House of Commons - Armed Forces

Select Committee on Armed Forces Written Evidence

Further Memorandum from the Ministry of Defence

INVESTIGATIONS BY LOCAL CIVILIAN POLICE FORCES, THE MINISTRY OF DEFENCE POLICE AND SERVICE POLICE FORCES

1. Jurisdiction of service police forces

1.1 There are currently four service police forces: the Royal Military Police, the Royal Air Force Police, the Royal Navy Regulating Branch and the Royal Marines Police. The Royal Marines Police are however to be amalgamated with the Royal Navy Regulating Branch. It is also intended that, by the time the Bill comes in to force, the Royal Navy Regulating Branch will have been renamed "The Royal Navy Police". These forces are referred to below as the "Service Police".

1.2 Under the Bill the powers of the Service Police are, broadly speaking, exercisable only over persons who are capable of committing a service offence, in other words service personnel and civilians subject to service discipline. The Service Police powers in the Bill are very similar to those under the existing Service Discipline Acts (SDAs).

1.3 Within the United Kingdom civilians will not under the Bill be subject to service discipline (again this is essentially the same position as under the SDAs). Accordingly the Service Police will, as now, generally only have powers within the UK over service personnel.

1.4 Under the SDAs (section 70(4) of the Army Act 1955 and equivalent provisions for the other services) the Service Police do not deal with certain offences committed in the UK, as they cannot be tried by service courts. The main ones are murder, manslaughter, rape and treason. Under the Bill, these offences, like other service offences committed in the UK, will be capable of trial by the Court Martial. Accordingly, the Service Police will be able to deal with them, subject to the arrangements as to jurisdiction explained below.

1.5 Members of the Service Police are members of the armed forces. They are not constables, and so do not have powers as such. They have the powers (for example, of arrest, entry search and seizure) given to them by the SDAs (and in future by the Bill).

2. Jurisdiction of the Ministry of Defence Police (MDP)

2.1 The MDP are a civilian police force established by the Ministry of Defence Police Act 1987. It is part of the Ministry of Defence, but subject to specific statutory provision under the 1987 Act relating to its jurisdiction and organisation.

2.2 Under section 2(1) of the 1987 Act the members of the MDP have the powers of constables.

2.3 The MDP's jurisdiction is limited to the United Kingdom and is subject to a number of restrictions under section 2 of the 1987 Act. The restrictions are complex, but the broad effect is that its jurisdiction is limited to exercise:

The MDP may also, for example, assist other civilian police forces and may in an emergency exercise generally the powers of local civilian police (also under section 2 of the 1987 Act).

2.4 The main difference in jurisdiction between the MDP and the Service Police is that the MDP can only operate within the United Kingdom, but within the United Kingdom they have a general jurisdiction in relation to defence land, property and personnel. Their role is not therefore limited to service personnel.

3. Exercise of jurisdiction within the United Kingdom where there is overlapping jurisdiction between local civilian police forces and the Service Police

3.1 Lord Bingham in the House of Lords in the case of Boyd, Hastie and Spears etc (2003) stated that "no hard and fast rules have been laid down" to resolve the question of overlapping jurisdiction in the United Kingdom. "Instead, a pragmatic solution has been adopted, largely dependent on identification of the public interest which the soldier's allegedly criminal conduct has infringed. If it appears to be the general public interest which has been infringed (as where a civilian has been injured . . .) a civilian court is ordinarily regarded as the more appropriate forum, since the defendant's status as a soldier is essentially irrelevant to his criminal conduct. If, however, the public interest which the soldier's allegedly criminal conduct has infringed is primarily a service interest (as where another soldier has been injured . . .) the charge is ordinarily considered appropriate for trial by a military tribunal".

3.2 These arrangements are currently set out in a Home Office circular (number 35 of 1986). This is reflected in joint Queen's Regulations for the services. Where in the United Kingdom there is jurisdiction in both the civilian and service authorities it is for the local Chief Officer of police (now in effect the Crown Prosecution Service instead) to decide, in accordance with stated guiding principles, which jurisdiction should be exercised. The principles stated in the Home Office circular go into some detail, but the basic ones are that:(a) offences committed by service personnel which affect the person or property of civilians should normally be dealt with by a civil court; and(b) offences committed by service personnel which do not affect the person or property of civilians should be dealt with by a service tribunal.

3.3 In practice the principles are well-enough established for police forces to be able to take action in nearly all cases without the need to involve the local Chief Officer of police.

3.4 Under the Bill, where a CO has involved the Service Police in the investigation of an offence, the Service Police will still have the flexibility to leave the matter to the appropriate local force (or the MDP), or to investigate the matter themselves.

4. Conduct of investigations within the United Kingdom where overlapping jurisdiction between local police forces and the MDP

4.1 There are police protocols governing liaison between the MDP and local police forces as to the exercise of their respective jurisdictions. The main one is of 2002, but there is an important protocol of 2005 dealing with deaths on defence land. The emphasis in the 2002 protocol is on liaison, but there are some references related to deciding which force will act. The 2005 protocol provides, in the case of incidents involving sudden deaths on defence land, for the MDP to take any immediate action necessary while informing the local Chief Officer of police. The local Chief Officer then determines how the investigation should proceed. These protocols are different from the 1986 Home Office circular, because the choice between MDP and local police force investigation does not have the implications as to choice of court that are involved in a choice between investigation by the Service Police and investigation by civilian police forces.

4.2 It is recognised that in some places defence and private housing are increasingly integrated. At present it is considered that this can best be handled by close liaison between the forces and careful consideration of the arrangements between local police forces and the MDP, but also the Service Police. Discussions are in progress between all these forces to provide a tri-partite protocol to govern their interaction. This will be cleared with MOD legal staffs, ACPO and the Home Office.

5. Conduct of investigations in the United Kingdom between the Service Police and the MDP

These are the subject of Defence Council Instructions. They allow an alignment with the Home Office circular of 1986, so that cases with a civilian element are normally dealt with by a civilian force. As mentioned above the MDP and Service Police are involved in work to produce a tri-partite protocol.

6. Summary

6.1 The overall effect is that, where there is an overlapping jurisdiction within the United Kingdom between the local police, the MDP and the Service Police:(a) the Service Police normally take the lead where the context (suspect and victim) is entirely service. The matter will then usually proceed through the service system of justice;(b) where the suspect is in the services, but there is a civilian element in the case, the choice will normally be between local police and the MDP. The MDP will normally take the lead if the matter occurs within its jurisdiction (for example it occurs on defence land); and(c) the operation of these arrangements is well understood and works well. It is considered important for them to remain flexible and practical, allowing them to be based on the appropriate public interest but to take account also of availability of police personnel, the need for immediate action etc.

6.2 Discussions are being undertaken between the local police forces, the MDP, the Service Police and the MoD to consider the operation of the arrangements, to ensure that the conduct of investigations is undertaken efficiently and by the appropriate force and to provide a tri-partite protocol governing the interaction of the different forces.

March 2006