APPENDIX 12
Memorandum submitted by Mr Nigel Wylde
INTRODUCTION
I first came into contact with the Ministry
of Defence Police in 1974 when they were assigned to give me and
my family protection from a possible attack by the IRA following
the broadcasting of a television programme about my work as a
Bomb Disposal Officer in Northern Ireland. The officers concerned
were very helpful and supportive and I have been grateful to them
ever since for the reassurance they gave to both my family and
my neighbours who were also affected by the threat to my person.
In undertaking this task they showed an understanding for the
circumstances of policing the Military Estate and Married Quarters
that I do not believe could be shown by a Home Office Force.
Over the ensuing 25 years I had irregular contact
with the MoD Police until they entered my house on 3 December
1998 and unlawfully arrested me for allegedly breaking Section
2 of the Official Secrets Act. It was not for another 21 months
that we started to receive the classified papers in the case,
at which stage we knew what they were alleging. The case was clearly
constructed by people who did not understand the subject and facts
involved. The Prosecution Barristers were uneasy about what was
happening and asked me if I would be prepared to give them any
evidence I had that would enable them to approach the Attorney
General to withdraw his fiat authorising the prosecution. I sanctioned
my legal team to give them about 25 per cent of what we had then
assembled. Three days later the CPS offered no evidence and I
was found Not Guilty.
I do not wish to cover the detail of the case
except to make corrections to the exceptionally misleading and
factually incorrect evidence given to the Committee by Deputy
Chief Constable Comben MDP and Mrs Gloria Craig DG (S&S) in
the MoD. My case does however raise serious concerns about the
proposals to increase the powers of the MDP as set out in the
Armed Forces Bill and it is those powers that I wish to cover
first.
IS THERE
A REQUIREMENT
FOR THE
MDP
Prior to the 1987 MDP Act careful consideration
was given to the need for an MDP. As an observer of their work
over the last 25 years I am convinced of the need for such a force.
However, I support the restrictions recommended in the Broadbent
report on limiting their jurisdiction and investigatory powers.
In summary in 1987 their powers were limited to:
— Ministry of Defence Employees;
— Defence contractors employed
on current contracts.
The responsibilities set out in 1987 have not
changed and no evidence has been produced by the MoD to support
any change in their role. Yet the powers they are seeking will
make them a National Police Force under the control of a Police
Committee that reports to the Secretary of State for Defence.
This is the first step to military control of civilians and not
the prerequisite of a democratic society that the military are
always subservient to civilian authority. The Committee has to
decide if this is an acceptable situation in a modern free and
democratic England. I do not believe that any justification exists
for changing the powers set out in the 1987 Act.
REASONS FOR
CHANGE
The MoD claims that the restriction on MDP jurisdiction
in the MDP Act 1987 is the reason why they are asking for the
extra powers to cover their officers when outside the MoD estate.
There have been a number of occasions when MDP officers have been
placed in difficult situations with only the powers of a civilian.
These events have all occurred outside the MoD Estate. To avoid
officers being placed in difficult situations the MDP say their
officers require the powers of a constable to be extended beyond
their estate and beyond the vicinity of their estate to cover
the whole of the United Kingdom. There have been no complaints
made to the Police Complaints Authority about the MDP failing
to act outside their jurisdiction yet they claim that this is
a major reason for justifying the changes to the MDP Act of 1987.
I believe that the cause of this problem is not the MDP Act but
the methods of policing introduced in the last four years by the
last Chief Constable and by Mr Comben the current Deputy Chief
Constable. I have outlined what I consider to be the main causes
of the change in the following paragraphs.
Vehicle Livery
It is only in the last few years that the MDP
has been using white cars marked in a Police livery. Until about
1997 they used to drive black cars with limited markings identifying
them as MDP. There is no apparent reason why they needed to change
their vehicle livery, as the old vehicles were clearly identifiable
as MDP on the MoD estate. However, by changing their livery they
are now identified outside the estate as Police Officers. I believe
this is sole cause for the MDP being asked for help by members
of the public when outside the MoD estate.
Investigation of Civilians
The 1987 Act clearly prohibits the MDP from
arresting civilians unless they are employed as a Defence Contractor
working on a MoD Contract. The Attorney General has rebuked the
MDP for the way they acted in my case. It is clear that they arrested
my former co-accused Tony Geraghty and myself unlawfully. We were
both civilians and neither of us were working for the MoD in any
contractual arrangement at the time of our arrest. We were not
alone in this respect. Two days before our arrest some Gulf War
veterans were also arrested for allegedly stealing an MoD document.
They too were civilians. In both cases it was alleged that we
had documents belonging to the MoD. The drafters of the 1987 Act
recognised this dilemma and gave the MDP the power to search premises
if they had grounds to believe there was MoD property on those
premises. Property means something that physically belongs to
the MoD and not to Intellectual Property, which is a civil matter.
To clarify this point, if the person has an MoD document that
is MoD property. If they only have notes that is not MoD Property.
The MDP 1987 Act clearly distinguished between property and persons.
If the MDP wanted to investigate matters involving MoD property
and civilians then they had to involve the Home Force. I believe
the MoD wish to be the sole investigatory authority in cases involving
the Official Secrets Act. I have no doubt that the reason my case
took so long was that they wished to discourage whistleblowers
from exposing malpractice and unlawful activities within the MoD.
In particular I believe they wanted to reduce the number of books
by former SAS soldiers and to prevent further revelations about
the Force Research Unit in Northern Ireland. It was for this reason
that I believe Mr Comben accepted instructions from AUS (S&S)
Mr Arthur Rucker to investigate my case and that of the Gulf War
veterans. I have attached to this submission press reports of
the action taken by the MDP against civilians in the form of Gulf
War veterans and Green Peace for the information of Committee
Members. The proposed changes to the MDP Act will permit such
investigations in the future. In my case at one stage in the investigation
Mr Rucker and his staff were involved as follows:
— the people who removed my vetting;
— the assessors of damage;
— the Clerk of the MDP Committee;
— the Secretary of the MDP Committee.
People I have explained this situation to have
been very concerned that this totalitarian situation exists in
the United Kingdom in 2001.
Investigating Serious Crime
The proposed legislation would legally end control
over the MoD Police outside the MoD Estate and give them free
rein to investigate anywhere in the country without restriction.
It would also permit them to arrest civilians who owe no duty
to the MoD. Unless these powers are limited by law they could
be stretched in the future to cover any activity. This is surely
not what is intended but it could be the result of the current
legislation. The statement of Mr Michael Legge DUS(CM) that the
limit of these powers can be incorporated into a new Concordat
or Protocol does not stand up to scrutiny. What he is saying is
trust us and our many successors and we will not breach the spirit
of the law. The record of the MoD in this respect is not good.
They have exceeded the assurances given to the Commons in 1987
by Sir Archie Hamilton when he said:
"The Home Department police have prime
responsibility for the enforcement of the law, and nothing in
the Bill changes that . . . There is an absolute requirement for
the MDP to pass serious crimes such as murder and rape to the
Home Department forces. The Bill does not change the role of MoD
police. It merely brings activities in which they have been involved
under the same legislation. The MoD police are entitled to investigate
crimes on MoD property. When it comes to minor crimes there is
often an agreement within the Home Department forces that it might
be better if the MDP investigated."
Clause 2 also empowers the MDP to act in relation
to Ministry of Defence or contractors' property or personnel where
an investigation may need to be followed up outside the bounds
of an MoD establishment . . . That could extend to a fraud involved
in the purchase of clothing or something of a relatively unspectacular
form.
The MDP has in recent years completely ignored
these assurances. They have been investigating cases involving
the Official Secrets Act. An offence under this law is regarded
so seriously that the Attorney General, uniquely in British Law,
has to approve the prosecution. They are now investigating 30
rapes per year despite the assurance that all rape cases would
be handed over to the Home Office police. Whatever the rights
and wrongs of these cases the key factor is that unless ministerial
assurances are enshrined in law they will be ignored at some point
in the future.
Inability to be Deployed in a National Emergency
The issue of insufficient powers first surfaced
in 1997 at about the time of the full introduction of the new
livery police cars, when the Chief Constable wrote in his Agency
Corporate Plan 1997-2002:
The basis of MDP jurisdiction, as set out
in the MDP Act 1987, is sound but it does need some clarification
and some revision for it to remain effective. The progress of
the Force is being hindered, individual officers are apprehensive
about what they can and should do in situations beyond the boundaries
of Establishments as the likelihood of legal challenge, judicial
review or civil action is increasing.
The Police Committee approved this report. It
is not clear what was meant by the phrase "progress of
the Force is being hindered" but it does not seem to
have concerned the Police Committee, which is headed by the second
PUS in the MoD, as they took no action to rectify the situation
in the next four years. The event that caused the MoD to react
rapidly and draft the proposed increase in powers set out in the
Armed Forces Bill was a request made to the MDP Chief Constable
for MDP Officers to help police the fuel protests. The Chief Constable
reported on this matter to the Defence Police Federation as follows:
We have established the Protocols with police
forces of the respective UK countries which we police but we still
have anomalies in respect of our jurisdiction which is presently
legislated for in the MDP Act of 1987. A more recent and poignant
example was that of a request from second PUS for us to supply
police officers on a mutual aid basis during the fuel crisis.
I wrote back to the second PUS and told him that he could have
as many officers as reasonably practicable but he wouldn't be
able to use them for the specific role that the Home Office had
intended (that of aiding fuel convoys or policing picketed oil
refineries). Having explained our dilemma in great legislative
detail it wasn't long before the second PUS was on the case.
It has always been a point of great concern
that fundamental issues such as where and when we can exercise
the power of Constable have taken such a long time to be formally
recognised. At last we have the final pieces of the jigsaw in
place and ironically, it is the Armed Forces Bill 2001 which is
the vehicle we are using to make these final changes. This will
give us the recognised powers required in order to carry out our
duty, irrespective of location, in times of emergency or where
there are life threatening incidents encountered outwith our recognised
boundaries. At long last, the long suffering, tax paying public
can look forward to receiving much better value for money from
at least one additional group.
It is difficult not to conclude that the main
reason the MoD are seeking additional powers for the MDP is to
create a Police Force that can be used for any purpose in a national
emergency. This is not what the MoD and the MDP have said in their
evidence to the committee. In the paper The Future Strategic Context
for Defence published on 7 February 2001 the Defence Secretary
states under the heading Political Dimension: Key Implications
for Defence:
Crime, terrorism and political extremism may
increasingly require a military element to the Government response.
The military have been involved in the areas
of crime and terrorism for many years as witnessed by the surveillance
of drug smuggling shipments by NIMROD aircraft and the army in
Northern Ireland. What is new is the wording "political extremism".
Again it is hard not to believe that the MoD are asking for additional
powers for the MDP in relation to this perceived new role. If
I am wrong and this is not their purpose, then I see no reason
why the MoD should not support an amendment to the current Bill.
In this way suitable wording in the Bill would strictly limit
their powers by statute and not leave the detail to be negotiated
in a new Concordat or Protocol after the Bill has been passed
into law.
VIEWS OF
HOME OFFICE
POLICE FORCES
Mr Paul Scott Lee the Chief Constable of Suffolk
has told the Committee that it would be useful if MDP Officers
could help in emergencies such as the recent flooding. He also
said that he was content with the present arrangements that worked
well within his County. He added that the general public would
welcome increased powers for the MDP provided that they knew and
understood that the MDP would be fully under the control of the
local force on such occasions. He emphasised that his Police Authority
and his Force might be financially liable for any incorrect action
taken by the MDP when operating in his area outside the MoD estate.
Mr Colin McKerracher Assistant Chief Constable
of Strathclyde Police gave very similar evidence to the committee
and acknowledged that current arrangements worked well but that
he wanted to be in sole charge of events in his area. He welcomed
the presence of MDP Officers in marked Police Cars travelling
between bases as it gave an impression of more policing in his
area. He expressed reservations about allowing the MDP to investigate
crime in his area, as they would not have access to the information
and intelligence available to the local force.
Both the Home office forces and the MDP agree
that the position of individual officers needs clarifying if they
are called on to assist the County Force. The Home Police, both
in England and Wales and Scotland, say that they will remain in
charge of any situation their area and will delegate authority
to MDP as see fit.
In summary the only change that is required
is to clarify the position of individual officers.
CONCLUSIONS
From reviewing the evidence given to the committee
and from my own experience I have reached the following conclusions.
— There is a requirement for an MDP
Force to guard MoD property and to investigate minor crime on
the MoD Estate.
— The current proposals to amend the
MDP Act would have the effect of creating a national police force
controlled by the Ministry of Defence.
— The assurances given by a Defence
Minister (Sir Archie Hamilton) to the Commons in 1987 have been
ignored.
— The existing MDP powers for jurisdiction
are sufficient for policing their own estate.
— The investigatory powers of the MDP
should be limited by statute and not left to negotiation between
the Home Office and the Ministry of Defence.
— Control of the MDP should be removed
from DG(S&S) so as to avoid a conflict of interests.
— The MDP Police Committee should be
appointed by Parliament and should have only limited Ministry
of Defence representation.
POSSIBLE SOLUTION
Although I have shed doubt on the motives of
the MoD and the senior officers of the MDP for requesting these
changes, I think they should be given the opportunity to accept
a solution that meets their concerns in relation to their own
officers powers. It would also remove the spectre of the creation
of a National Police Force under military control. I believe that
by making the MDP officers in an area Special Constables of that
area they will have the protection they need.
There is one practical problem with this suggestion,
that is not insurmountable, and that is the fact that APTs operate
in several police areas. There is nothing to stop officers serving
in the APTs being attested in all areas in which they operate.
SPECIFIC POINTS
RELATING TO
THE EVIDENCE
OF DEPUTY
CHIEF CONSTABLE
COMBEN
In relation to the evidence given to the committee
by Mr Comben, I am in control of certain documents to support
what I have to say about his evidence. I cannot release them to
the Committee without the permission of the Court. If the Committee
wishes to see them I will request permission from Mr Justice Moses
who is the High Court judge responsible for my case.
In his evidence to the Committee on 25 January
Mr Comben made a number of statements about consultation that
were not followed in my case:
(Mr Comben) I think that circular was in the
light of modern policing developments ever since Lord Scarman's
report. It has always been good practice to consult when you are
going into somebody else's police area.
(Mr Randall) You would not be able to categorically
say, whereas now it would be, not exactly mandatory, legal.
(Mr Comben) Good practice.
(Mr Randall) Before it might have been good
practice but it would not necessarily have happened every time?
(Mr Comben) I cannot speak for the MoD, I
have been there six years, I cannot speak before then. Certainly
in the whole of my six years it has been mandatory good practice.
On 3 December 1998 the Ministry of Defence Police
led by Detective Chief Inspector Webb searched my house in the
Metropolitan Police Area. There is no record of any of the Mandatory
Consultation with the Met Police that Mr Comben claims always
takes place. In early March 1999 a Constable of the MDP went to
the German School London and asked questions of her superiors
about my wife's movements. In short she was being treated as a
suspect. No consultation with the Met Police took place before
that visit. Mr Comben is aware of the facts in both instances.
In my case the Police Log shows he was fully involved in all aspects
prior to my arrest and had attended a case Conference on 1 December
after which the plans for the search were set in motion. My wife
has complained to the Police Complaints Authority about the action
at her place of work. As part of the complaint she has pointed
out that no consultation took place. Mr Comben is also fully aware
of all the facts in her case as he is responsible for the discipline
of the force.
My case is not one that Mr Comben could have
forgotten because I understand that the MDP received a very critical
letter from the Attorney General about their investigation and
also of being misled by the Ministry of Defence. In addition my
wife's complaint was only allowed to proceed once my case was
over. In short the answer Mr Comben gave the Committee that "(to
Consult) is mandatory good practice" is not true and
was in my opinion designed to give the Committee a false impression
of reality.
(Mr Key) In the case of Mr Geraghty, which
was another example here where there were two years taken to investigate
that case by the Ministry of Defence Police, and again the case
fell, a very great deal of damage was done to the gentleman in
question. In that particular case of Mr Geraghty, was the Mercia
Police Force actually consulted before Mr Geraghty's home was
raided? You must have been very familiar with this case, after
all it went to a very high level. Were all the conditions we have
been describing this morning conformed with? Was there consultation,
prior arrangement and the Chief Constable of Mercia said to the
Ministry of Defence Police: "Please, you carry on and raid
Mr Geraghty's home"?
(Mr Comben) Certainly there was consultation
about the search of Mr Geraghty's home. It was not a question
of consulting with the Chief Constable about the initial stages
of the investigation. I cannot say any more than that.
As my co-accused Mr Geraghty was also arrested
on 3 December 1998 and following a search of his house he was
taken to Leominster Police Station for questioning. The Custody
Sergeant was not expecting him as he was completely taken aback
about how to enter an Official Secrets Act charge into his computer
system. Again the Police log does not record any prior consultation
about the search or arrest. On 8 December an entry in the log
reports that Detective Chief Inspector Webb MDP spoke to an A/DI
of the West Mercia Police about Mr Geraghty. This was after the
search and not before it as should have been the "mandatory
good practice".
Again Mr Comben was fully aware of the operation
having attended the conference on 1 December after which the operation
was initiated.
(Mr Key) In the case of Mr Geraghty there
was no question of Mr Rooker (Rucker), who was the Assistant Secretary
at the time, inviting you to investigate that case?
(Mr Comben) I know about what you are
discussing, of course. Mr Rooker (Rucker) was in the same situation
as any other complainant, any other member of the public. We discover
some crimes ourselves but most crimes are reported to the police.
Most allegations of a crime are reported to the police by other
people, and that is what happened in this case.
(Mr Key) There was the question of an interim
report on an investigation which it was certainly alleged was
requested by Mr Rooker (Rucker) from the Ministry of Defence which
would not have occurred in a Home Office force. We actually had
the Ministry of Defence asking for an interim report on the investigation
to see whether or not it should be pursued. Can you confirm that?
(Mr Comben) I cannot confirm that an interim
report was asked for or provided because I do not think it was.
I can only now go back to the general. You have the operational
independence of the Chief Constable on the one hand but it is
entirely appropriate in my eyes for the Secretary of State, whether
it be for Defence or the Home Department or anywhere else, to
ask for a report at any time about a matter that is receiving
national attention or is of national importance. That is a provision
that the Home Secretary and the Secretary of State for Defence
have but it was not asked for. I am talking about the general;
I see no objection to it.
Yet again Mr Comben has not given the Committee
a full or accurate answer. On 27 October 1998 Detective Chief
Inspector Webb of the MDP opened a crime log with the following
words:
Meeting with DCC MDP (Comben). DCI WEBB appointed
investigating officer. Handed Confidential loose minute D/SEC(HSF)3/66/5/1
outlining Initial Complaint. Interim enquires to be made whilst
awaiting correspondence from AUS(S&S).
On 6 November the log continues: Meeting with
DCC—Interim report submitted by DCI WEBB. Received from
DCC Confidential loose Minute D/AUS(S&S)/70/5(659/98).
As the committee heard on Tuesday 6 February
the letter from Mr Rucker was clearly a directive to Mr Comben.
Mrs Craig (DG(S&S) called the wording "infelicitous"
and I recorded the Chief Constable as saying "It sounds like
a directive, which would cause me potential concern. I am surprised
by the language."
I make the following points:
— Mr Comben knew that Mr Rucker would
be writing to him and he ordered Mr Webb to undertake "interim
enquires" only until the letter from Mr Rucker had arrived.
A formal complaint had already been made, it was for the MDP to
determine if they had the authority to investigate and if so whether
an investigation was justified. This is like a crime being reported
by Mrs X and the police saying we will not do much until we hear
from Mr X. Mr Comben was quite clearly waiting for the Clerk of
the MDP Committee to give him a formal direction as to the limit
of the investigation. I understand that Mr Rucker did make an
interim report to Ms Chivers in the Cabinet Office.
— There is an MDP office in the MoD
Old War Office building about five minutes from Mr Rucker's office.
Why did he not report the matter to his local MDP Officer instead
of writing to the Deputy Chief Constable unless it was to give
a clear directive to a senior officer of the force. This was not
the action of a man reporting an incident to an independent Police
Force.
SPECIFIC POINTS
RELATING TO
THE EVIDENCE
OF DIRECTOR
GENERAL (SECURITY
AND SUPPORT)
MRS GLORIA
CRAIG
Mrs Craig addressed the Committee on 6 February.
Before the questioning started she made a statement to the effect
that her role as Clerk of the MDP Committee was purely administrative
involving the arranging of four meetings per year and that in
total she spent no more than 5 per cent of her time on MDP matters.
I would make the following points:
— The role of a Director General as
the name implies is to direct. As a Grade 3 Mrs Craig is a very
senior Civil Servant. Senior Civil Servants delegate administrative
tasks to juniors: in this case, to the Secretary of the Committee
who is a Senior Executive Officer.
— Mrs Craig is the MoD Security Officer.
In this role she is responsible for the MDP. The MoD telephone
directory for 1998 contains the following entries for her staff
in relation to the MDP [not printed]. I am told the entries
are still valid.
In responding to the Memo written by Mr Rucker
that was read to the Committee by Mr Key on 6 February, Mrs Craig
said that Mr Rucker had been "infelicitous" in the use
of his language. She then continued by saying that he had been
following the normal procedure as laid down by the Cabinet Office.
This is wrong. The normal procedures were not followed in my case.
An expert witness, Mr Duncan Campbell, commissioned by me wrote
the following in his report that was accepted by the Attorney
General as the reason for withdrawing his fiat in the case of
my prosecution:
MOD
INSTRUCTIONS ON
COMPROMISE AND
DAMAGE ASSESSMENT
Ministry of Defence instructions (JSP 404) on
the loss or compromise of protectively marked materials specify
the steps that should be taken when compromise is believed to
have occurred. These steps include:
— An initial report . . . stating what
counter compromise action will be taken.
— A progress report within seven days
of the immediate report, giving an update on the progress of the
investigation.
— "A final report [including]
recommendations for action . . .
According to Major Withey, "in the normal
course of events" he would have been the officer responsible
for conducting the "damage assessment and initial investigation"
within HQNI. The initial investigation was taken over by the Ministry
of Defence Security Department and the MDP. But no damage assessment
was done, or asked for. He says:
"At no time have I been asked
to either obtain or produce any formal damage assessment in relation
to the disclosures in the book `The Irish War'."
Major Robbins has also stressed that, after
writing his 21 October 1998 loose minute:
"At no time was I tasked to conduct
a further assessment."
Major Powell was later asked to explain why
no damage assessment had been carried out, as MoD procedures required.
He explained that the assessment he prepared this was only done
when the MDP specifically requested it for the purposes of the
present case. He commented:
"The delay . . . was caused by
the sequential approach to the analysis and the differing procedures
of the MoD in London and Headquarters Northern Ireland, which
are both large organisations."
In relation to the "Standard Procedures"
Mr Campbell summed up as follows:
I have already noted that in this
investigation, standard MoD procedures were not followed. There
were no progress reports or final reports, nor any considered
recommendations for action or counter-compromise measures. No
considered damage assessment was ever made, other than for the
purposes of this prosecution. The assessment that was made was
not made by the competent department of HQNI. The Army organisation
responsible for assessing terrorist knowledge and the significance
of compromises is the Counter Intelligence company of HQNI, commanded
by Major Withey. He says he was never asked to investigate any
aspect of the case. Such information about previous compromises
as he had given to the MDP was not, apparently, passed on to the
CPS or the Attorney General. Nor was it produced at all until
the defence required it to be produced. I particularly note that
Major Withey was not asked by the MDP to include information about
the previous compromises of which he was well aware when he made
his statement on 4 May 1999.
In summary the evidence Mrs Craig gave to the
Committee was both misleading and wrong.
February 2001
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