Letter to Mr David Burrowes MP from the
Minister
During the Select Committee sessions between
20 and 30 March 2006 you raised a number of questions on which
I agreed to give you a written response. I will answer your points
in order.
First, on clauses 75 and 78 you asked for confirmation
that the reference to a public place was sufficiently clear and
effective, specifically in the case of a road block "to search
for prohibited articles such as drugs or stolen articles".
The Service Police have no statutory powers
which would permit them to block a public highway or stop a mechanically
propelled vehicle on a public highway in order to conduct a search
for prohibited articles in that vehicle. The powers of the service
police to conduct a search of a vehicle are set out in clause
75 and are limited to conducting a search in a place permitted
by clause 78 of a vehicle where there are reasonable grounds for
suspecting that the search will reveal stolen or prohibited articles.
This includes, under 78(1) a), "in any
place to which (at the time of exercise of the power) the public
or any section of the public has access." This is the identical
provision as under section 1 of the Police and Criminal Evidence
Act 1984 (PACE).
Only the civilian police are allowed to conduct
road checks of all vehicles or vehicles selected by any criterion
in accordance with section 4 of PACE. This provision permits the
civilian police to conduct random road checks for the purpose
of checking whether a vehicle is carrying someone who has committed
an indictable offence, or is a witness to such an offence or someone
intending to commit such an offence, or an escaped prisoner. The
power to search the vehicle for stolen or prohibited articles
must still arise under section 1 of PACE. A police officer in
uniform also has the power to stop any vehicle under section 163
of the Road Traffic Act 1988 (RTA). This provides a person driving
a mechanically propelled vehicle on a road must stop the vehicle
on being required to do so by a constable in uniform or a traffic
officer. But a stop under the RTA does not entitle the officer
to search the vehicle. Again, any search of the vehicle must arise
under section 1 of PACE.
"Public place" as described in clause
78 and PACE would cover places such as parks, streets, roads and
car parks and, while open to the public, shops, pubs and sports
grounds. There are a number of criminal justice enactments in
which it is a requirement that a particular event must occur in
a "public place" as defined. (For example, the Criminal
Justice Act 1988 or the Prevention of Crime Act 1953.)
The principle that runs through the various
authorities is that land is, on the face of it, either public,
for example a street, or private by nature, for example a garden.[28]
Although certain places may carry a different status at different
times (for example a shop when closed would not be public), it
is not considered that a road block on a public road would so
alter its status.
As referred to above, PACE specifically permits
civilian police to carry out "road checks" and, if a
road block were to have the effect of converting that road's status
to private, then this would frustrate a decision to exercise the
power in section 1 PACE, so clearly that cannot be the case.
In the circumstances, we believe that clause
78 as drafted is fully effective.
Secondly, you asked, as did Vera Baird, about
Schedule 9 of the Bill, and in particular why the assessors do
not appear to be required to take into account military context
when assessing compensation for miscarriages of justice.
We do not consider that such a provision is
necessary. First, there are significant problems with attempting
to define "service experience" for the purposes of the
Bill. In fact, if such a qualification were to apply to the Director
of Service Prosecutions it will be through the vehicle of a job
description rather than a legal requirement.
Moreover, the requirement for an assessor is
likely to arise very infrequently: it has not done so since 1991. If
it were to arise, we believe that the criteria for appointment
should be no more or less restricted than those in the equivalent
civilian provisions (section 133 Criminal Justice Act 1988).
We do not consider that service experience is
likely to be of particular value in performing the duties of an
assessor under clause 275, given the factors which are to be taken
into account under clause 275(6) which relate primarily to the
offence and the record of the person concerned.
Thirdly, you with Robert Key, Simon Burns and
Bob Russell, also raised a concern that clause 320, the power
to make provision in consequence of criminal justice enactments,
was somewhat wide. You also asked how often the current equivalent
power has been used.
Clause 320, taken with clause 321, is in substance
the same provision as section 31 of the Armed Forces Act 2001. That
section was introduced in order to enable the Services to update
their own legislation to take into account certain criminal justice
enactments: that is, those enactments that deal with criminal
procedural matters. The power does not enable the Armed Forces
to make any substantive amendments to any Acts, it is simply a
way of applying provisions that operate in the civilian criminal
justice system to the Services.
For example, when new offences are created,
or existing offences amended, these apply automatically to members
of the Armed Forces as they are offences under the law of England
and Wales. Clause 320 would not allow the Secretary of State to
create offences.
If an enactment deals with non-procedural matters,
this clause could not be used to implement those provisions, if
the main Act did not itself implement the provision. For example,
the changes to double jeopardy rules to allow retrial after acquittal
for certain offences could not be introduced for any Service offences
without primary legislation.
There is a power under section 113 of the Police
and Criminal Evidence Act 1984 for the Secretary of State, by
order, to direct that certain aspects of that Act may apply to
the Armed Forces, subject to any modifications he specifies. Besides
that, prior to 2001, the only method to ensure that other procedural
enactments applied to the military criminal justice system was
either:
— for the criminal justice enactment
itself to make such provision or;
— for the Services to seek their
own legislation to include the provisions or;
— for the Services to wait for
the five-yearly renewal of their legislation to incorporate the
provisions then.
It is often the case that provisions in such
criminal justice enactments cannot apply automatically to the
Armed Forces as they need to be modified quite significantly in
order to fit into the Service regime. Where they can apply automatically
or where modifications are straightforward, then dealing with
this in the criminal justice enactment itself is the favoured
option.
This was the case with parts of the Criminal
Justice Act 2003, for example amendments to the bad character
provisions and other evidential provisions. These could be applied
automatically to courts-martial. However, this is not always possible,
and if it is not the Service justice system may not be up to date
with the civilian criminal justice system. Usually this cannot
be rectified until the Service Discipline Acts are amended every
five years. This does not always present a difficulty. Sometimes
the enactment may not need to be introduced in the Service system;
or it may be satisfactory to wait until the next legislative opportunity,
for example as with the provisions relating to adverse inference
and the right to silence in the Criminal Justice and Public Order
Act 1995.
If it is essential to introduce the provisions
then section 31 the Armed Forces Act 2001 and new clause 320 allow
the Secretary of State to implement new criminal procedural provisions
sooner and with necessary modifications to enable them to be of
practical use to the Services.
As at present, certain orders made under the
new provisions are required to be made by the affirmative resolution
procedure. These are orders that are made pursuant to clause 320(4)(c)
and add to, replace, or omit any part of the text of any Act (see
clause 363(3)(c)). As under section 31(6)(c) of the Armed Forces
Act 2001, such orders continue only to cover procedural matters.
When section 31 Armed Forces Act 2001 was enacted
it was not retrospective and could only apply to enactments passed
at the same time or after itself. Clause 320 applies to all enactments
since 2001 as it continues and replaces the power in the 2001
Act.
The power in section 31 of the Armed Forces
Act 2001 is about to be used in order to provide for the prosecution
right of appeal (Criminal Justice Act 2003) and this will be the
first occasion that it has been necessary to use it.
Fourthly, you asked with regard to clause 322
about the burden and standard of proof for excuses. In particular:
"Why is there a difference in the burden of proof required
from that in criminal proceedings, in which a defence is raised
on the grounds of a lawful or reasonable excuse and considered
on the balance of probabilities of whether it is more likely than
not that a defendant had such an excuse?"
Some criminal offences are defined in such a
way that a defendant is entitled to an acquittal if he had a lawful
or reasonable excuse for what he did. These offences fall into
two categories.
In the case of some offences the defendant is
not entitled to an acquittal on this ground unless he proves
that he had a lawful or reasonable excuse. An example is the offence
of possessing an offensive weapon in a public place without lawful
authority or reasonable excuse, contrary to section 1 of the Prevention
of Crime Act 1953. The Act makes it clear that it is for the
defendant to prove that he had lawful authority or reasonable
excuse. If the court thinks he probably did not, it may convict,
even if it is not satisfied beyond reasonable doubt that he had
no such excuse. In this kind of case the burden on the defendant
is called a legal burden.
More commonly, however, the accused is only
required to adduce sufficient evidence to raise the issue of whether
he had a lawful or reasonable excuse. If he does so, the prosecution
must prove that he did not have such an excuse. If the court is
not satisfied beyond reasonable doubt that he had no such excuse,
it must acquit. In this case the burden on the defendant is called
an evidential burden.
In the case of a particular offence it is sometimes
hard to establish whether Parliament intended the burden placed
on the defendant to be legal or evidential. Nowadays it is common
for the legislation creating the offence to avoid the difficulty
by making it clear which kind of burden is intended.
In the case of "service-only" offences
under the Bill which are committed only if there is no lawful
or reasonable excuse for what is done, we decided that the burden
imposed on the defendant should be evidential rather than legal.
This reflects the fact that criminal offences are increasingly
interpreted by the civilian courts as imposing only an evidential
burden. Far from creating a distinction between the approach adopted
by the civilian courts and that required under the Bill, the intention
is to ensure consistency between the two. That is what clause
322 (or clause 323, as it will be in the next print of the Bill)
is designed to achieve.
Similarly, in the case of a charge under clause
42 (criminal conduct) consistency with the civilian law requires
that any burden placed on the defendant should be a legal burden
if it would be a legal burden in the case of the corresponding
criminal offence, and an evidential burden if it would be an evidential
burden in the case of the corresponding criminal offence. This
is implicit in the drafting of clause 42.
However, we have realised that the position
on this point is obscured by clause 322, which on the face of
it extends to offences under clause 42 as well as "service
only" offences. Clause 322 might be understood as meaning
that there is never a legal burden on the defendant—even
if he is charged under clause 42 with an offence (such as possessing
an offensive weapon) which in the civilian system would impose
a legal burden. We propose to clarify the position by amending
clause 322 so as to make it clear that it does not apply to offences
under clause 42. This will leave the way clear for such offences
to be governed by whatever rules apply in the civilian system
to the corresponding criminal offence.
Finally, you raised an issue in relation to
clauses 335, 336 and new clause 12. For ease of reference,
the relevant extract from the debate is set out below.
"Mr. David Burrowes (Enfield, Southgate)
(Con): I wish to pre-empt consideration of the amendments in my
name and the names of my hon. Friends to clarify a number of points.
Our concern is on parliamentary scrutiny, which is the essence
of our amendments, particularly in the context of the written
evidence given by the Department to the Defence Committee last
year on regulations issued under the royal prerogative. In considering
when such regulations would need parliamentary scrutiny, the Department
wrote:
"As part of this work in some cases where
the RN, in particular, currently make regulations under the Royal
Prerogative, such as in relation to Boards of Inquiry, this power
will be replaced by statutory provisions made by subordinate legislation
as is already the case for the other two Services."
Why will such provisions be exempt from parliamentary
scrutiny? Will the Minister clarify whether it would be legal
under Government new clause for a future Secretary of State unilaterally
to impose a pay freeze or pay cut on the armed forces without
recourse to Parliament?"
I undertook to come back to you on the points
before the end of the sitting but in the event we were defeated
by time constraints. I am therefore setting out the position in
more detail in this letter.
Service personnel do not have contracts of employment
and therefore have no contractual entitlement to pay. Service
personnel are paid at the gift of Her Majesty the Queen. Indeed,
it is a well established principle that all matters relating to
the administration and disposition of the Armed Forces, including
pay, are left to the Prerogative. The Bill does not intend to
change this and altering the position so that Parliament has control
over the pay of the Armed Forces would be a fundamental constitutional
change.
Under successive Governments for many years
the pay of the Armed Forces has been determined by the Government
which responds to recommendations of the Armed Forces Pay Review
Body (AFPRB). The AFPRB's report is published as a command paper
and the Government's response published by means of a written
Ministerial Statement. The authorisation of rates of pay, allowances
and deductions is through prerogative instruments.
The Sovereign's powers in respect of pay are
currently set out in a variety of different legal instruments.
For example, rates and conditions of pay for members of the regular
army are set out in a Royal Warrant. But they are set out in Orders
in Council for the Royal Navy and in orders of Her Majesty, signified
under the hand of the Secretary of State, or by the Defence Council
for the RAF. Although Parliament cannot vote on these prerogative
instruments they are publicly available.
The purpose of the Government's amendments is
limited. It is to make the administration of these matters the
same for all three services namely by Royal Warrant. The driver
for this change is the implementation of the Joint Personnel Administration
through which administrative arrangements in all three services
are being simplified and harmonised. It will not however alter
Her Majesty or Parliament's relationship with the Armed Forces.
I trust that this explains the position on the
points you raised.
April 2006
28 HARRIOT v DPP (2005) [2005] EWHC 965 (Admin). Back
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