(2) INDEPENDENCE OF SERVICE POLICE INVESTIGATIONS
1.9 The Bill contains provisions which, according
to the human rights memorandum, are "intended to highlight
and buttress the structural independence of the service police
and to support best practice in the conduct of investigations."
1.10 These provisions include a new duty on the heads
(the Provost Marshals) of each of the service police forces to
seek to ensure that all investigations carried out by the force
are free from improper interference.[9]
Improper interference is defined to include, in particular, any
attempt by a person who is not a service policeman to direct an
investigation which is being carried out by the force.[10]
The duty is owed by the head of the service police force to the
Defence Council, the highest level of the MoD responsible for
command and administration of the armed forces.
1.11 The Bill also provides for Her Majesty's Inspectors
of Constabulary ("HMIC") to inspect and report to the
Secretary of State on the independence and effectiveness of investigations
carried out by each service police force, with such reports to
be laid before Parliament by the Secretary of State.[11]
Finally, it seeks to highlight and support the independence of
the heads of the service police forces from the chain of command
by providing for their appointment by the Queen.[12]
The Bill also provides a power for the Director of Service Prosecutions
(a civilian) to appoint civilian prosecutors.[13]
1.12 Each of these provisions has the potential to
enhance the independence from the chain of command of service
police investigations and subsequent charging decisions. This
has been a live issue in the context of the numerous allegations
that have been made about ill-treatment of detainees by British
troops in Iraq. Articles 2 and 3 ECHR both impose positive obligations
on the state to conduct effective, independent and reasonably
prompt investigations into allegations of the use of lethal force
(Article 2) or ill-treatment of detainees constituting inhuman
or degrading treatment (Article 3) by members of the armed forces.
This obligation to investigate extends to the investigation of
systemic issues where they are raised by the individual allegations.
More than 140 Iraqis have commenced civil proceedings for damages
or judicial review proceedings alleging that they have suffered
such ill-treatment.
1.13 At the time of our preliminary consideration
of the Bill, the Government relied on the recent decision of the
High Court in the Ali Zaki Mousa case to support its argument
that service police investigations under the provisions of the
2006 Act are sufficiently independent and effective to meet the
requirements of Article 3 ECHR.
1.14 Article 3 imposes a positive obligation on the
State to conduct effective, independent and reasonably prompt
investigations into allegations of ill-treatment of detainees
constituting inhuman or degrading treatment. The Government pointed
out that the High Court in the Ali Zaki Mousa case had
found that the Royal Military Police were sufficiently independent
for the purposes of Article 3 and that, although the Commanding
Officer retained the decision on whether to prosecute in a few
cases, the safeguards were such that in almost all relevant cases
the decision would in practice be referred to the Director of
Service Prosecutions. In the Government's view, the provisions
in the Bill designed to bolster the independence of service police
investigations were therefore not, strictly speaking, required
by the positive obligations in Articles 2 and 3 ECHR.
1.15 Since our preliminary consideration of the Bill,
permission to appeal to the Court of Appeal has been granted in
the Ali Zaki Mousa case.[14]
One of the issues which was judged to be of sufficient importance
to warrant consideration by the Court of Appeal was whether the
investigations by the Iraq Historic Allegations Team are sufficiently
independent, in view of the involvement of Royal Military Police
personnel who were embedded with the troops who are the subject
of the investigation.
1.16 We asked the Government to explain why it considers
that it is appropriate for the Commanding Officer (as opposed
to an independent prosecuting authority) to continue to have any
discretion in relation to charging decisions, and whether serving
armed forces personnel can investigate cases where systemic failings
are alleged, without endangering the perceived independence of
those inquiries. The Government's responses to these questions
rely on the findings of the High Court in the Ali Zaki Mousa
case, but it acknowledges that it is "very likely" that
the Court of Appeal in that case will consider the appropriateness
of these provisions in the Bill designed to increase the independence
of service investigations.
1.17 We have
considered whether the statutory scheme, as amended by the Bill,
provides sufficient guarantees of independence of the investigators
from the chain of command, but have concluded that it would be
premature to express a view on this question pending the decision
of the Court of Appeal in the Ali Zaka Mousa
case.
1.18 We also asked the Government whether Her Majesty's
Inspectorate of Constabulary should be specifically required to
report on the promptness of any investigation as well as its independence
and effectiveness. In its response, the Government says that the
reference to the "effectiveness" of investigations in
the Bill is intended to include promptness.
1.19 The promptness
of an investigation is an important aspect of its compliance with
the positive obligations under Articles 2 and 3 ECHR. We recommend
that, to give better effect to the Government's intention that
HMIC can be required to report on the promptness of service investigations,
it be spelled out on the face of the Bill by including an explicit
reference to "promptness" in new section 321A(4) of
the Armed Forces Act 2006 (inserted by clause 4 of the Bill).
The following amendment to the Bill is designed to give effect
to this recommendation:
Page 3, line 37, clause 4, before sub-clause (c)
insert:
'(ba) the promptness of such investigations;'
9 Clause 3, inserting new s. 115A into the Armed Forces
Act 2006. Back
10
New s. 115A(3) Armed Forces Act 2006. Back
11
Clause 4, inserting new s. 321A into the Armed Forces Act 2006. Back
12
Clause 5, inserting new s. 365A into the Armed Forces Act 2006. Back
13
Clause 21 Back
14
Order of Richards LJ, 10 February 2011. Back
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