Examination of Witnesses (Questions 520-539)
MR ROBERT
ROOKS, BRIGADIER
COLIN FINDLAY,
GROUP CAPTAIN
EDWARD SCAPLEHORN
AND COMMANDER
DAVID PRICE
1 MARCH 2006
Q520 Mr Howarth: I want
to ask you a specific question on your forensic capabilities.
Do you have your own laboratories for your SIB people to work
with or are you reliant on Home Office laboratories, forensic
laboratories, databases and so on? How well trained are your people
in these forensic skills?
Brigadier Findlay: The forensic
crime scene examiners we train ourselves by utilising courses
both internal to the Service Police and also Home Office approved
courses, for example at Durham. All of our submissions to forensic
laboratories go into the civilian system. There is no extant military
mechanism solely provided for that purpose as it would not be
cost-effective. Overall, in terms of the type of forensic
analysis which we regularly submit, we have the use of the Forensic
Science Service to analyse DNA fingerprints, ballistics, metallurgy,
digital images, computer analysis and traffic accident investigations.
Let me give you an idea of the scale. In the last 12 months I
have spent just short of £1 million sterling in relation
to forensic submissions and technical support to SIB investigations
around the world, but it is all contracted out and that is one
of the challenges because we have to take our share in that queue
with the civil community.
Q521 Chairman: And this
applies to all three Services, does it?
Group Captain Scaplehorn: Yes.
Commander Price: It is on a much
smaller scale but it is mirrored, yes.
Q522 Mr Burrowes: Looking
at the distinction between the military system and the civilian
criminal law in relation to PACE and reviewing continued detention
for the arrested person, could you explain the reasons for distinguishing
between the civilian system in relation to reviews, where the
civilian system we have reviews cases carried out by an officer
independent of the investigation and some other higher rank, normally
an inspector and then, after 24 hours, by a superintendent. Why
does a Commanding Officer have that particular role?
Brigadier Findlay: The major difference
is that in the civilian system it is the civil police who are
responsible under PACE for the issue of custody. In the military
system the Service Police are not responsible for custody. We
do not maintain the custody cells, for example, we are not accountable
for that, that is a matter for the Commanding Officer. Since the
Service Police have been conducting the investigation separately
from the Commanding Officer, he is perhaps in a better position
to judge the requirement for the continued detention and, after
all, it has to go before a judicial officer at the prescribed
time, a Judge Advocate. The great difference between civil police
and Service Police responsibilities is that the civil police are
responsible for custody, they look after the people and they go
into civil police cells. Service Police do not maintain cells.
That duty is held by the unit.
Q523 Mr Burrowes: Is there
not an argument for saying that there should be that independence
in terms of a review of continued detention by the Service Police?
Brigadier Findlay: I could not
guarantee in every operational circumstance where custody was
required that a Service policeman could be present given the very
devolved and expeditious nature of the article and the limited
numbers of Service Police. You will not find them, for example,
scattered throughout all elements of Iraq or Afghanistan.
Q524 Mr Burrowes: So they
may not be done for operational reasons.
Brigadier Findlay: I would say
at the moment structurally we are not responsible, as the civil
authority is, for the custody of people in detention.
Q525 Mr Burrowes: Is there
a Code of Practice that is published particularly in relation
to detention in the military system?
Brigadier Findlay: Yes. By chance
and as a parallel responsibility I, as Provost Marshal of the
Army, am responsible for policy associated with the detention
of personnel inside the Military Corrective Training Centre at
Colchester, which I believe you have visited. A sister organisation
to the military police, the Military Provost Staff, some of whom
you met on your visit, are actually the professional custody officers
for those who are committed to serve sentences of detention in
that site. Yes, there is a Code of Practice. Equally, all the
guardroom facilities in which somebody would be detained during
an investigation, for example, are licensed and inspected and
that Code of Practice has to be followed.
Q526 Mr Burrowes: Is there
a draft Code of Practice in relation to the proposed Bill?
Brigadier Findlay: The proposed
Bill is not likely to change the mechanisms associated with a
detention.
Q527 Mr Burrowes: What
is the practice in terms of the recording of someone being in
detention and a review of the continued detention and whether
that should be made implicit in the Bill in terms of recordings?
Brigadier Findlay: The authorisations
for contended detentions are contained within Army policy documents
associated with summary dealing and custody, which is a responsibility
placed on the Commanding Officer and the chain of command, ie
the review mechanisms, the timings, the record of that and, equally,
the Judge Advocate's rulings as and when the time approaches for
his review.
Commander Price: The custody rules
are exactly the same for all three Services.
Q528 Vera Baird: What
you are saying is the civilian record would be a custody record
which would have a good deal more on it than the things you have
just set out. Have you comprehensively set out what is on the
custody document which is equivalent to the civilian custody record?
Brigadier Findlay: I do not have
that with me. I do not have something to refer to and compare.
It is my belief that that contains similar related information
of when reviews take place, who makes the review, the justification
for the continued detention and then, of course, the rulings because
in the end this is going to be tested ultimately by the Judge
Advocate to whom continued detention has to be approved.
Q529 Chairman: It might
be helpful when you do have the opportunity to double-check
that, if there is anything you feel that you want to add to what
you have said today, you sent us a note on that.
Brigadier Findlay: This is a matter
of wider policy for the chain of command. It is not exclusively
a matter for the Service Police, as I was trying to explain to
Mr Burrowes.
Mr Burrowes: It would be useful to see
the document and to see the Code of Practice as well.
Q530 Vera Baird: If you
could anonymise it, I would like to see a custody record which
has been kept to see what is on it. That would be most useful
because I suspect that very much less is recorded than is recorded
in a civilian case. Who checks that he is fit to be detained for
instance?
Brigadier Findlay: That is not
a matter for the Service Police. In respect of the chain of command,
it is actually Army policy that you are questioning me on here
at the moment as opposed to something distinctly within my areas
of responsibility. As a Service policeman I am not normally required
to become involved in recording the details of detention, it is
the Commanding Officer's responsibility. Quite rightly, that is
a question that would be more appropriate to have gone to DPSA
when you had him here. I will endeavour to provide the Committee
with that information.
Commander Price: The custody record
is kept with the police case file because it has to be referred
to.
Vera Baird: I would be surprised if it
was not. I am just slightly concerned that some of this seems
to be going into a black hole and that all that appears to be
recorded is the minimum, ie the times of the review. The civilian
custody record may be more comprehensive and he is checked on
every half an hour or every hour and much more detail is put on
it, ie visits, attendance by his lawyer, all of those things which
all appear to be missing, but I would be interested to see the
document.
Q531 Mr Jones: I sat on
the Duty of Care inquiry undertaken by the Defence Committee
in the last Parliament and the MoD confirmed then that prime responsibility
for maintaining and enforcing criminal law in the UK rests with
the home department. The Bill makes no provision for how shared
jurisdiction should be regulated. In written evidence to the Committee
JUSTICE has expressed some concern that any protocol between the
CPS and the DPS governing this exercise of dual jurisdiction within
the UK should be formalised prior to the Act coming into force.
Do you agree with that?
Mr Rooks: We have not really seen
any difficulties with dual jurisdiction.
Q532 Mr Jones: Then you
obviously did not read our report in the last Parliament on Duty
of Care.
Mr Rooks: We recognise that the
civil police have primacy, the home department civil police as
opposed to the MDP who are also the civil police. The Home Department
civil police have primacy on everything, but there is a protocol
which is formalised with the Home Office which sets out what will
happen in normal circumstances and that is, broadly speaking,
that a list of serious crimes, which include murder and rape,
will automatically be reported by the Commanding Officer or the
Service Police, if they are the first responder because you never
quite know how these things will arise, to the home department
police force and they then decide how to deal with the investigation.
For a serious crime of that sort they will almost certainly decide
to lead that investigation themselves. They may well use the expertise
of either the Service Police or the MDP, but they will definitely
be in the lead.
Q533 Mr Jones: Clause
113 of the Bill places a duty on the Commanding Officer to report
a serious offence to the Service Police but not to the local constabulary.
Mr Rooks: The requirement for
the Commanding Officer to report to the local constabulary is
contained in Queen's Regulations rather than in the Bill. There
is no doubt that for those serious crimes the Commanding Officer
must report to the local constabulary in the UK. I think the issue
with the Bill, although I have not been associated with drafting
it, is that it applies across the world. Certainly in some overseas
countries you would not involve a civil constabulary in an investigation.
Q534 Mr Jones: The Bill
delegates the responsibility to the Service Police. With the Duty
of Care report, which was extensive evidence, one of the key
problems and certainly one of the criticisms of Deepcut by the
families and others was the fact that the Service Police were
the first to investigate some of these things. I know Mr Key has
got some issues to raise on this later on. That then leads to
problems in terms of securing evidence afterwards, and certainly
Surrey Police were quite critical of the way some of those things
were done. Do you think it should be clear that in the UK, if
primacy is with the home department, they should be the people
that are called in first and not the Service Police, which then
leads to the type of accusations which were made quite clearly
by some of the families afterwards? It is another example of the
military investigating the military.
Brigadier Findlay: There is absolutely
no doubt in the minds of the Service Police over the complete
primacy of the civil authority to investigate all issues within
the United Kingdom.
Q535 Mr Jones: But effectively
it does not work like that.
Brigadier Findlay: Perhaps you
would like to expand your question further and I can come back
to you.
Q536 Mr Jones: As with
Deepcut and some of the other investigations, the first person
on the scene is basically the Service Police, is it not?
Brigadier Findlay: Yes, and initially
whoever is first on the scene of any incident must take the immediate
action to secure it. Thereafter, there is no doubt that by the
most rapid means the matter must be handed over to those who have
primacy, who in the United Kingdom are in all circumstances the
civil authorities. There has never been a doubt in the minds of
the SIB, from any of the three Services, as to where primacy lies
inside the United Kingdom. I did make clear when I gave evidence
to your Duty of Care inquiry that there is no doubt in
our minds about it and that needs to be reinforced at the scene
of any incident to ensure that the civil authority pick up that
liability and run with it.
Vera Baird: Should it be on the face
of the Bill?
Q537 Mr Jones: I agree
that there is no doubt in my mind and in your mind about where
primacy lies, but has it led to difficulty in terms of jurisdiction
between the two?
Brigadier Findlay: No, it has
not for us because there is absolutely no doubt who has the whip
hand in terms of control and liability for it. We are only going
to be there in support of actions by the civil authority.
Q538 Chairman: Would it
remove any doubt if in some way that was reflected on the face
of the Bill?
Brigadier Findlay: That is a matter
for those drafting it, but I am entirely clear about my responsibilities.
Q539 Sarah McCarthy-Fry: Obviously
there are difficulties when you try and investigate crime in the
operational theatre. If you look at the case of Iraq, you have
got the added cultural difficulties as well. When General Sir
Michael Walker gave evidence he said that trying to get forensic
evidence at a scene where an alleged crime is said to have taken
place when bombs and bullets and things are going off is incredibly
difficult and time-consuming. Brigadier Findlay, in response
to a previous question you said that your Special Investigation
Branch officers are trained with the Home Office forensic skilled
people. Do they get any special training before they go out to
operational theatres like Iraq?
Brigadier Findlay: There is special
preparatory training in terms of the cultural environment which
they are going into. One of the greatest challenges in Iraq is
the rapidity with which bodies of the deceased are buried and
indeed the graves may not be marked. There is quite reasonably,
because of religious sensitivity, enormous unwillingness to accede
to exhumation and in some cases the families will intentionally
not mark the graves in order to ensure that that request, if made,
cannot be met. So there are all sorts of challenges like that.
What we have done as a result of the lessons learned in Iraq is
prepare packages of briefing material associated with trying to
contextualise the environment that the investigation will be conducted
within because each theatre brings with it a particular cultural
and environmental challenge, not least also when you add to that
the force protection challenge that you have in trying to acquire
evidence in a highly volatile and unstable environment where active
operations may still be in progress. In terms of additional technical
and specialist training, that really depends on the lessons that
we have learned as we have progressed through in the cycles over
the last two years, not least in Afghanistan. We are likely to
face similar challenges when we move additional numbers of troops
into Afghanistan this year.
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