Further Memorandum from the Ministry of
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
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
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:
(a) on defence-related land;(b) in any
other place where there is defence-related property; and(c) in
relation to defence personnel.
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
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
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
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
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.
6.1 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.