Select Committee on Armed Forces Appendices to the Minutes of Evidence


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:

Police forces
Ministry of Defence Police
c 3000
Royal Navy Regulating Branch
No significant changes expected
Royal Marines Police
Royal Military Police
No significant changes expected
Royal Air Force Police[26]
Non-police services
Military Provost Guard Service
Ministry of Defence Guard Service
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)
26 (25)
24 (28)
Chief Inspector
52 (49)
58 (59)
180 (173)
123 (112)
707 (698)
585 (557)
4,019 (3,880)
2,830 (2,678)
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.


  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.


  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.


  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.


  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.


  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.


  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.


  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.


  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.


  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.


  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.


  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.


  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.


  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.


  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.


  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.


  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.


  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.


  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.


  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.


  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.


  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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