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.
DEFENCE INSTRUCTIONS AND NOTICES
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).
INITIAL ACTION TO BE TAKEN AT SCENE OF A SERIOUS
INCIDENT
PREVENT LOSS OF LIFE (INCLUDING YOUR OWN) OR INJURY
— 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.
ASSESS AND TEND THE INJURED
— 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.
PROTECT THE SCENE
— 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.
ARTICLES AT THE SCENE—LEAVE IN SITU
— 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).
REPORTING AND RECORDING
— In the UK.
- Civil Police/Service Police/MDP.
- Chain of Command.— Overseas.
March 2006
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