Select Committee on Armed Forces First Report

4  Investigations and prosecutions

Service police

60. The Service police are not a militarised version of the civilian Home Department police forces.[99] The police force of each Service has distinct roles and responsibilities that relate to that Service. For example, the Royal Military Police have responsibility for traffic control on operations, and the RAF Police have a particular responsibility for counter-intelligence.[100] The Special Investigation Branches (SIB) of each of the three Service police forces are responsible for investigations. There has been criticism of the SIB in relation to the investigation of offences.[101] Mr Rooks told us that "the SIB was under-resourced" for the investigations that had occurred after the cessation of hostilities in Iraq.[102] The three Provost Marshals made clear to us in evidence that they would appreciate further resources, particularly manpower.[103]

61. Brigadier Findlay explained that there were particular challenges faced by the Service police which are not characteristic in a civil police investigation:

    The incident might have taken place in Germany. The troops may then take part in exercises in Canada, at the British Army unit or they may go on leave to the United Kingdom. We have a very, very mobile population. The two major reasons for delay in investigations relate to either forensic submissions […] or indeed the availability of military witnesses.[104]

He told us, in relation to investigations in Iraq, that:

    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.[105]

He further explained that:

    … 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.[106]

62. We spoke to SIB officers during our visits, who described to us the extremely complex and often dangerous task they face in investigating incidents in Iraq. General Walker told us that:

    … it is extremely difficult, it is even more difficult, to conduct an investigation in an operational theatre, as you can imagine. Trying to get forensic evidence at a scene where there is an alleged crime to have taken place when bombs and bullets and things are going off is incredibly difficult and they are very time-consuming.[107]

SIB officers in Iraq told us that their difficulties in collecting witness statements were exacerbated by Iraqi civilians being advised by UK-based civilian lawyers not to co-operate with police investigations, and to seek compensation. Criticism of investigations in Iraq should be considered in the light of the extremely difficult environment in which the Special Investigation Branches are operating. Those who advise Iraqi civilians not to co-operate with police investigations in order to pursue compensation claims do a disservice both to their prospective clients and to the Armed Forces. We deplore this practice. We are therefore drawing this aspect to the attention of the Law Society and the Bar Council, inviting them to consider whether touting for business in this way represents an acceptable professional practice on the part of those subject to their respective regulation.


63. We have acknowledged the difficulties faced by the Service police in investigating incidents in operational theatres. There has also been criticism of investigations in the United Kingdom. The Defence Committee's 2005 Duty of Care report noted: "A consistent criticism from the families of recruits who died during their initial training is that the deaths of their children were not properly investigated".[108] The investigation of unexplained deaths of this sort are subject to a protocol between the Service police forces and the Association of Chief Police Officers that sets out the circumstances in which the civilian or Service police forces take the lead in an investigation.[109] In written evidence, JUSTICE expresses concern about "how issues of jurisdiction will be resolved when both civil and Service authorities have jurisdiction in any given case".[110] Within the United Kingdom the civilian police, and therefore the civilian jurisdiction, has primacy for investigations. As Brigadier Findlay explained, "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".[111] Mr Rooks described the normal arrangements with the civilian police, saying that:

    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 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 […] 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.[112]

64. Mr Blake's Review noted that guidance on primacy should be "clear and unambiguous", in order to "avoid confusion that could diminish the scope and nature of future investigations".[113] It also observed "Where the Royal Military Police (RMP) has primacy for an investigation, the quality of the investigation may vary according to resources, training and the context of the investigation".[114]

65. We discussed with the Provost Marshals the impact on the Service police's reputation of the criticism of SIB investigations in the United Kingdom and abroad.[115] Mr Rooks told us that the RMP would be subject to inspection by Her Majesty's Inspectorate of Constabulary (HMIC).[116] The Minister for the Armed Forces, responding to questions on the Blake Review in the House of Commons, confirmed, in relation to the Review's recommendation for HMIC inspection of the RMP, that:

    Her Majesty's Inspectorate of Constabulary will run a slide rule over the RMP's special investigations branch, which is at the critical end of the investigative capacity, to make sure that the RMP meets the very high standards that have been set.[117]

We welcome the announcement that Her Majesty's Inspectorate of Constabulary will inspect the Royal Military Police's Special Investigation Branch. Such an inspection regime will raise standards in the Special Investigation Branch and raise public confidence in its work. We recommend the HMIC inspection regime is extended to the rest of the Royal Military Police and the other two Service police forces.


66. MoD's intention is to bring the procedures for the Service police into line with the Police and Criminal Evidence Act 1984 (PACE). This process is part of the overall objective to bring the Service discipline legislation in line with civilian legislation where appropriate.[118] Mr Morrison explained that much of the detail of the provisions would be in secondary legislation, in part to avoid setting out large sections of the PACE legislation in the Bill.[119] He also noted that some aspects were covered by common law.[120]

67. We asked MoD witnesses about custody powers in the Bill, which Mr Rooks explained were the only part of PACE that would apply directly, with modifications, to the Service police.[121] Provisions relating to arrest, stop and search, powers of entry, and search and seizure have been drafted to be as similar to PACE as appropriate.[122] Mr Morrison confirmed that the Bill's provisions relating to the powers of the Service police were based "as closely as we can" on PACE, but that there had to be differences to take account of the particular circumstances in which the Service police operate.[123] The details of these provisions will be provided in secondary legislation.

68. In the civilian system, the custody process is separated from the investigation, and there are established procedures, enforced by statute, relating to the powers to hold a person in custody. Brigadier Findlay explained that:

    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.[124]

We welcome the general principle of applying the provisions of PACE to the military system where appropriate, and accept that it is not necessary to set out those provisions in the Bill.

69. Parliament must have scrutiny of the detailed provisions in secondary legislation, rules and guidance that will implement PACE-like provisions in the military system.

Director of Service Prosecutions

70. Currently, the three Services each have their own prosecuting authority. In the Army and the RAF, the head of the prosecuting authority is also the head of that Service's legal branch. The Bill will establish a single tri-Service Director of Service Prosecutions, who will fulfil the prosecuting function for all three Services.[125] For the Army and RAF, the present 'double-hatted' link between the prosecuting authorities and the legal services departments will be removed under the new provisions. Major General Howell explained that the move to a single prosecuting authority would also provide economies of scale.[126] We recognise the merit of bringing the tri-Service system under a single prosecuting authority.

71. General Walker said that it would be preferable if the Director of Service Prosecutions had appropriate military experience.[127] He told us that:

    You do need to have somebody who knows about the heat, the stress, the pressure, the stones and the bombs being thrown at you in modern circumstances or the confined nature of your activities in the back of an armoured vehicle or that rather lonely activity that goes on up in the sky above somewhere where you are flying your aeroplane or on board a ship. Somebody needs that as a context, I think, to make all these sorts of judgments.[128]

The three Service Chiefs also supported the Director of Service Prosecutions having military experience. Admiral Sir Jonathon Band, the First Sea Lord, told us that:

    We all agree there is something about military operations which is different and therefore we need our own Act and our own context, and therefore there is a consistency in that the court martial can be and should be slightly different from a county court case, and I think to have a prosecuting service run by people who do not know the context in which this is all enacted is just counter-intuitive.[129]

72. We asked MoD officials about the desirability of requiring the Director of Service Prosecutions to have military experience. Mrs Jones, head of the Bill team, explained the difficulties in framing a description of military experience that could be put into the Bill.[130] She told us that:

    Our difficulty with actually putting that on the face of the Bill is in defining what you mean by "Service experience". […] Are you talking about somebody who held a short Service commission 20 years ago? That counts as Service experience. Are you talking about somebody who has been in the front line on operations? Not many lawyers are in the front line on operations, although they visit operational theatres.[131]

73. It was clear from our discussions, however, that MoD shares our view on the desirability of the DSP having an appreciation of the military environment, and preferably military experience. Mr Morrison said 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".[132] Service personnel must have confidence that the person taking the decisions on prosecutions has sufficient understanding of the context in which the events occurred. Whilst we appreciate the difficulties involved in defining military experience in statute, we do consider it important for the Director of Service Prosecutions to have had military experience.

74. The Director of Service Prosecutions will be superintended by the Attorney General, who currently superintends the three individual Service prosecuting authorities. The role of the Attorney General in the decision-making process was discussed with the three heads of the prosecuting authorities. Major General Howell described the relationship as being similar to that between the Attorney General and other small prosecuting organisations. He explained that in practice "… we take the view that he has the right to be consulted on major cases".[133] Major General Howell went on to say that:

    One matter I must make absolutely clear, and I am sure this goes for my two colleagues as well, we have to accept that the final decision on whether to court martial someone ultimately is our decision; it is not the Attorney's or anybody else's. […] that the decision is ours.[134]

The Service Chiefs and the Chief of the Defence Staff were content with the arrangements for superintendence of the Director of Service Prosecutions by the Attorney General.[135]

75. We are content that the Attorney General, as the Government's principal legal adviser, will retain an advisory and superintendent role in respect of the new Director of Service Prosecutions.

99   See Ev 164 ff for description of service police forces. Back

100   Qq 584, 585 Back

101   See, for example, "Army faces accusation of cover-up over Iraq deaths" The Times, 27 February 2006, p 12. Back

102   Q 515 Back

103   Qq 510-513 Back

104   Q 516 Back

105   Q 539 Back

106   Ibid. Back

107   Q 441 Back

108   Defence Committee, Third Report of Session 2004-05, Duty of Care, para 328 Back

109   Ibid., paras 330-339 for discussion about the role of civilian and service police and Ev 164-165. Back

110   Ev 186 Back

111   Q 534 Back

112   Q 532, see Ev 161-163 Back

113   Blake Review, para 12.29 Back

114   Ibid., para 12.30 Back

115   Qq 550 ff Back

116   Q 551 Back

117   HC Deb, 29 March 2006, col 859. See also Qq 551 ff and Blake Review, Recommendation 24, page 400. Back

118   Parts 3 and 4 of the Bill set out the provisions relating to powers of arrest, search and entry, and custody. Back

119   Qq 765-766 Back

120   Ibid. Back

121   Q 608. See Ev 158-159 Back

122   See Ev 160-161 Back

123   Q 35 Back

124   Q 522 Back

125   Clause 355 creates the post of Director of Service Prosecutions. Back

126   Q 159 Back

127   Q 423; Clause 355(2) prescribes the minimum qualifications required to hold the appointment of Director of Service Prosecutions. The provisions do not exclude a civilian from being appointed as Director of Service Prosecutions. Back

128   Q 426 Back

129   Q 359 Back

130   Qq 758 ff Back

131   Q 758, see Annex Volume II, 30 March 2006, col 156 Back

132   Q 764 Back

133   Q 185 Back

134   Ibid. Back

135   Qq 355-356, 436 ff Back

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