Select Committee on Armed Forces Written Evidence

Supplementary Memorandum from the Ministry of Defence

  This memorandum sets out the Government's answers or provides further information in relation to points that were raised by select committee members during the evidence session on Wednesday 1 March or subsequently. Wherever possible, the information here is linked to the question in the evidence session where the issue was first raised.Q529: RULES GOVERNING PRE- AND POST-CHARGE CUSTODY

Current position

The three Service Discipline Acts are identical and in substance are based on the Police and Criminal Evidence Act 1984 and the Bail Act 1976. For example, the grounds for keeping an accused in pre- or post- charge custody are essentially the same as in the civilian system, although the assessment of whether the grounds are met pre-charge in the service system is made by the arrested person's commanding officer rather than by a senior policeman; and post-charge by a judicial officer rather than a magistrate or civilian judge. These practical arrangements reflect the service needs and each of the armed forces has similar rules which regulate both pre-charge and post-charge custody (eg Army Custody Rules 2000 SI 2000/2368).

Once the commanding officer has been informed of an arrest and the need for pre-charge custody (which must occur as soon as practicable after the arrest), the obligation and responsibility for custody is his, although he may delegate his responsibilities by virtue of Defence Council regulations made under section 75E(1)(a) of the Army and Air Force Acts 1955 and section 47F(1)(a) of the Naval Discipline Act 1957 to ensure that there is always an officer on hand who has responsibility for these matters. He may authorise pre-charge custody for up to 48 hours but beyond this period, and for post-charge custody, he must apply to a judicial officer for extensions to the authorised custody of the accused.

Pre-charge custody

For pre-charge custody the commanding officer can authorise periods of up to 12 hours, then up to 36 hours and then up to 48 hours (section 75A of the Army and Air Force Acts 1955 and section 47B of the Naval Discipline Act 1957). He must review his decision before the expiry of the period for which he has authorised the custody. If, on review of an authorisation of up to 48 hours custody, there is a need to go beyond this period the commanding officer must make an application to a Judicial Officer who, if satisfied of the grounds, can authorise pre-charge custody for up to 96 hours.

As in the civilian system, there is provision to allow for postponement of review where it is not practicable to hold it, for example where the suspect is being questioned and it would prejudice the investigation to interrupt the interview (section 75B of the Army and Air Force Acts 1955 and section 47C of the Naval Discipline Act 1957). Also, there are provisions to cover the situation where the judicial officer hearing cannot take place within the 48 hour period (in which case there must then be six hour reviews) but the 96 hour period cannot be breached (section 75C of the Army and Air Force Acts 1955 and section 47D of the Naval Discipline Act 1957). But if it appears to the judicial officer that it would have been reasonable for the commanding officer to make an application before the initial 48 hours had expired, he must refuse an application for continued custody (section 75C(7) of the Army and Air Force Acts 1955 and section 47D(7) of the Naval Discipline Act 1957).

If at any time during these periods of pre-charge custody the commanding officer considers that the grounds for pre-charge custody have ceased he must release the suspect unless it appears to the commanding officer that the arrested person was unlawfully at large when he was arrested (section 75 of the Army and Air Force Acts 1955 and section 47A of the Naval Discipline Act 1957).

In each of the Services there are proformas which require relevant information to be provided to enable the above decisions and procedures to be complied with and to allow the suspect to make written representations at the relevant point or to obtain legal representation for any Judicial Officer hearing.

Post-charge custody

If the accused needs to be kept in custody after charge, the commanding officer must apply to a Judicial Officer who makes the decision on criteria substantially the same as those set down in the Bail Act 1976 when authorisation of custody is considered in the civilian system. This can be for eight days, when it must be reviewed by the Judicial Officer or, where the accused has legal representation, they may consent to this period being 28 days (section 75G of the Army and Air Force Acts 1955 and section 47H of the Naval Discipline Act 1957). On each review the Judicial Officer will consider the criteria to decide whether the accused can be further retained in custody.

If at any time during these periods of post-charge custody the commanding officer considers that the grounds for post-charge custody have ceased he may release the accused, or apply to the Judicial Officer to request a review of custody (section 75G(2) of the Army and Air Force Acts 1955 and section 47H(2) of the Naval Discipline Act 1957).

Changes under the Bill

The provisions are substantially unaffected by the Bill and continue to reflect the relevant provisions in the Police and Criminal Evidence Act 1984 and the Bail Act 1976. Any applications currently made to a Judicial Officer will in future be made to a judge advocate. This is because the creation of the standing Court Martial means there will always be judge advocates available, so we are dispensing with the references to judicial officers. The Bill has also provided an opportunity at clause 107 to allow judge advocates to be able to release an accused from custody but impose conditions on him equivalent to bail conditions provided for in the civilian system under the Bail Act 1976. The Bill and secondary legislation will take into account the revised procedures for charging but do not affect the substance of the provisions. Under clause 112 of the Bill, all of the custody rules and regulations will be made by the Secretary of State, which is a departure from the current system where some rules are made by the Secretary of State and some pre-charge regulations are made by the Defence Council. This is the result of harmonising the rule making powers under one clause.Q547: LESSONS LEARNED ON UNDETERMINED DEATH

The committee asked to see a copy of the written guidance that had been issued. Brigadier Findlay undertook to pursue this. A copy of the relevant defence instruction, referenced 2005DIN02-243, is attached.Q580: SERVICE POLICE INVESTIGATIONS

The Committee asked whether there is a gap in the Bill that could allow a commanding officer to miss off the duty to inform the service police. Part 5 of the Bill is intended to include a comprehensive statutory mechanism for the appropriate investigation of service offences. There are three main provisions. The clauses are interwoven to ensure that an appropriate investigation is conducted wherever there is an allegation that a service offence has, or may have, been committed.

First, allegations or evidence of an offence within a list of serious offences must be referred to the service police (clause 113). The offences are listed in Schedule 2. Second, there is a power to make regulations prescribing further circumstances in which the service police must be informed (clause 114). Third, clause 115 makes general provision to ensure the proper investigation of allegations or circumstances indicating that any service offence might have been committed. Under this clause the commanding officer must ensure that an appropriate investigation is carried out or ensure that the service police are aware of the matter. Where the service police are aware of the matter, the commanding officer has no further responsibility. This reflects the intention that, where the service police are involved, the commanding officer should leave the matter to them.

The overall effect is that the commanding officer must ensure that all possible service offences, whether serious or not, are appropriately investigated. Wherever it is appropriate to do so, the service police will have to be involved. For the prescribed offences and in other prescribed circumstances there is no issue as to what form of investigation is appropriate: the service police must be informed.

It is envisaged that the prescribed circumstances under clause 114 will be of two main types. The first type is more serious examples of some offences which are not themselves specified in Schedule 2. The second is circumstances in which there is no immediate allegation or evidence of any offence but which should nevertheless be investigated by the service police. An example might be an unexplained death on a base.

Once a duty has arisen under clause 113 or 114 to involve the service police, or where the service police are investigating a matter, a commanding officer is prevented by clause 118(3) from taking any disciplinary action. The commanding officer can only take disciplinary action in the case once it has been referred to him by the service police (clause 118(4)). This is to prevent the commanding officer from pre-empting the results of the service police investigation.

By these provisions it is intended to ensure that, wherever appropriate, the service police will investigate alleged service offences and other prescribed circumstances.Q589: GIBRALTAR POLICE STAFF ASSOCIATION

Industrial relations with the Gibraltar Services Police are underpinned by a constructive and co-operative relationship between the Gibraltar Service Police Staff Association and the Gibraltar Command at a working level. The Staff Association and local management have been unable to agree on the content of a new Whitley constitution that would follow normal MoD UK practice, although dialogue continues with a view to resolving this issue. There is ongoing legal action brought against the Command concerning a disputed backdated pay claim. The case has been subject to action in the UK High Court with summary judgment announced on 8 March in the Department's favour. The Staff Association are now considering an appeal. Until this matter is resolved it may be difficult to make progress on the issue of a new constitution.Q625: RESOURCES

Having considered the committee's questions in the light of the evidence that was given at the session on Wednesday 1 March, we do not believe there is a need to add to the information that ware given by the Provost Marshals on both forensic capabilities and numbers of investigators.NEED TO EXTEND POWER TO SEARCH BEYOND SERVICE POLICE

Committee members wished to know why it was necessary to extend the power to search an individual beyond the service police. The answer is that service police might not always be immediately available, particularly in smaller units or those deployed on operations. Powers of arrest are available to other service personnel who are not service police in circumstances where neither the service nor the civilian police are available and the commanding officer believes that further delay would result in the loss or destruction of evidence, or that the suspect might escape or do harm to himself or others. Similarly the power to search on arrest is extended to service personnel who are not police, again where the commanding officer believes that to delay and wait for a police agency may result in the suspect concealing an item to assist his escape from custody or conceal, damage, alter or destroy evidence. It should be stressed that this power will only be exercised where it is not possible for the service or civilian police to conduct the arrest and search. Examples of such circumstances are small isolated units deployed on operations, submarines or small warships or operational units deployed in situations by which the movement of troops is severely restricted, perhaps to aviation only, and thereby limiting the ability of the service police to attend an incident.STOP AND SEARCH POWERS

Committee members wished to know what had been our experience of the exercise of the powers to stop and search since they were introduced under the Armed Forces Act 2001, and in particular whether the powers had only rarely been exercised by persons other than the service police.

No central record is kept of the instances where searches have been carried out under the powers introduced under the Armed Forces Act 2001 but the Provost Marshals judge that the powers are nevertheless useful, for example where covert surveillance indicates that a serviceman might be bringing controlled drugs onto a unit. The powers are used only very rarely by the service police, and the Provost Marshals therefore consider it extremely unlikely that they would have been exercised by other personnel.POLICE PROTOCOLS

A copy is attached of the protocol agreed between the Department and the Association of Chief Police officers in relation to the investigation of deaths on Ministry of Defence establishments (not printed). Discussion is underway between the Association and its Scottish counterpart about the possibility of establishing for Scotland a protocol similar to that which exists between the service and civilian police forces in England, Wales and Northern Ireland. The aim of this discussion is to produce a similar instruction.


Title: Initial Action to be taken by non-police personnel on discovering an incident involving death or where death is likely

Audience: All Service personnel

Applies: Immediately

Expires: When rescinded or replaced

Reference: 2005DIN02-243

Released: December 2005

Content: Guidance on initial action to be taken when discovering an incident involving death or serious injuryINTRODUCTION

  1.  There may be occasions when personnel will discover a serious incident; involving death or where death is likely. In these cases a police inquiry will normally follow. Depending on the proximity of the police to the incident it may be some time before the police attend the scene and take control. In order that procedures are carried out to minimize and/or prevent further injury and maximize the opportunity for the police to secure evidence the following guidance and aide memoir, which should be disseminated widely to all ranks and form the basis of more comprehensive unit SOPs, is provided for non-police personnel.PREVENT FURTHER LOSS OF LIFE (INCLUDING YOUR OWN) OR INJURY

2.  The main priority on discovering an incident is to prevent further loss of life or injury. The Senior person unconnected with the incident is to assess the situation, take charge and take appropriate and safe action to either:

    (a)  Remove the injured person away from imminent danger, eg assist people from a smoke filled room. However, under no circumstances must a seriously injured person be removed if there is no imminent danger as this could cause long-term medical problems or fatality if not handled correctly.(b)  Eliminate the danger, where safe/minimal risk to do so, eg extinguish a small fire.TEND THE INJURED—SEEK MEDICAL ASSISTANCE AT THE FIRST AVAILABLE OPPORTUNITY

    3.  Once further loss of life or injury has been prevented any injured personnel at the scene should be tended in accordance with current training.

    4.  The necessary medical or other assistance as required should be summoned at the earliest opportunity.

    5.  Where practical those suffering from shock, trauma or distress should not be left alone or in circumstances where they could further injure themselves or others.

    6.  Uninjured personnel at the scene should be segregated and should normally be asked to remain at the scene until the arrival of the police. The details of those personnel who are possible witnesses or suspects should be noted. Those person(s) involved, or suspected to be involved, in an incident or found at or near a scene should be asked or ordered, where the necessary authority exists, not to wash themselves or their clothes until seen by the police.

    7.  Only a Medical Officer can certify death at the scene and therefore every effort should be made to revive or treat personnel until tended by trained medical staff. Where it is obvious that a person is dead and cannot be revived the deceased should remain exactly as discovered and not touched or moved.TAKE APPROPRIATE MEASURES TO PROTECT THE SCENE

    8.  It will be vitally important that when the police arrive, that the scene (and everything within it) is exactly as it was discovered. In particular:(a)  Offices, Accommodation etc

      (1)  Where the scene of an incident is under cover it may be able to be secured by locking the entrance/exit doors. In these instances, windows and any other methods of entry exit should be secured and the room/area cleared of all other occupants. Thereafter, the key must be retained by a person in authority until the arrival of the police. It is also important that the room/building remains undisturbed and those occupants (or other unauthorised visitors) are not allowed access to the room/area either deliberately or accidentally, for any reason. If the incident involves a jump or a fall, windows should be left as they are.

      (2)  Should it be suspected that other keys to the area exist or you have any doubts over your ability to fully secure the scene you should position a guard(s) at the points of access/exit.(b)  Outside areas. Where it is not possible to secure the area by utilising existing physical barriers, access to the area by unauthorised personnel should be physically prevented. At the first opportunity a cordon using personnel or `mine tape' should be placed at a suitable distance around the scene. The type of incident and area will determine the size of cordon.(c)  Visitors. It is important that only personnel required to attend the scene are allowed within the cordon. Those personnel not connected to the incident or who have no legitimate purpose at the scene must not be allowed into the scene and should be instructed to leave the area. A record of all persons attending the scene within the cordon is to be recorded and handed to police on arrival.

      9.   Articles at the Scene. It is essential that anything at the scene is found by the police. Under no circumstances should the area be cleaned and any items at the scene should be left in the same condition and position as they were discarded. In particular:(a)  IEDs/Suspect Packages etc. These should remain in situ and under no circumstances should these be examined, removed or tampered with. The use of mobile phones, other communications or bright lights (flashlights etc) is to be avoided.(b)  Firearms. These should not be touched, handled or moved, made safe, unloaded, cleaned or tampered with in any way. It will be important that the police find any firearm in the same condition as it was left. If you have handled the weapon or know that any other person has, you should notify the police immediately on their arrival.(c)  Spent Cases. These should not be collected but should be left in position until the scene is examined by the police.(d)  Knives or Other Weapons. Knives (or other weapons if appropriate) should not be touched, handled or moved.(e)  Documents. Any notes, whether sealed or otherwise, and any other correspondence or documents found at the scene should not be handled and must remain undisturbed.(f)  Electrical Equipment (including computers/mobile phones/radios/flashlights). Any electrical equipment found should not be tampered with, switched on/off, used or removed.(g)  Clothing/Garments. Are not to be removed from the scene or injured personnel (unless for medical reasons by trained medical staff).(h)  Blood/Bodily fluids etc. Blood and other bodily fluids stains and marks should be left in situ. Unless taken to a medical facility with the patient for emergency treatment, all body parts should be left at the scene until the arrival of the police. Nothing should be cleaned until the arrival of the police.REPORTING

      10.  It is important that personnel discovering an incident report it and obtain assistance at the earliest practical opportunity. Once in a position to do so personnel should report the incident to a person in authority, ie duty staff/police etc, by the quickest and safest means possible, eg mobile telephone, in person etc. Where two people, unconnected with the incident, are present one should remain to protect the scene whilst the other reports the incident and/or seeks assistance.

      11.  Duty military personnel notified of an incident should ensure that the action above has been completed and immediately report or arrange for the details to be reported to:

      (a)  In the UK, local civil police, Service Police and/or MDP. Overseas, the Service Police.(b)  The chain of command (in accordance with local SOPs).



    —    Protect and/or remove injured from imminent danger. If there is no danger do not under any circumstances remove an injured person.—    Where safe/minimal risk, eliminate danger.—    Senior person present unconnected with the incident—take charge.


    —    Provide first aid in accordance with training.—    Those in shock, trauma or distress should not be allowed to further harm themselves or others, and where possible do not leave alone and/or out of sight.—    Segregate uninjured personnel involved in the incident pending arrival of police.—    Record names and addresses of evacuated casualties, and where they have been evacuated to.—    Only a medical officer can certify death.—    Where it is obvious that the person is dead the body should not to be touched or moved.—    Summon assistance.—    By quickest means at first, safe opportunity.


    —    Do not touch, remove or tamper with anything (or allow anyone else to do so). Do not remove blood or other bodily materials.—    Cordon off the scene. Do not allow unauthorised personnel inside cordon. Size of cordon determined by incident and terrain.—    If the incident has occurred in a building or indoors, rooms should be vacated, secured/locked and keys retained. If incident involves a jump or fall, leave windows as they are.—    Occupants or visitors should not be allowed re-entry—    Record details of any person permitted inside the cordon.—    Segregate potential witnesses/offenders pending the arrival of police. Record names, addresses and contact numbers of any unwilling to remain at the scene.


    —    DO NOT touch, remove, permit to be removed any article from the scene. In particular:
        • IEDs/Suspect Packages—DO NOT touch (avoid use of mobile phones, radios or flashlights).

        • Firearms—DO NOT touch, handle, move, make-safe, or clean.

        • Spent cases—DO NOT touch, handle or move.

        • Knives or other weapons—DO NOT touch, close, handle or clean.

        • Written Notes—DO NOT touch, handle, open or read.
        • Electrical Equipment—DO NOT touch, use or switch on/off.

        • Clothing/Garments - DO NOT remove (unless for medical reasons and by medical trained staff).


        —     In the UK.
        • Civil Police/Service Police/MDP.

        • Chain of Command.—    Overseas.

        • Service Police.

        • Chain of Command.

        March 2006

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