Examination of Witnesses (Questions 600-619)
MR ROBERT
ROOKS, BRIGADIER
COLIN FINDLAY,
GROUP CAPTAIN
EDWARD SCAPLEHORN
AND COMMANDER
DAVID PRICE
1 MARCH 2006
Q600 Vera Baird: I am
in no doubt of that when you are engaged, but you do not know
what happens when the Military Police are not involved.
Brigadier Findlay: Quite right.
It is a wider matter for the Services.
Mr Rooks: It is outside our competence
here, but, again, we could get a note for you specifically on
the gathering of forensic evidence.
Q601 Vera Baird: If it
is not too far away from your remit, I would be very grateful
for that. Since you are involved with Boards of Inquiry when there
is a parallel criminal investigation, is there, in your view,
any reason why the presumption should not be that next-of-kin
be admitted—obviously, with a let-out if there is a security
reason why not?
Brigadier Findlay: That, very
generally, is a matter of Army policy, not a matter for the Service
police.
Q602 Vera Baird: I am
asking you, so tell me, please, what do you think?
Brigadier Findlay: My personal
view is that where possible I would see that to be a very helpful
opportunity, particularly in terms of confidence for the families.
However, one would also wish to ensure that the Board of Inquiry
was conducted in an environment where as much accuracy and freedom
of speech was possible by those involved. So my personal view,
which you are seeking, as opposed to my view as a policeman, is
that openness would be helpful because it deals with gaining confidence.
That may not always be possible, given the operational circumstances.
Q603 Vera Baird: I think
I made clear that there has got to be a caveat that sometimes
it would not be practical, but although you say you are speaking
personally, and I accept that entirely, you are speaking with
the benefit of having, I assume, a lifetime's experience in the
role which you are currently occupying. Clearly, nothing springs
straight to your mind which says: "No, they should not be
there"; on the contrary, you prefer that they would be.
Brigadier Findlay: What a default
situation may be is a different case entirely. I personally do
not have a difficulty with that, but I could not judge all circumstances—not
least, given the level of activity that takes place now in operational
theatres.
Q604 Vera Baird: Do any
of you gentlemen differ from Brigadier Findlay on that and have
strong views to the contrary, or do you all share the view of
this Committee that it would be helpful where possible?
Commander Price: On the point
the Brigadier has made about the operational side, a Board of
Inquiry being held on a ship could be potentially difficult in
terms of health and safety, and what-have-you, in the same environment.
So from the operational side, if you are asking for my personal
view, I am the same as the Brigadier.
Group Captain Scaplehorn: I do
not differ from that.
Mr Rooks: Yes, provided balance
is the issue. Because a Board of Inquiry is designed to get to
the truth in, in a sense, a non-legalistic way, we would not wish
to inhibit the witnesses. That is the potential downside.
Mr Jones: I do not understand that, I
am sorry, Chairman.
Q605 Chairman: No, I do
not understand that. How would the presence of next-of-kin inhibit
witnesses in any way?
Mr Rooks: I think the witness,
potentially, might want to protect the next-of-kin and, therefore,
say what they want to say in a less direct, more euphemistic way,
which might be misleading.
Q606 Mr Jones: I am sorry,
I have attended Coroner's Inquiries where that, actually, is the
same thing. What is the difference between these circumstances
and a Coroner's Inquiry, where, routinely, the ones I have attended,
the family members have actually been there?
Mr Rooks: As I said, I support
where possible the concept of families being there.
Q607 Mr Jones: So what
you have just said is nonsense then.
Mr Rooks: No, I am merely saying
that it is a potential problem.
Mr Burrowes: Chairman, you have raised
this previously in terms of the relationship with the Coroner's
Inquest. It would be helpful to have a general note in relation
to Boards of Inquiry and Coroners, looking at how that process
works and informing us as to the way a Board of Inquiry is set
up.
Chairman: I think it would be helpful,
but I am not sure whether it would be—
Mr Burrowes: Not by these people; it
would need to be by those behind.
Chairman: We have made a note of that.
Can we move on. Gerald?
Q608 Mr Howarth: The Judge
Advocate General has made great play about the need to bring military
law as closely as possible into line with civilian law, and the
Bill makes changes in that direction. In particular, it seeks
to bring the military practice in line with the Police and Criminal
Evidence Act. Can you explain what changes there are, as you see
it, in this Bill which will affect the approximation of your practices
to those of the Police and Criminal Evidence Act?
Mr Rooks: I am not really aware
of changes in the Bill which will do that, though I am sure the
Bill is drafted with the aim of being as close to PACE as possible.
There is no doubt that we would wish to mirror it where it makes
sense. The only part of PACE itself which applies to the Military
Police is Part V which is about how to treat people in custody;
how to question them, using tape-recorders and so forth. Because
of the way the PACE legislation was set up, when the PACE legislation
is updated in relation to the civilian police forces it does not
automatically apply to the Service police forces, which means
there has to be a statutory instrument, and that takes some time.
So the Service police forces tend to lag behind the civilian police
forces for legislative reasons. There are a couple of quite important
issues where that is the case at the moment and secondary legislation
is required; in particular, the ability to take DNA samples on
arrest or to take fingerprints on arrest. Civil police are allowed
to do both and both are very important (and my colleagues will,
no doubt, amplify that in terms of crime solving) and, at the
moment, the Service police are not. So when that secondary legislation
comes into place the Service police will be brought fully into
line with the civilian police in that respect.
Q609 Mr Howarth: Does
that go for the rest of you?
Brigadier Findlay: Yes, and we
look forward to that.
Mr Howarth: It does militate rather in
favour of the argument that there should be retained the annual
review of Service law, on a practical basis, simply to allow you
to have an instrument by which you might effect changes necessary
to bring military law up-to-date, where it is appropriate, with
civilian law.
Vera Baird: Do we not have those now?
Chairman: I think we are having a debate
between ourselves, rather than with the witnesses.
Q610 Mr Howarth: I just
wanted to put it on the record, Chairman. It was more a statement
than a question. Can I just pursue this point about these changes
which you suggest are going to be fairly minimal? Do you think
there is a necessity for any additional training to be given to
your personnel to accommodate such changes?
Brigadier Findlay: I think there
is a very continuous process of training, particularly through
the Defence Police College, in terms of our Tri-Service training
courses now, where any adjustments to legislation take place;
either policy notes are issued of a technical nature out to the
field Army units which are shared with colleagues in the Air Force
and the Navy in terms of technical application, or we will actually
produce a new piece of training which can be delivered on site
at Southwick or trickled outwards. I do not perceive that to be
anything greater than is a normal continuum.
Mr Howarth: Thank you.
Q611 Mr Breed: Just quickly
on the DNA database, as you are aware the police can, at the moment,
take DNA material after an arrest and retain it even if there
is no subsequent prosecution. Would you want that to apply to
what you do? Would you support the setting up of a DNA database
of all military personnel?
Brigadier Findlay: From the perspective
of assisting in the solving of serious crimes, certainly the use
of DNA records has been critical and has been very successful
in major prosecutions in the last five to ten years.
Q612 Mr Breed: So you
would support the view that you could take DNA on an arrest and
if no subsequent prosecution took place you would wish to retain
that information within the database for future reference?
Brigadier Findlay: I would.
Q613 Mr Jones: Can I turn
to arrest, search and entry around some of the issues you have
already mentioned about PACE? Civilian police can only exercise
a statutory power of arrest when there are reasonable grounds
for believing it is necessary for specific, defined operational
reasons to affect the arrest. Is there any reason why, on the
face of this Bill (military operational reasons) it should not
be the same for the Armed Forces?
Group Captain Scaplehorn: I think
that the short answer is probably no, there is not a reason why
it should not be on the face of the Bill. Again, I am sure my
colleagues would agree with me. I think, in practice, the Service
police already apply a policy of specific defined operational
reasons just on day-to-day business. We do not go and just arrest
people because we can; there is always a reason for doing so.
I think my only concern about it is that because of the range
of operational environments in which we work I am not sure that
the reasons would, therefore, be a straight lift of PACE Section
24, which are themselves quite wide, but, nevertheless, there
will be other circumstances where it might be appropriate to arrest
in a military context. Therefore, I think, there could be some
difficulty in drafting a set of operational reasons. I think that
would be my only concern.
Q614 Vera Baird: What
do you think would be needed to be added to PACE?
Group Captain Scaplehorn: I think
there would be issues, for example, over where there were specific
Service offences—insubordination, for example, might be
a circumstance where an arrest might be appropriate, but that
certainly would not fit into any of the existing PACE Section
24 reasons.
Q615 Chairman: Because
there is no equivalent?
Group Captain Scaplehorn: Because
there is no equivalent of that particular offence. However, that
could be a particularly serious offence in a military context.
Commander Price: I think the point
is that we are dealing with Service personnel also being subject
to Service laws, so it is a very limited environment.
Q616 Mr Jones: It is not
beyond the wit of man to actually come up with a list of offences.
Do you think it would also—if you did that and it was on
the face of the Bill—have some sort of anchor back into
civilian legislation in terms of PACE now? When it was brought
in it was quite controversial, I remember, but now it is the accepted
operation of the police. Would it not also strengthen any accusations
that could be levelled at you that you have powers to arrest anybody
at will? I am not suggesting you do, but in terms of giving you
some protection in that respect, which is also given to the civilian
police.
Brigadier Findlay: I do not believe
it would unnecessarily constrain us but, of course, we have said
we use that principle anyway. The greater challenge is for those
who are not Service policemen and not involved in Service police
inquiries but, maybe, dealing with issues of military discipline,
particularly in an operational context.
Q617 Mr Jones: Can you
give us an example?
Brigadier Findlay: Insubordination;
communicating with the enemy; activities that are taking place
in an operational environment. Put yourself in Iraq or Afghanistan
where the Service police may not necessarily be on site or involved
in the issue at all. The Bill itself deals with Service discipline
as well as purely criminal offences.
Q618 Mr Jones: It is not
beyond the combined wisdom to come up with these lists.
Brigadier Findlay: It may not
be, and it may be unnecessarily tortuous to do so and prevent
a Commanding Officer acting appropriately in the circumstances
of an operational context. I think that would need to be thought
through quite carefully before you prescribed it.
Q619 Mr Jones: It does
not actually protect the Commanding Officer, in the sense that
you are increasing his role. One could actually get a situation
whereby a Service policeman (and it may happen presently), whereby
someone goes down the legal process of actually arguing that their
human rights, or whatever it is, have been infringed because of
being arrested arbitrarily. I am not suggesting you do, on a regular
basis.
Brigadier Findlay: You have made
that observation; I have got no further comment to make.
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