APPENDIX 4
Further memorandum from Mr Nigel Wylde
(28 November 2001)
Since my submission to the Defence Select Committee
on 26 November 2001 two new pieces of information relevant to
the Clauses 97-100 and Schedule 7 of the Bill concerning the Ministry
of Defence Police have emerged. They concern:
— Potential miscarriages of Justice
— Primary and Secondary Crime
Both of these issues are legally complex matters
and result from the ill-conceived powers of jurisdiction in the
Ministry of Defence Police Bill 1987. They also mean that it is
almost certain that the Ministry of Defence will return to Parliament
within the next few months for yet more amendments to the Jurisdiction
powers of the Ministry of Defence Police.
POTENTIAL MISCARRIAGES
OF JUSTICE
The Police Complaints Authority is currently
involved in three complaints against the MDP made by Mrs Monika
Wylde, Mr Tony Geraghty and myself. The complaints are about the
conduct of Deputy Chief Constable Tony Comben. The Ministry of
Defence recently dismissed him. I understand that the Second Permanent
Under Secretary at the MoD is insisting the complaints are fully
investigated despite the fact that Mr Comben is no longer a police
officer. The Chief Constable of Essex is undertaking the investigation.
Although different in the detail the complaints all have the following
two common strands:
— Mr Comben failed to act impartially
and independent of the Ministry of Defence by accepting a direction
from Mr Arthur Rucker, a Ministry of Defence Official and Clerk
of the Ministry of Defence Police (MDP) Police Committee, on how
to undertake an investigation.
— Mr Comben exceeded the powers of
jurisdiction conferred on him by the Ministry of Defence Police
Act 1987.
In addition to the complaint against Mr Comben
I have made an additional complaint against Mr Arthur Rucker alleging
misfeasance in that he:
— Abused his position as Clerk of the
MDP Committee by sending a memorandum to Deputy Chief Constable
Comben MDP directing how Mr Comben should investigate Mr Rucker's
own complaint.
The memorandum was read out to the Select Committee
on the Armed Forces Bill earlier this year.
I understand that if the complaints are substantiated
that a number of miscarriages of justice are likely to be highlighted.
I do not have details of the numbers involved but I understand
that there may be a considerable number.
The provisions in the Bill do not address the
key issue, which is that MDP jurisdiction of people is different
from that in relation to MoD property. It would seem sensible
not to give the MDP any increased powers until this issue has
been properly investigated and proposals to correct the current
failings of the Ministry of Defence Police Act 1987 are made.
PRIMARY AND
SECONDARY CRIME
This issue is related to the first issue. In
respect of the MDP a primary crime is one that is carried out
by a MoD employee or a defence contractor. In this context the
MDP only has jurisdiction over the people involved if they are
MoD employees and defence contractors at the time the jurisdiction
is exercised by the MDP. They have jurisdiction over property
at all times.
A secondary crime is one related to the primary
crime but undertaken by an individual who is neither an MoD employee
nor a defence contractor. For example if MoD property is stolen
by an employee and given to a civilian to sell, the civilian is
committing an offence but the MDP has no jurisdiction over him.
They can however, recover the property. Similarly, if whilst MDP
officers are investigating a defence contractor they find evidence
of another crime they have to pass jurisdiction to the Home Department
Force if the secondary crime has no relation to an MoD contract
on which the contractor is currently working.
The clauses in the bill extend the jurisdiction
of the MDP to a third category of people—those committing
offences against MoD employees.
This issue is currently being discussed in the
MoD as part of the quinquennial review of the MDP Agency. Assistant
Chief Constable Ray touched briefly on the subject during his
evidence to the Select Committee on 22 November 2001. Nothing
in the Bill attempts to cover this difficult area of jurisdiction.
CONCLUSION
Hasty legislation is invariably ill considered
and flawed. In the case of the proposals in the Anti-terrorism
Crime and Security Bill in relation to the MDP the proposals whilst
clarifying some areas of MDP jurisdiction do nothing to address
the problems identified in this short submission and will mean
that the MoD will have to return to parliament in the very near
future with yet more amendments to the Ministry of Defence Police
Act 1987 in relation to jurisdiction. Nor do the proposals help
the MDP in any way in dealing with terrorism. They already have
sufficient powers.
The MoD will be bringing forward further amendments
to the Ministry of Defence Police Act 1987 shortly concerning
discipline and complaints. Surely it would be better for Parliament
to consider all the proposals in detail in a well thought out
process instead of the current ad hoc approach that is creating
more problems than it is solving.
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