Supplementary memorandum submitted by
the Defence Police Federation
Further to our Memorandum dated 29 January 2001
I attach a further explanatory note that relates to the Human
Rights Act and Implications upon the MDP Appeal Rights.
You will note the proposed amendment, which,
if accepted, would allow the power to provide for a right of appeal
in cases where a lesser punishment is awarded.
When the relations for Home Department Police
where passed the human rights legislation had not been enacted.
Our view is that to restrict the right of appeal to the more severe
penalties may not comply with the Human Rights Convention and
as such would be contrary to the Human Rights Act.
The wording proposed defers this issue for further
consideration at the stage of formulating the relevant regulations.
If you require any further information please do not hesitate
to contact the Federation.
NOTE ON IMPLICATIONS OF THE HUMAN RIGHTS
ACT UPON THE PROPOSED MINISTRY OF DEFENCE POLICE APPEAL RIGHTS
Currently members of the Ministry of Defence
Police may be disciplined under the Ministry of Defence Police
(Discipline) Regulations 1985, as amended. Their appeal rights
are contained in the Ministry of Defence Police (Appeals) Rules
1985, as amended.
These provisions are not made by statutory instrument
such that Schedule 5, paragraphs 3 and 4 of the Armed Forces Bill
proposes powers to establish new disciplinary and appeal procedures
by statutory instrument.
The intention is to mirror the procedures applicable
to Home Department Forces as set out in the Police Act 1996 and
Regulations made thereunder.
However, the appeal rights proposed would be
restricted only to cases where the officer concerned has been
dismissed, required to resign or reduced in rank. This is more
restrictive than the current provisions and an officer who suffers
a reduction in pay, fine, reprimand or caution, would have no
rights to pursue an independent appeal.
Questions arise as to whether such a restriction
on appeal rights would comply with the Human Rights Act 1998.
Under the 1985 Discipline Regulations, Regulation
24 provides for seven punishments, namely, dismissal from the
Force, requirement to resign, reduction in rank, reduction in
rate of pay, fine, reprimand and caution.
Regulation 16 permits the Chief Constable of
MDP to delegate the hearing to an Assistant Chief Constable who
may only impose one of the four less serious penalties, ie reduction
in rate of pay, fine, reprimand or caution. Otherwise, subject
to those cases which proceed before a Disciplinary Tribunal, the
charges are heard by the Chief Constable who may impose any of
the seven punishments referred to.
By Regulation 26, where an Assistant Chief Constable
has heard a less serious offence under Regulation 16, the accused
officer may appeal to the Chief Constable who may not award a
punishment greater than that awarded at the original hearing.
Rule 4 of the 1985 Appeals Rules allows appeal
to the permanent Under-Secretary of State. This applies whether
or not there has been a Regulation 16 hearing. There is no restriction
preventing appeals where the four less serious punishments have
been imposed. Appeals may proceed, whatever the punishment.
The Police Act 1996 contains Regulation making
powers in relation to police discipline and appeals.
The Police (Conduct) Regulations 1999 made thereunder
provide at Regulation 34 for an internal review by the Chief Officer
or Assistant Commissioner in the case of the Metropolitan Police.
This applies whatever the punishment.
However, by Section 85 of the Police Act 1996,
the right to appeal to the Police Appeals Tribunal applies only
where there has been a dismissal, requirement to resign or reduction
There is no such right to pursue an independent
appeal where there has been a reduction in pay, fine, reprimand
The proposals in Schedule 5, paragraphs 3 and
4 of the Armed Forces Bill seek to ensure uniformity between the
position with regard to MDP and Home Department Forces.
In doing so, members of the MDP who currently
have unrestricted rights of appeal to the Permanent Under-Secretary
State will now have only a restricted right of appeal to the Police
Appeals Tribunal, once the relevant Regulations have been enacted.
Although this will ensure uniformity, questions
arise as to the position under the Human Rights Act, with particular
reference to Article 6 of the Convention, the right to a fair
trial. This provides that:
In the determination of his civil rights and
obligations or of any criminal charge against him, everyone is
entitled to a fair and public hearing within a reasonable time
by an independent and impartial tribunal established by law.
There is clearly considerable doubt as to whether,
in the case of the less serious penalties, the officer concerned
has had a hearing by an independent and impartial tribunal. The
senior officers conducting the initial hearing and any subsequent
review will not be independent of the Ministry of Defence Police
on behalf of whom the discipline charges are brought.
Plainly, even in relation to the less serious
penalties, the hearing will involve the determination of the accused
officer's civil rights and obligations. Reductions in pay and
fines may involve substantial financial penalties. Further, any
finding of guilt in a disciplinary case, whatever the punishment,
will considerably impact upon an accused officer's career and
Accordingly, a member of MDP denied the right
to appeal pursuant to the proposed provisions may seek a declaration
of incompatibility pursuant to section 4 of the 1998 Act.
It is suggested that the matter is deferred
for further review and that pending the conclusion thereof, the
proposed Section 4A(2) is amended:
(a) make provision that a member of the Ministry
of Defence Police who is dealt with by reduction in rate of pay,
fine, reprimand or caution pursuant to a decision taken in proceedings
under the regulations made in accordance with section 3A above
may appeal to the appeals tribunal except where he has a right
to apply to some other person for a review of the decision; and
in that case he may appeal to the appeals tribunal from any decision
of that other person as a result of which he is dealt with by
reduction in rate of pay, fine, reprimand or caution.
To revise the current lettering such
that (a) becomes (b), (b) becomes (c) and (c) becomes (d).