Examination of Witnesses (Questions 760-779)
MR JULIAN
MILLER, MRS
TERESA JONES,
MR HUMPHREY
MORRISON, COMMODORE
ROBERT FRASER,
BRIGADIER STEPHEN
ANDREWS AND
AIR COMMODORE
PAUL HUGHESDON
15 MARCH 2006
Q760 Chairman: You see the point
I am making?
Mrs Jones: Yes.
Q761 Chairman: It means that it is
not an absolute, fixed thing.
Mr Miller: I think that the only
sensitivity I can immediately see to that, though it is not something
which we have thought about, is this. Service colleagues might
feel that it was striking a slightly wrong note, and what we are
saying is that Service experience really is a necessary part of
this.
Q762 Mr Burrowes: I do not think
that the problems you suggest are insurmountable though. If it
is generally drawn, then you can deal with the detail in recruitment.
Mrs Jones: We will take that away.
Q763 Chairman: Is somebody going
to respond?
Mrs Jones: I think that we will
take that back.
Mr Morrison: I think the problem
of including even a reference to "having regard to Service
experience" is that those who are then trying to understand
what that means will still be faced with fundamentally the question
which Teresa has put, which is that Service experience is such
a wide notion. It is everything from having been in the TA to
something else.
Q764 Mr Burrowes: That is a matter
for recruitment, is it not?
Mr Morrison: It probably will
not be helpful to define it. However, I think that what we can
say is that it is very well acknowledged that the importance of
a clear understanding of the Service context will be a central
element in the selection process. I think that is well understood.
Q765 Mr Burrowes: In relation to
the powers of entry, search and seizure being subject to the same
conditions currently applicable to searches under the Armed Forces
Bill 2001 and set out in the relevant orders, will that be the
case? Will there be that compatibility?
Mr Morrison: I am sorry, I was
not sure if I had caught what you had said. The provisions that
we have in the Bill are basically the same, including the relevant
powers, as we had in the 2001 Act—the Armed Forces Act 2001.
There are really two areas. One is detail, applying PACE provisions
with modifications. The advantage of having that and retaining
it in SIs is that what we do is apply these various PACE provisions
with modifications. We can check and update the modifications
fairly easily, by having them supported in legislation; but the
basic application of the PACE provisions will be the same. To
be honest, it saves setting out what effectively would be large
chunks of PACE in the Bill. You are basically looking at another
Act where it is all set out fully in primary legislation, and
what we are doing is making the necessary modifications to fit
it in. It would be a bit odd to set out whole sections of PACE,
with minor modifications in primary legislation, which adds to
the length of the Bill. There is a separate one, which is the
review of the entry, search and seizure order, which we have under
the 2001 Act. It is rather different, because that is a special
variation—quite a significant variation—on PACE, to
allow supervision by judicial officers of decisions by Commanding
Officers to allow searches and so on, in certain limited circumstances.
That gets down to quite a lot of detail of procedural controls
and supervision. Again, it is a balance. We thought that level
of detail, as at present, fits well into an SI; it does not go
to the principle of the thing, which is fully set out in the primary
legislation in the Bill and, at the moment, in the 2001 Act.
Q766 Mr Jones: One of the main issues
when PACE was introduced, and one of the basic things in it, is
that you are actually told why you have been arrested or detained.
Are there any military or operational reasons why that cannot
be done in the military?
Mr Morrison: We do do that. You
are quite right that PACE sets out provisions for giving reasons,
and that obviously came from 1984. However, our view is that the
common law already provided, before that, the duty to give reasons.
There were a number of cases well before PACE which went into
that—cases like Christie v Leachinsky. The Home Office
frequently decides to set out in legislation, and perhaps to restate
or develop, common law provisions. In this case they made the
change in 1984. Our difficulty is that, if we set out all the
clarifications and re-setting out of the common law which are
put into statute, our legislation would become totally unwieldy.
As we are confident that under the common law reasons must be
given, and there has been no suggestion that there has been a
problem about giving reasons in practice—it is the well-established
practice, rightly so, of the service police to do so—we
did not think that we needed to set out that part of the 1984
Act. With all Home Office legislation there is this constant consideration
going on: how much do we repeat and set out afresh in our legislation?
Our problem is that we cannot afford to produce a volume of legislation
which is remotely comparable in size with the statutes governing
criminal law. So we rely in some cases on the common law, on those
provisions, and do not add in the provisions from Home Office
legislation into our Bill.
Q767 Mr Jones: One of the other issues
that PACE makes provision for are the rules around detaining people.
In effect, at the moment a Commanding Officer could detain somebody
for 96 hours without charge. Is there any risk there in terms
of challenge, in terms of the human rights legislation? Also,
separately, PACE has quite an extensive system of documentation
around how to detain people and what happens to them when they
are in detention. Again, is there any reason why accurate records
of times when they will be detained, and so on, cannot be kept
by the military?
Mr Morrison: A lot of aspects
of PACE are of course included in our legislation. Ones where
PACE was doing something new in terms of the period, including
all the provisions related to investigation and a lot of provisions
which were adapted and reflected in the 2001 Act, are included
in our legislation. Similarly, custody provisions and so on, including
record-keeping, limits on time, are all in our legislation—either
in subordinate legislation or in primary legislation. In so far
as we have identified any elements in PACE which we feel ought
to be added specifically, which have not so far been covered,
we have done so. As I say, I am not aware of anything which we
think would be appropriate and which could be applied, even with
modifications or some sort of equivalent provision, which we ought
to have and which we do not have or will not get.
Mrs Jones: It is worth mentioning
that the period of 96 hours is not right. Generally speaking,
a CO can only detain for 48 hours, and it is subject to reviews.
Commodore Fraser: It would be
very exceptional to be 96 hours without a judicial officer being
required to make a decision about that. It would have to be an
operational situation, where you were completely incommunicado
or something like that, I would suggest. Normally 48 hours is
the maximum time.
Q768 Mr Jones: Ninety-six hours you
obviously could do without a judicial—
Commodore Fraser: It is possible,
but unusual.
Mr Morrison: I think that Clause
102 deals with that particular point. It has a provision which
very closely reflects PACE, which says basically the limit is
48 hours. You have to have had judicial authority for continuing
custody within 48 hours. If you apply after 48 hours to the JA
and it appears to the JA that it would have been reasonable to
apply before the end of 48 hours, the JA must refuse to grant
the extension of time. That is the same approach as in PACE. The
CO's role is roughly equivalent to the relationship between the
relevant police officer and a magistrate under PACE. In that regard,
therefore, we very closely reflect PACE in the Bill.
Q769 Mr Jones: Could I ask you about
an issue which came up last week when we were away and when we
met various Service police? It is their investigatory role, which
is clearly different from some of the other duties that they have.
We heard from the RAF, for example, that they do a whole range
of things, from close protection all the way through to this.
Did you give serious consideration—and I understand the
difficulties in this—to having a Tri-Service special investigations
branch that actually looked at this?
Brigadier Andrews: I think that
the key thing is for Service police investigators to be properly
qualified to conduct investigations in the sorts of circumstances
that they may find themselves investigating. So in the case of
the Royal Military Police they are soldiers who are investigators,
and they are trained appropriately. I think the situation we have
at the moment is that the special investigation branches of the
Service police do work very closely together. They are essentially
trained together. However, there will come a point where investigators
who are soldiers may have to deploy their personal experience
in training, in the dangerous and uncertain circumstances of an
operational theatre.
Q770 Mr Jones: A case was raised
with us last week by the RAF police, an SIB officer, where he
had investigated an incident of drunk driving on an airbase and
was overruled by the Commanding Officer. Do you think that there
is any problem in terms of Commanding Officers being under the
same Service? What you are actually arguing for is the total independence
of his role as an investigator. He was quite forceful about it,
and his colleagues were as well.
Brigadier Andrews: Let me just
speak from an Army perspective. At the end of the day, we are
all in the Army and so we have to respect, as a matter of policy—and
of course in future as a matter of law—the independence
of the Service police. Commanding officers do not interfere with
Service police investigations.
Q771 Mr Burrowes: Is it an issue
for the Air Force though, particularly in relation to the command
structure with those who are in the SIB compared to the Army,
and whether they have that same authority and level of regard?
Air Commodore Hughesdon: I am
not an expert on policing matters. You would have had more information
from the Royal Air Force Provost Marshal. As I understand it,
there is a move for some SIB-equivalent work to be more centrally
controlled through the RAF Provost Marshal. However, one of the
issues which Mr Jones highlighted was that those policemen on
an RAF base are quite often dual-hatted, or certainly have dual
skills. Whilst they might be primarily on special investigations,
the SIB line of business, they also have skills in counter-intelligence
and can be teemed and laded across, as the requirements fit. So
there is a need for them to be broadly under the CO's power on
station but, for investigative reasons, linked through to the
Provost Marshal. My understanding is that, through a separate
study, that line is being strengthened.
Q772 Mr Jones: It was an issue which
was raised specifically in the RAF rather than the Army; because
of, as David said, that connection between the CO and the actual—
Air Commodore Hughesdon: I would
be very interested to hear the circumstances of that one case.
You clearly have heard one case, and I would suggest that many
others are perhaps different.
Chairman: Can I be uncharacteristically
blunt about this? The gentleman in question and his colleagues
said that, in the RAF, Commanding Officers interfering in investigations,
particularly in cases where it involved officers, was endemic.
That was exactly what was said to us. I have to say that we pursued
the same point with naval and Army people and they did not feel
so strongly about it. Whether we just met an unfortunate group
of men who had had some bad decisions made, I do not know, but
they were very strong about that case. They felt that it was a
clear pattern of discrimination against non-commissioned—those
other ranks.
Mr Burrowes: Not exclusively contemporaneously
at the RAF, but historically it was a description of what has
been going on.
Q773 Mr Jones: Also, the issue they
raised—which I think is an important one, Chairman—was
that the reason why the Commanding Officer interfered in terms
of officers was the fact that, in the RAF, if you get a black
mark on your Service record, it was seen as dealing with it, and
that was the reason why the COs were actually interfering. Whereas
in the Navy I think it was raised as a badge of pride if you had
been court-martialled a few times!
Air Commodore Hughesdon: Do you
want to deal with that now?
Q774 Chairman: I think that it is
probably best if you reflect on that. We are only reporting something
that has happened. We are not proposing anything at this stage.
I think that it is important that you are aware that those things
were said to us.
Air Commodore Hughesdon: Clearly
your feedback is important in understanding how our system is
perceived more broadly.
Q775 Chairman: Exactly. Because of
the shortness of time, I am going to skip directly to Question
19 and then move on. Questions A and B in the additional questions—I
realise that people have not had as much notice of those, and
in fact some people may have had no notice of them—but,
as best we can, I do want to cover A and B in particular. We would
be very grateful if we could have some further written submissions
on everything that we have not covered, therefore.
Mr Miller: Yes, of course.
Chairman: I do think it important that
those three questions are covered before we conclude today. So
I will move directly to Bob.
Q776 Bob Russell: We did come across
a welcome new administrative action regime that the Army introduced,
and I think that we ought to put that on the record—AGAI
67—which I believe stands for Army General Administrative
Instruction.
Brigadier Andrews: Yes, it does.
Q777 Bob Russell: I think we should
say that it has been something that has been the welcomed at—I
got the impression—all levels.
Brigadier Andrews: Let me record
my thanks for that as well!
Q778 Bob Russell: There were two
previous instructions before that. Possibly, if one could be knocked
out, that would at least be Route 66! Following on the point which
Mr Jones made, which I think is very pertinent, on our visit to
Cyprus, Oman and Iraq—where we met people from the different
Armed Forces—it was noticed that the RAF had a different
approach to disciplinary offences to the other two Services. It
is the point that Mr Jones made. Where an RAF person commits a
misdemeanour and it then goes through the process, they are more
likely to suffer the consequences of that for up to five years,
or whatever, whereas for a sailor or a soldier it is dealt with
more immediately, and it is done and dusted. While I know the
Committee is anxious that we ensure that the ethos of all three
Services remains, if we are having a harmonisation bill here,
could I ask how you feel that the problem will be handled if there
is to be harmonisation?
Air Commodore Hughesdon: Ethos
is clearly very important to all three Services, and I think that
it is right that we reflect on that. Administrative action covers
a wide range of things, and of course AGAI 67 works very well
for the Army, both at minor sanctions level and all the way up
through to the top end. Certainly for the major pieces of work,
the Air Force and the Army are very much in tune about the way
we deal with people. There is a discussion going on at the minor
sanctions level, which is probably the area in which you saw most
benefit. Clearly that works well for the Army. In actual fact,
those RAF personnel who operate on Army bases or under Army command
are also subject to AGAI 67, and that works well for my people.
That is because there is clarity about how individuals will be
dealt with; compared with previously. You are right, we have a
different ethos, a different way of disciplining our people: no
less efficient, but a different way. It does give clarity to the
way that they will be dealt with. Whether or not that will work
equally effectively on RAF bases, we are thinking about right
now. In all of this, it is an evolutionary process rather than
revolutionary; we need to match it with the ethos. What we need
to guard against is the dichotomy of whether we see more charges
being successful—does that equal more or less discipline?—and
at what line do we move from administrative to a disciplinary
action? That is an issue for us, and I recognise entirely Mr Jones's
earlier point that there is a perception that a charge will affect
your career in the longer term. Clearly all the punishments that
are awarded are subject to the Rehabilitation of Offenders Act—two
years or five years. However, everybody is judged against themselves.
We do not hold, for example, a further Service or a promotion
or appointment board across the three Services. We compare RAF
with RAF, not RAF with Army. So everybody will have been dealt
with equally within the same clan. First let me say that, in a
promotion board or further Service board, for example, somebody
with professional competence will be considered, and that is where
we come from. Then, as we go through the granularity, as we try
to, if you like, find dividers or grade one person above another,
we will look for discriminators. Clearly, indiscipline is a discriminator.
If it is recent, that is a much more forceful point than if it
was three, four, five or six years ago.
Q779 Bob Russell: I recognise the
point that you are making, within the RAF. With dual deployments,
and indeed Tri-Service deployments, you can have an airman committing
the same misdemeanour as a sailor or a soldier, and his punishment
will be disproportionate to that which is given out to the sailor
or the soldier.
Air Commodore Hughesdon: Certainly
if they are operating under an Army command, then they would be
subject to any punishment there; so therefore those sorts of sanctions
would apply equally.
| 
