police will be expected to take a greater role in policing matters.

  554. Forgive my ignorance, but it is over 30 years since I lived in Scotland. Does the Police and Criminal Evidence Act 1984 apply in Scotland in the same way as it does in England?
  (Mr McKerracher) No.

  555. It has equivalent legislation, for example, Schedule 1, which is important, about how police officers behave and so on in relation to cases.
  (Mr McKerracher) The Police Scotland Act 1967. We have some aspects of that and the Criminal Procedures (Scotland) Act as well.

  556. This is very important because as part of the extension of the jurisdiction, the Police and Criminal Evidence Act 1984 (PACE) will be applied fair and square to the Ministry of Defence. This has been a grey and difficult area, so this is welcome tidying up. However, it effectively gives the Ministry of Defence more regularised jurisdiction in England and Wales, and therefore I assume that it will also apply in Scotland. For example, they could undertake investigation into any crime under certain circumstances. They are not actually debarred from any investigation.
  (Mr McKerracher) I have to be frank and say that PACE is not an Act with which we are particularly familiar. So I do not know how that would impact. It does not apply north of the border.

  557. I am not a lawyer so I can share that perspective. You have clearly described that you anticipate that the Ministry of Defence police would not investigate serious crime. You cited murder which is often used as an example to the Committee. However, we always return to the problem of what is serious. It is not petty burglary in married quarters estates. Would you expect the Ministry of Defence police to investigate possible crime under the Official Secrets Act?
  (Mr McKerracher) Perhaps I can take that slightly wider. Where the Ministry of Defence police have a locus and they have an expertise and an involvement in any crime, we would expect them, currently and in the future, to carry that investigation as far as they can. In using their expertise in that situation, it is not dissimilar from using the expertise of anybody in any investigation. Ultimately, the person who draws that all together and reports it to the Procurator Fiscal in Scotland invariably is a police officer from one of the civil forces. It may be that in investigating a burglary the Ministry of Defence police could take that some way down the road to the report to the Procurator Fiscal, but they may not take it the full way. That may happen currently. I cannot give you examples or a specific answer to that because I am not sure how that Protocol would work on a practical level between the two sets of officers. However, in terms of the Official Secrets Act, it may be that they have better expertise and experience than we have in that situation and it would be logical, efficient and effective for that to happen. I am not sure whether that is the case at present.

  558. In Scotland can a police officer who has been sent to investigate a crime in someone's home that may be connected to a firearms offence, for example, with a warrant to search a house for a shot gun, and he then discovers another crime in the course of the investigation, can he pursue the second crime?
  (Mr McKerracher) Yes, he can. He would have to get a further warrant and he may have to stop the investigation at that point to seek another warrant, but he can carry on and preserve the evidence until another warrant has been issued.

  559. This is quite important. I shall pursue it with ACPO England, if I may. I understand that there is an extension to the Ministry of Defence police powers under the Police and Criminal Evidence Act that will give them that additional power to do exactly that. There have been some high profile cases on it. I am grateful to you for clearing up that. Going back to Faslane, I have been concerned to discover who has the power to search contractors' vehicles that go in and out of Faslane, or indeed anywhere else. As I understand it, Ministry of Defence police operating in Kosovo—we have a memorandum from the Ministry of Defence saying this— do not have the power to search contractors' vehicles in Kosovo. Therefore, I wondered whether they have such a power at Faslane, where there have been some fairly notorious incidents in recent months.
  (Mr McKerracher) They have control of the gates into Faslane. That is not a civil police locus. I have not been the commander at Faslane, but my understanding from the commander is that it would be Ministry of Defence personnel who would deal with anything that goes into the base and the line is drawn at that gate in terms of who deals with what.

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