APPENDIX 6
Supplementary memorandum submitted by
the Ministry of Defence
The Committee asked for an indication of the present
and future numbers in various bodies
The following table provides information about
the strengths in 2001 of the bodies listed and such information
as is available about their strengths in 2005:
| | 2001
| 2005 |
| Police forces |
| Ministry of Defence Police | 3,443
| c 3000 |
| Royal Navy Regulating Branch | 315
| No significant changes expected
|
| Royal Marines Police | 50
| 50 |
| Royal Military Police | 2,136
| No significant changes expected
|
| Royal Air Force Police[26]
| 2,533 | 2,415
|
| Non-police services |
| Military Provost Guard Service | 329
| 817 |
| Ministry of Defence Guard Service | 3,911
| 3,000 to 4,000 |
The Committee asked for further information on our powers to
stop and search contractors vehicles in Kosovo
Civilian contractors working for the Ministry of Defence
in Kosovo are not subject to the Service discipline Acts.
Contractors seeking to enter a Service establishment in Kosovo
may be searched both upon entry and on exit with consent. Should
the contractor refuse to consent to the search of himself or his
vehicle on entering an establishment, permission to enter can
be refused. If a search is considered necessary on exit, for example
because there are reasonable grounds for suspecting that the contractor
has stolen articles in his vehicle, a search may not be carried
out by Service police or other personnel without consent—this
is the position currently and clauses 2 and 4 will not alter this
because the powers in the Bill will only be exercisable in relation
to persons subject to the Service discipline Acts.
However, if there is suspicion that a contractor may have
stolen goods or other articles about his person or in his vehicle,
the Services may call in law enforcement authorities who do have
the jurisdiction to deal with contractors. In this case, it would
be the police force currently exercising power under the authority
of the United Nations Mission in Kosovo (UNMIK).
UNMIK are also the appropriate law enforcement agency for
the prosecution of offences and would be responsible for trying
a contractor.
The general background is that contractors do not have any
special status or immunity in Kosovo, other than that granted
by UNMIK Regulation 2000/47. In summary, it provides that civilian
contractors are not subject to local jurisdiction for disputes
arising from their contract with KFOR, in respect of licensing
and registration of businesses and in respect of acts performed
by them within their official activities pursuant to a contract
with KFOR. However, the Regulation does provide that immunity
may be waived by the commander of the national element to which
they are contracted if it is in the interests of justice. The
Regulation reflects the various principles dealing with jurisdiction
for persons operating in Kosovo under the aegis of KFOR which
were agreed by UNMIK and KFOR in early 2000.
The Committee asked for more information about "journalistic
materials" under the Police and Criminal Evidence Act 1984
(PACE)
1. The Committee were considering the meaning of "journalistic
materials". That term is defined in section 13 of PACE and
it will have the same meaning under clause 6 of the Armed Forces
Bill, ie. "material acquired or created for the purposes
of journalism". We are not aware of any judicial decisions
on the meaning of "materials" in section 13. We would
expect it to be given a broad, interpretation, as it is likely
that the courts would wish to ensure that the extra protections
which apply to such material under PACE Schedule 1 would be available.
There can be little doubt that it would cover notes, records,
correspondence and photographs. The view has also been expressed
that "journalism", though not defined, "includes
any form of publication. It is not confined to publication for
reward nor to full-time or even professional journalists"
(Professor Michael Zander's "The Police and Criminal Evidence
Act 1984", 3rd Edition at page 41). This breadth of meaning
ensures that a wide range of materials benefit from the tighter
requirements for a warrant under PACE Schedule 1.
2. For the purposes of PACE, however, the material must
be in the possession of someone who acquired or created it for
the purposes of journalism. This limits the power to persons involved
in the process of journalism. PACE Schedule 1 would therefore
protect material passed by a journalist to his superiors. Generally,
therefore, the protections would not apply to material held by
a person who was not involved in journalism. Most obviously, they
would not apply to an application for a warrant to search for
journalistic materials which had been stolen from a journalist.
An exception is provided under section 13(3) of PACE, so that
Schedule 1 does apply where a person receives material from someone
who intends the recipient to use that material for journalism.
3. The intention in clause 6 is to provide powers to
be able to deal with cases where certain types of material may
be required as evidence by the Service police in the course of
investigations into offences committed under the Service discipline
Acts.
4. The starting point for the application of the PACE
provisions concerned is that at present the relevant powers of
the Service police are not defined in legislation. In particular
there is no requirement for them to obtain warrants to search,
and there are no special provisions, such as those in Schedule
1 of PACE, to give special safeguards where they need to search
for sensitive materials. As the Committee is aware, the intention
in Part II of the Bill is to replace this absence of clear provision
with a PACE-based regime for investigations by the Service police
of offences committed under the Service discipline Acts by people
subject to those Acts. This is to include a need to obtain warrants
prior to searches of the living accommodation of people subject
to those Acts. The requirement to obtain a warrant is a safeguard
in relation to the exercise of police powers, and Schedule 1 of
PACE provides for additional safeguards where the evidence sought
by the police falls into certain sensitive categories: these are
"excluded" and "special procedure" material.
PACE Schedule 1 provides a different level of extra protection
for each of these categories. In neither case can an ordinary
search warrant be obtained.
5. "Excluded materials" are:
— personal records, especially those relating to
health;
— human tissue or tissue liquid taken for medical
reasons and held under a duty of confidence or secrecy;
— journalistic materials which are in the form of
records or documents and which are held in confidence.
6. "Special procedure materials" are:
— other journalistic material;
— other material held under a duty of confidence
or secrecy.
7. Clause 6 of the Bill is seeking to reflect as far
as possible the PACE regime for materials in these categories
in the procedures for the Service police. A difference is that,
although a warrant for excluded or special procedure materials
under PACE is issued by a circuit judge, such a warrant under
the proposals in the Bill would be issued by a judicial officer,
because there is no equivalent to a circuit judge in the Services'
systems. However, the judicial officer would be expected to apply
the same tests as a circuit judge in deciding whether or not to
issue a warrant .
8. Under PACE Schedule 1, different procedures apply
depending on the type of "journalistic material":
— journalistic material which is in the form of
documents or records and which is held under an obligation of
confidentiality is "excluded material" under section
11. The circumstances in which an application can be granted for
excluded material are limited under Schedule 1 to those which
existed under Acts passed before the creation of general powers
in PACE. The overall effect is that both the general requirements
of PACE for a warrant, and any additional requirement under the
relevant, earlier legislation must be met;
— any journalistic material other than excluded
material is "special procedure material" under section
14. The requirements for a warrant are also stated in Schedule
1. Apart from the need for application to a circuit judge, they
include that there should be reasonable grounds that the evidence
is of substantial value as to a serious offence; that other methods
of obtaining the material have been tried without success or would
be bound to fail; and that "it is in the public interest",
having regard to the benefit likely to accrue if the material
is obtained and the circumstances under which the material is
held.
9. Case law has established that there must be full disclosure
by the applicant of any material adverse to the application. The
courts have also established that in relation to an application
for a warrant for either category of material, the courts must
be scrupulous in ensuring that the procedure is not abused.
10. It is not possible to preclude the possibility of
journalistic material being required in the course of an investigation
into an offence by the Service police, although it is considered
unlikely. The role of the Service police (ie the Royal Navy Regulating
Branch and the Royal Marines, Royal Military and Royal Air Force
police) is limited to the investigation of offences under the
Service discipline Acts. Clause 6 will ensure that there are safeguards
in place that are as far as possible the same as those in the
civilian legislation, to ensure that the Service police do not
seize such material inappropriately.
11. It is important to bear in mind that the Service
police would only be able to seek a warrant under clause 6 in
relation to "relevant residential premises", ie accommodation
occupied by someone subject to the Service discipline Acts. A
journalist accompanying UK forces on operations might be subject
to the Acts. If it were considered necessary by the Service police
investigating an offence to obtain journalistic materials from
the individual concerned, then the safeguards involved in the
procedures to be prescribed under clause 6 would apply.
12. Finally, as a point of clarification, neither this
clause nor the other draft provisions in Part II of the Bill are
concerned with the powers of the Ministry of Defence Police who,
like other civilian police forces, conduct investigations in accordance
with the Police and Criminal Evidence Act 1984 (PACE). The Ministry
of Defence Police therefore already have the relevant powers under
PACE.
The Committee asked about the relationship between the wording
of the proposed section 101A(1)(c) of the Army Act 1955 and the
corresponding civilian legislation
1. The proposed section 101A(1)(c ) in clause 25 of the
Bill provides that the person issuing a warrant to arrest under
that section has to be satisfied that:
"it is probable that a summons requiring him to attend
the court to give evidence or to produce the document or other
thing would not procure his attendance".
2. The Committee wished to know whether the wording of
this requirement was the same as that in the legislation relating
to civilian courts which it intended to reflect. The relevant
provision is section 97(2) of the Magistrates' Courts Act 1980.
The wording of the requirement there is that the relevant person
(in that case a magistrate) must be satisfied that:
"it is probable that a summons under that subsection
would not procure the attendance of the person in question".
3. The subsection referred to in the 1980 Act is section
97(1); a summons under that subsection is a "summons requiring
him to attend before the court at the time and place appointed
in the summons to give evidence or to produce the document or
thing."
4. In both cases therefore the person issuing the warrant
has to be satisfied on the same point.
5. Concern was expressed about the width of the power,
but it needs to be read in conjunction with the immediately preceding
subsections. Thus the person issuing a warrant must be satisfied
on certain other points, in particular that the person to be arrested
is likely to able to give or produce material evidence; and that
the person "will not voluntarily attend as a witness or produce
the document or thing" (proposed sections 101A(1)(a) and
(b), which follow section 97(1) of the Magistrates' Courts Act
1980).
The Committee asked about developments in the Ministry of Defence
Police since 1987
1. The Committee wished to know how the numbers and ranks
of officers in the MDP had changed since 1987 (when the Ministry
of Defence Police Act was passed), with particular reference to
the CID. The figures, which relate to complement with actual strengths
in brackets, are as follows:
| | December 1987
| January 2001 |
| Chief Constable | 1 (1)
| 1 (1) |
| Deputy CC | 1 (1)
| 1 (1) |
| Asst CC | 5 (5)
| 3 (3) |
| Chief Superintendent | 10 (9)
| 4 (4) |
| Superintendent | 26 (25)
| 24 (28) |
| Chief Inspector | 52 (49)
| 58 (59) |
| Inspector | 180 (173)
| 123 (112) |
| Sergeant | 707 (698)
| 585 (557) |
| Constable | 4,019 (3,880)
| 2,830 (2,678) |
| Total | 5,001 (4,841)
| 3,629 (3,443) |
The CID had a complement of 137 in 1987, and 167 in 2001.
All but five of the increase are accounted for by growth in the
Fraud Squad.
RESPONSIBILITIES OF
THE MDP
2. During the Second Reading debate on the 1987 Bill,
the Parliamentary Under Secretary of State for Defence Procurement
made clear that the Home Department police had prime responsibility
for the enforcement of the law (col 277) but that the MDP was
formally responsible for policing MoD establishments in the UK
(col 278). He referred several times to the need for collaboration
and co-operation between the MDP and Home Department Forces. He
also envisaged that serious crimes such as murder and rape would
be handed over to the Home Department Force.
3. These principles remain valid. As the experience and
expertise of the MoD Police have grown since 1987, however, there
has been some shift of emphasis in the handling of cases over
which both the MDP and the relevant Home Department Force have
jurisdiction, reflected in Home Office Circular 17/1999 (and its
equivalents in Scotland and Northern Ireland). This restates the
principle that primary responsibility for the maintenance and
enforcement of the criminal law rests with the local Chief Constables.
Subject to that it allocates responsibility for the investigation
of criminal offences committed within the jurisdiction afforded
by the 1987 Act to the Chief Constable of the MDP, but goes on
to provide that in relation to any crime or suspected crime of
terrorism or incident involving sudden death, the MDP will take
any immediate action necessary whilst simultaneously informing
the local Chief Constable; thereafter the local Chief Constable
will determine how the investigation should proceed in consultation
with the Chief Constable of the MDP. It restates the importance
of mutual support and liaison, and lists the circumstances in
which MDP officers will consult the local Force or notify them
of their actions. The document was agreed by the Home Office,
the Association of Chief Police Officers and the MoD Police. It
is working out very well on the ground, where a high degree of
co-operation and a common-sense approach to the allocation of
responsibility prevails.
The Committee asked for examples of cases illustrating the
need for enhancement to availability of police powers for the
MDP
The changes to the availability of police powers to the MDP
in clause 31 of the Bill are for the most part activated only
by a request for assistance by a Home Department Force or officer,
or are to support MDP's ability to police the defence estate and
community (offences against defence personnel). The exception
is the power to act in an emergency in certain closely defined
circumstances. The ten cases attached, which are representative
but not exhaustive, and which all occurred during the last five
years, illustrate the sort of circumstances which cause difficulty
for MDP officers under present circumstances. The public have
a right to expect that in an emergency someone who appears to
be (and is) a police officer will act accordingly and have authority
to do so.
CASE 1
Whilst on a duty patrol in a marked Police vehicle on a public
road, an MDP officer stopped at a set of red traffic lights, where
he noticed a man standing at the driver's door of the vehicle
at the front of the queue, waiting for the lights to change to
green. The man was leaning through the open window of the car
and appeared to be struggling with the driver. At this point the
lights turned green and the vehicle remained stationary, blocking
the rest of the traffic. The MDP officer attended the scene and
was informed by the man outside the vehicle that he had seen the
driver of the vehicle collide with a number of parked vehicles
and that he believed the driver to be under the influence of alcohol;
therefore he was trying to seize the keys of the vehicle. The
MDP officer noted the smell of alcohol on the driver's breath
and also noticed human excrement all over the driver's seat. The
vehicle keys were seized by the MDP officer and immediate assistance
requested from Devon & Cornwall Police. The driver was arrested
by Devon & Cornwall Police following a positive breath test
and charged with driving whilst unfit and criminal damage to a
number of parked vehicles.
DISCUSSION
The MDP officer saw an altercation taking place which clearly
required some action. As a police officer in uniform, in a marked
police car, a strong public expectation was present for the MDP
officer to take action. The fact is that up until the point when
the officer made the radio call to Devon & Cornwall Constabulary,
he was acting under no police authority whatsoever. This incident
could conceivably have developed differently. If the driver of
the car had tried to drive off, the MDP officer would undoubtedly
have felt a duty to try to prevent that. However, he would have
no police powers to do so at that point and any actions taken
could be called into question by the courts or the defence.
This is a good example of an incident developing quickly
where the MDP notification to the local force has been momentarily
delayed, leading to a legal gap in the ability of the officer
to act.
CASE 2
Whilst travelling in a marked police vehicle on the A38,
an MDP officer noticed two vehicles straddling the white lines
on the centre of the road, blocking all oncoming traffic. As the
officer approached the vehicles he saw two males fighting in the
road. One of the males asked the MDP officer for assistance, stating
that both vehicles belonged to him and that he had caught a 15
year old male driving his vehicle without permission. The MDP
officer detained the juvenile and moved him to the side of the
road. He instructed the other male to remove the vehicles to a
safe location and call 999 for assistance. Whilst awaiting the
arrival of the local police the juvenile attempted to escape and
struggled with the MDP officer. By this time a large crowd of
onlookers had gathered and became hostile and abusive to the MDP
officer. After approximately 15 minutes there was no response
from the local police, and the officer dialled 999 whilst holding
onto the juvenile, who continued to struggle. The local police
arrived five minutes later. The juvenile was taken into custody
by Avon & Somerset Constabulary and was charged and put before
court the following day.
DISCUSSION
This is an example of a fast moving situation where the MDP
officer saw an urgent need to take action but was undoubtedly
exposed in legal terms. In this case, the MDP officer initially
asked a member of the public to make a 999 call whilst the MDP
officer physically detained the juvenile. This could well have
been a false arrest by the MDP officer, because he had received
no request for assistance from the local force. Again a public
expectation existed for the MDP officer to act. Instances such
as this which involve a degree of potential violence against an
MDP officer whilst "jurisdictionally exposed" could
create grave difficulties if an officer received a debilitating
injury, as there is real doubt as to whether he was actually acting
"on duty" at the time.
CASE 3
Whilst carrying out anti-terrorist patrols around the exterior
of an MoD establishment, MDP officers observed a vehicle exiting
a public house car park. The vehicle was being driven erratically,
leading to the suspicion of the driver being under the influence
of alcohol. The MDP officers contacted West Mercia police to report
their suspicions. Before the radio request was completed the vehicle
was involved in a serious road accident. The driver was given
First Aid by MDP officers at the scene, but subsequently died
in hospital. The MDP officers did not attempt to stop the vehicle
because the vehicle was travelling on a public road outwith their
jurisdiction and the accident occurred prior to a request from
West Mercia police to deal with the situation.
DISCUSSION
The MDP officers dealt with this incident exactly as they
should have. They had no powers to stop the vehicle unless requested
to do so by the local force, which would then offer the MDP officers
a degree of protection under section 2(2)(d) of the Ministry of
Defence Police Act 1987. If the MDP officers had had the ability
to act right at the outset of this incident by stopping the vehicle
at a very early stage, the incident may have had a less serious
outcome. Even if a member of the public had approached the MDP
officers prior to the driver of the vehicle attempting to actually
drive the car and informed them that the driver was unfit through
drink, there would still have been a legal gap in the powers of
the MDP officers to act to prevent the offence without prior discussion
with the local force.
CASE 4
Whilst on a duty mobile patrol at approximately 03:30 hours
on Upper Thames Street, London, in a marked police vehicle, two
MDP officers observed a lone female motorist attempting to change
a blown tyre on her motor vehicle. In an effort to assist, the
officers attempted to change the wheel and in doing so became
aware that the female may have been under the influence of alcohol.
On that basis they informed her of their suspicions and advised
her not to drive. The officers then left to continue their patrol
of Crown property. Some time later the officers witnessed the
female driving the vehicle along Upper Thames Street towards the
City of London. The vehicle was subsequently stopped by the MDP,
and the City of London Police were contacted and asked to attend.
On arrival the City of London officers requested that the MDP
officers deal with the incident. The female then gave a positive
specimen of breath. She was subsequently arrested by the MDP officers
and conveyed to Bishopsgate police station where, after further
police procedures, she was subsequently charged. When the case
came to Court, the Stipendiary Magistrates ruled that the arrest
by the MDP officer was unlawful, despite being in good faith.
DISCUSSION
The MDP officers felt that knowing the driver had been drinking,
that she was a danger to herself and to other road users and that
they, like every other police officer, having been sworn-in before
a Magistrate, had a duty to protect life and property. They had
no direct radio contact with the City of London police and believed
that immediate police action was required to prevent possible
injury or loss of life. In his summing up, Counsel for the defence
said, "there was no doubt that the MDP officers acted in
good faith, from their first contact with the defendant until
her eventual arrest. However, they were no more than civilians
in police uniform when they arrested the defendant." This
case highlights the fundamental gap in MDP's ability to act in
circumstances where it is not practical, because of the urgency
of the situation, to wait for the local police to request MDP
to deal using the current Section 2(2)(d). If the MDP officers
had done nothing or delayed their actions, the outcome could have
been quite different.
CASE 5
Officers on duty at MDP Whitehall were called to a disturbance
outside the Ministry of Agriculture, Fisheries and Food (MAFF)
building, Whitehall by the driver of a London Transport bus. Three
persons had got onto the bus and created a disturbance. Alcohol
was involved. The driver had requested MDP to remove all three
individuals from the bus. The MDP officers in attendance tried
to persuade them to get off the bus, but they refused. They where
given further warnings that if they persisted in refusing to get
off the bus they may be arrested, but these warnings were met
with further outbursts of abusive language as they became more
and more aggressive. All three were subsequently arrested by MDP
for Public Order offences during which one of them had to be restrained
following an assault on one of the MDP officers. All were given
official police cautions for using threatening and abusive behaviour
contrary to section 5 Public Order Act 1986.
DISCUSSION
This is an example of an occasion where MDP officers have
been asked to go to the assistance of a member of the public,
on this occasion a bus driver. A relatively straightforward incident
quickly developed into a serious public order incident. There
was insufficient time to seek the assistance of the Metropolitan
Police and it resulted in an MDP officer being seriously assaulted.
The MDP officers had no jurisdiction to act under the Ministry
of Defence Police Act. The assault on the MDP officer should,
in principle, have been caught by the offence of assaulting a
constable in the execution of his duties. However, taking MDP's
jurisdiction as it stands, the MDP had no duty to act, despite
the obvious and potentially very damaging public reaction that
would no doubt occur if the MoD's police force had simply walked
away from the incident.
CASE 6
Two MDP CID officers who were attending Crown Court in Exeter
observed a man with a female child in Exeter City. The adult fitted
the description of a man wanted by police in connection with the
abduction of a female child. The officers did not have any means
of contacting the local police to inform them of the situation
so, fearing that the man and the child would disappear, the officers
detained both adult and child, carrying out a citizen's arrest
on the man.
DISCUSSION
This particular incident, because it involved the abduction
of a minor, attracted a vast amount of national media attention,
and every police force in the country had been alerted. The MDP
officers had no powers to act under the Ministry of Defence Police
Act 1987 and therefore acted correctly by utilising the powers
available to them under section 24(3) of the Police and Criminal
Evidence Act 1984. However, as they were, in effect, acting as
"any person" and not as police officers, they were under
no duty or legal obligation to act. If the officers had wanted,
for any reason, to ignore their suspicions, they could quite legitimately
have walked away from the incident without any fear of disciplinary
action. Two police officers, engaged on their MDP duty, had no
wider duty to protect the abducted child. If the officers had
not acted as they did and the child had been harmed, the public
outcry would have undoubtedly been considerable. If, however,
they had innocently made a wrong identification or it was subsequently
proved the man had committed no offence, then even the citizen's
arrest would have been unlawful.
CASE 7
Whilst travelling between MoD locations in London, MDP officers
observed a private vehicle which was stationary outside an Esso
fuel station. The vehicle was seen to be on fire with flames coming
from the underside of the engine. The driver of the vehicle refused
to get out of the car and it was necessary for the MDP officers
to forcibly remove him. One of the MDP officers instructed the
garage staff to turn off the fuel supply to the pumps. Seconds
later the vehicle exploded. The MDP officers took control of the
scene until the arrival of the Metropolitan police.
DISCUSSION
MDP officers came across a life threatening situation which
called for instant action given the circumstances. They acted
with great speed to prevent the fire in the car spreading to the
petrol station. Their forced removal of the car driver was outside
their jurisdiction even though there was a clear emergency, leading
almost immediately to the vehicle explosion. The MDP officers
carried out a commendable act in support of the public good, but
because the speed of events denied them the opportunity to first
notify the local force, their actions were not covered by the
Ministry of Defence Police Act, thus exposing the officers and
the MoD to risk of legal action for their forcible removal of
the driver. It is also the case that the MDP officers did not
have the legal authority to actually stop traffic approaching
the danger scene, even though the developing emergency made that
an essential action.
CASE 8
An MDP patrol vehicle was in transit between MoD sites in
Southampton in the early hours of a Saturday morning. On approaching
a roundabout, situated on a main dual carriageway, another vehicle
overtook the police vehicle at high speed and immediately veered
in front of it causing the police driver to take immediate evasive
action to avoid a collision. The MDP patrol followed the vehicle
in question, being concerned at the erratic manner in which it
was being driven, which suggested that the driver was not in full
control and that his/her ability to drive may be impaired through
drink/drugs. The officers attempted to make contact with Hampshire
Police Central Control Centre at Southampton to report the facts.
This proved unsuccessful due to radio failure. The vehicle being
followed was becoming more and more of a concern as the driving
became more and more erratic—it veered onto the wrong side
of the road and narrowly avoided colliding with an oncoming vehicle.
At this stage, the MDP officers made a decision to stop the vehicle,
as it was being driven in a manner which was seriously jeopardising
the safety of other road users. The vehicle was subsequently stopped
and Hampshire Police were contacted via the MDP radio network.
A patrol from Hampshire police attended the scene and after being
given the facts, breathalysed the driver, who was arrested following
a positive breath test. A further breath test revealed that the
driver was more then three and one half times over the legal limit.
He was charged and subsequently convicted of driving whilst unfit.
DISCUSSION
The MDP officer was correct in trying to make contact with
the local constabulary, to report the facts and seek advice on
how they wanted to deal with the incident (ie whether the local
police were in a position to deal, or whether they wanted MDP
to deal using their powers under section 2(2)(d) of the Ministry
of Defence Police Act 1987). Having been unsuccessful in attempts
to do this, and having formed the opinion that the vehicle was
now being driven in a way which put other road users in serious
danger, and that immediate police action was required there and
then to prevent this, the officers stopped the vehicle. At this
point, the MDP had no powers of arrest or detention available
to them either as police officers (which at that stage in law
they were not) or as "any person" under section 24 of
the Police and Criminal Evidence Act 1984 . However, the officers
felt a moral obligation, as well as a duty as attested constables,
to uphold the law and to protect life and property. It was this
knowledge that formed the basis on which they made the decision
to act, and those actions may well have been important in preventing
a far more serious incident developing.
CASE 9
An MDP officer was on duty, in uniform, driving a marked
police vehicle between MoD establishments. The vehicle had stopped
at a red traffic light in Plymouth when the officer was approached
by a member of the public, who informed him that a serious public
order incident was taking place nearby. As the MDP officer approached
the location of the incident he found a crowd of approximately
30 people fighting, and in particular, six people attacking one
person. The officer made an urgent request for assistance (10-9)
and attempted to protect the person on the ground. In doing so
he was forced to use his Casco baton to defend himself from attack.
On arrival of police support, one male was arrested by Devon &
Cornwall Constabulary and subsequently convicted of public order
offences.
DISCUSSION
The member of the public clearly saw a duty on the MDP officer
to act. A dangerous incident was underway where an MDP officer
had to react swiftly to protect a member of the public under sustained
attack from a group of people. The MDP officer put out an "officer
requires urgent assistance" radio message for help from local
police, but clearly there was no time for him to wait for a message
from the local force to ask him to deal with the incident. In
this instance, a life was at risk and the MDP officer had to resort
to drawing his baton to protect himself and the person under attack.
Throughout this serious incident, the MDP officer acted without
the legal protection afforded by constabulary powers and left
himself and the MoD open to action. It is of real concern to the
MDP that this constable found himself dealing with a violent incident,
where instant action was called for, but that he was not offered
the legal protections he deserved in such an emergency situation.
The officer felt he had no option but to act, his duty as a servant
of the Crown and trained police officer undoubtedly leading him
to that conclusion. Officers of the MDP who are placed in such
a position deserve the same powers and protections as any other
police officer would have.
CASE 10
In the early hours of a Friday morning, two MDP officers
on mobile patrol in the area of the Haymarket, London W1, saw
three youths engaged in a violent fight. A number of other persons
were present and were shouting obscenities at the fighting youths.
All appeared to be under the influence of alcohol. The MDP officers
stopped and attempted to separate the fighting youths. They continued
to engage in the affray and one youth was arrested by MDP, during
which the youth had to be physically restrained because of his
continued violent behaviour. The MDP officers then requested urgent
assistance and on the arrival of support from MDP and the Metropolitan
police, further arrests were made. Subsequently, two of the offenders
appeared at the Inner London Crown Court charged with the serious
offences of affray and grievous bodily harm.
DISCUSSION
The two MDP officers on a busy city street were suddenly
confronted with a serious public order situation and acted immediately
to ensure the safety of the public and to preserve life and limb,
not having time to inform the Metropolitan Police. During the
trial of two of the offenders, the prosecutor made it clear to
the court that the arresting officers were Ministry of Defence
Police and not Metropolitan Police, and further explained that,
in his opinion, MDP officers encountering such incidents during
the course of their duties were obliged to deal with them. At
no time was MDPs jurisdiction questioned either by Defence Counsel,
the prosecution or the trial judge. However, the MDP officers
did not have anything other than a moral duty to react, as they
had no jurisdiction under the Ministry of Defence Police Act.
This is another example of an incident developing quickly
where the MDP notification to the local force has been delayed
whilst attempts were made to quell the fight in order to prevent
injury and preserve life. The outcome of this incident could have
been quite different if one of the MDP officers had sustained
a serious injury. His/her ability to claim compensation or even
a pension on retirement could have been jeopardised if they were
not considered as being "injured on duty".
The Committee asked for information about legal aid for Service
personnel
1. This note sets out briefly the grounds for eligibility
for legal aid, the basis on which fees are paid, and a synopsis
of how it is administered.
2. Legal Aid for Service personnel. Each Service operates
a legal aid scheme which, although non-statutory, mirrors and
is defined by rules and regulations falling out of the Legal Aid
Act 1988 (the Act). The object of the schemes is to provide legal
aid on lines similar to, and with safeguards comparable with,
that provided for civilians prosecuted in the criminal courts.
Details of the scheme are contained in single Service regulations
as well as the tri-Service Joint Queen's Regulations.
3. Legal aid by way of civilian professional assistance
is, subject to the provisions described below, available to all
ranks, including personnel locally enlisted into the regular forces
and to members of the civilian component and dependants who:
(a) are to be tried by court martial; or
(b) wish to apply for leave to appeal to the Courts-Martial
Appeal Court; or
(c) are to be tried by a criminal court outside the UK
in respect of an offence committed while off duty; or
(d) are to be tried by a standing civilian court; or
(e) wish to appeal against summary dealing.
4. Legal aid is not granted as of right. The same criteria
are applied as if the case were to be tried by a civilian criminal
court, ie the "interests of justice", and the need of
the applicant for help to pay the costs of the case. In granting
legal aid, the financial circumstances of the accused are always
considered. Also, before the trial, the individual will be required
to make any necessary down payment and agree to pay a contribution
towards the cost of legal aid as may be assessed after the trial.
This contribution is assessed using the same formula as for civilian
criminal legal aid. The provision of legal aid is therefore always
means tested.
5. The result is that the great majority of Service personnel,
because they have an income above the level at which all costs
will be paid for them, will be required to make a financial contribution.
In practice, an individual seldom has an application for legal
aid refused. If an individual is acquitted, that contribution
will normally be refunded under terms set out in Queen's Regulations.
(The exception is when the Judge Advocate advises at the end of
the trial that the individual has misled the prosecution or otherwise
acted to bring the trial upon himself.) In no circumstances, does
the total of this contribution exceed the actual cost of the defence.
It should also be noted that, in view of the means-testing aspect
of assessment, some personnel do not apply for legal aid, because
their financial circumstances would preclude them being granted
it.
6. Budget: Those who administer the Services' legal aid
schemes (the administrators) work in branches which are completely
independent from the respective prosecuting authorities and other
staff involved in Service court processes, including the responsible
budget holders. It is a part of the administrators' task to confirm,
on completion of a case, that the costs have been properly incurred
(following the principles in the Act) and should be paid. The
net result is that the budget is demand-led.
7. Costs/fees: The scale of costs allowed and fees paid
are the same as those in civilian criminal cases. These apply
whether legal representation is by a solicitor or counsel; and
are laid out more fully in the Annex.
8. The "historical" element referred to in
paragraph 173 of the evidence on 23 January relates not to a difference
in fees for cases abroad, but in the division between the Bar
Council and the Law Society as to work done by counsel—cases
abroad; and solicitors—cases in the United Kingdom. Solicitors
did not wish to undertake the more serious cases which may be
tried by military courts abroad, where a charge could be of, for
example, rape or manslaughter.
9. Barristers are paid by "brief fees", solicitors
are paid by the hour. Barristers are self-employed and are not
permitted to form partnerships. The method of costing solicitors'
work is based on a different premise. They do form partnerships
and overall have higher overheads than barristers. If a solicitor
advocate is chosen and accepts instructions to act in cases abroad,
he is offered exactly the same fees as if he were a barrister.
Every lawyer has the right not to accept instructions. In each
case, if he can justify a fee uplift because, for example, the
case involves complex points of law or is likely to last for longer
than five days, the fees will be renegotiated. The fees will not
be renegotiated simply because solicitors have higher overheads.
10. So far as we know, no individual has gone to court-martial
unrepresented by a civilian lawyer if this is what he wishes.
11. We are not aware of lawyers who had acted on behalf
of Service personnel before December 1999 having been paid out
of the civilian criminal legal aid budget. This being the case,
the effect of any change to the eligibility rules made by the
Legal Services Commission at that time would appear to be academic.
12. In addition, there are instances when individuals
are entitled to legal representation at public expense before
charge. The eligibility criteria are exactly the same as for civilians.
Legal advice is provided to Service suspects who are interviewed
by the Service police under the rules of the Police and Criminal
Evidence Act 1984. Service personnel in the UK are covered by
the civilian duty solicitor scheme (a duty solicitor or their
own choice who accepts duty solicitor rates) to ensure that they
are represented at interview by the Service police, should they
so wish. For practical reasons (mostly connected with the difficulty
of speedily arranging civilian legal representation from the UK),
Service legal officers provide such advice to an individual, when
serving abroad, at the Service police interview. This is also
the situation in custody hearings. Wherever possible, such advice
is provided by an officer from a Service other that that of the
suspect, in order to provide greater independence.
13. The fundamental point is that, in relation to criminal
legal aid, Service personnel are not disadvantaged by virtue of
their employment.
26
Figures include RAF Provost Officers as follows: 2001: 161; 2005:
179. Back
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