Select Committee on Armed Forces Minutes of Evidence

Examination of Witnesses (Questions 60 - 79)



  60. I understand you have some control coming on, but when he is coming off you have not got any control, have you?
  (Mr Miller) If we wanted to search a contractor's vehicle as he was leaving, then we would engage the civil police.
  (Brigadier Nugent) If I may put a practical spin on this, if you want to search a vehicle coming out it is probably because you have information it may be something you need to search, therefore there is normally always the time to get the civil police there. The liaison is good and they will be there very rapidly, or the MDP.


  61. Can I pick up on how you deal with contractors' vehicles in somewhere like Kosovo, both coming in and leaving? How do you deal with searching those vehicles or indeed the people involved, because there has certainly been concern about, frankly, unreliable contractors either taking in or trying to bring out material and other goods which would certainly not be to the benefit of the operation of our Armed Forces?
  (Mr Miller) I would need to give you a note on the subject of Kosovo.[3] Kosovo in this particular respect is complicated, as I was reminded. The reason that contractors are not covered is because of the terms of the underlying agreement with the United Nations. That is how this particular situation arises. I do not myself know how the command deals with the practical consequences in this way and I will need to give you a note on that.

  Chairman: I think that would be very useful. The Committee is hoping to visit our forces in Kosovo and is keen to further explore some of the areas of this Bill.

Mr Randall

  62. Presumably this applies to all the various contingents of the various countries? Or would you say a particular country has more jurisdiction in their legislation than us?
  (Mr Miller) I am aware that there is a particular problem with Kosovo. The extent to which that applies in other countries, I do not know, but it was drawn to my attention as something which was unusual.

  63. So it is not uniform under the UN umbrella?
  (Mr Miller) No. A lot depends on the terms which are negotiated either with the UN or with the country which one is going into.

Mr Key

  64. This may not be the appropriate moment because I know the Committee is going to invite the Chief Constable of the Ministry of Defence Police and others at a later stage to give evidence—and incidentally I hope very much that at that session the Assistant Under Secretary of State for Security would be present to assist—but nevertheless I think it is very important and of great relevance to Clause 2 here. How has the Ministry of Defence's Area Policing arrangement worked out because this really has changed the face of policing in some areas of the country around Aldershot, certainly around Salisbury Plain. If this is not the moment and we do not have the right people present, I wholly understand.
  (Mr Miller) I certainly cannot answer that, I am afraid. It is something you might like to leave until you see the Chief Constable.

  Mr Key: Then it is useful to have given notice and also therefore to give notice of one aspect I would like to pursue which is what happens to policing arrangements by the Ministry of Defence Police and other military police services to agencies of the Ministry of Defence, such as DERA, on privatisation. At Retained DERA, for example, at Porton Down, Porton Down is instructed by the Assistant Under Secretary of State for Security how many MDP officers there will be at Porton Down. Next door at Boscombe Down it is different, and that will be New DERA, it will be privatised, will the Ministry of Defence Police still be at the gate and be responsible for security? I do not expect answers to that now but it is going to be very important.


  65. We have certainly made a note of that, Mr Key. Could I suggest we move on to Clause 3. Any introductory remarks you wish to make, Mr Miller?
  (Mr Miller) Clause 3, Madam Chairman, is essentially setting out safeguards against the misuse of powers granted in Clause 2. It also allows regulations to be made detailing extra safeguards beyond those in the clause as it stands, and the intention is that the safeguards will be based on provisions in the Police and Criminal Evidence Act of 1984, the same provisions which apply to civilian police. Examples of the safeguards in the clause are a requirement that a person or vehicle may only be detained for the period reasonably needed to make the search, and a stipulation that persons cannot be required to remove anything other than an outer coat, jacket or gloves, if they are searched in public. The clause also clarifies two points, the first being that the power to search a vehicle also applies to the search of vessels, aircraft and hovercraft, and the second making it clear that the rules on search under Clause 2 do not apply to premises used for custody, detention and imprisonment.

  66. Thank you. Any points? Can we then move on to Clause 4, the power of a commanding officer in relation to stop and search?
  (Mr Miller) This essentially, Madam Chairman, is because of the geographical spread of the Armed Forces and there are inevitably going to be situations in which Service police are not always available. There may therefore be circumstances where stop and search powers need to be exercised without a policeman being able to do it, and the clause gives limited powers to commanding officers when a policeman is not available. Because we take the view that the power to stop and search is one which will normally be exercised by police, the power given to the commanding officer is more limited than that given to a policeman. He may only use his power in relation to someone who falls within his command and even then only when he reasonably believes that a criminal offence is likely to be committed or an offender is likely to escape arrest before a policeman can get there. Those are the essential constraints.

Ms Taylor

  67. I have some concerns here. My prime concern, Mr Miller, is to hear from you that the commanding officer will actually retain sufficient power that in fact his authority will not be undermined by this clause. I want to hear your thoughts with regard to that because I do not think his position or her position should be weakened in any way and I do not want to hear that this clause will present serious handicaps.
  (Mr Miller) Perhaps that is a question which my Service colleagues would be better placed to answer.
  (Commodore Bryant) I do not think it will. In any establishment the police force will work intimately with the commanding officer on general security and normally the police would be available. I think this retains adequate fall-back powers in some situation where they are not for some reason—and I take a ship as an example where perhaps the Service policeman is ashore for good reason and the commanding officer might have to do that. I would have thought the commanding officers as a whole would welcome this legislation as clarifying their powers and I do not believe it will restrict their right to secure their own establishment.

Mr Davies

  68. Can I ask if the other officers agree with that?
  (Air Commodore Charles) I endorse everything Commodore Bryant has said. That is certainly our view.
  (Brigadier Nugent) Certainly the Army welcome it. It gives the commanding officer the additional benefit of a legal framework under which he works and we do not believe generally there would be any usurping of their powers.

Mr Randall

  69. Does this apply equally on operations and here? Presumably in action a different set of rules apply. Would this apply if you are under fire—well, you would not be stopping and searching then—but is this universal?
  (Mr Miller) This would be universal.

  Mr Randall: That would be seen to be a problem.


  70. Can we now move on to Clause 5, Mr Miller?
  (Mr Miller) One change which is being proposed in the current system of investigation of offences is the requirement for warrants to be granted before there is any search of living accommodation occupied by people subject to the Service discipline Acts. This is essentially applying a regime which will eventually apply in relation to places in which individuals subject to Service law might have some reasonable expectation of privacy. It will bring the Services broadly into line with the civilian system. The clause gives judicial officers power to grant warrants if conditions set out in the clause are met. For example, there must be reasonable grounds for believing that a serious offence has been committed. Serious offences, generally speaking, correspond with those offences for which Home Department police forces can obtain warrants. The conditions for obtaining warrants are very closely based on those in the Police and Criminal Evidence Act 1984. The clause will also enable us to make orders equivalent to those sections of the Police and Criminal Evidence Act which will introduce safeguards relating to the issue and execution of warrants, again providing necessary protection. An example would be that searches under warrant must usually be made at a reasonable hour and the policemen attending the search must identify themselves to the occupier.

Mr Crausby

  71. Do you envisage any circumstances at all where the warrant would be required for single living accommodation? It must be difficult to define private space in communal areas? It is pretty clear that a locker or a cupboard is just as important if that is the only form you have as a home, would that require a warrant?
  (Mr Miller) Yes.

  72. It is not clear.
  (Mr Miller) It is our intention that a warrant would be required for a search of a locker in single living accommodation.

  73. That must overlap in communal living accommodation, in the sense that the private space is not easily defined and some sort of semi-private space is considered. How do you deal with the question of what is vaguely private space and, in effect, other people's joint private space?
  (Mr Miller) We think in many cases it would be fairly clear what is the private space, an individual's bed space, his locker and the furniture in that area. It would, of course, be a matter for the warrant to define in detail exactly where the search was permitted.

Ms Taylor

  74. This is a concern because private space, especially if you are in a confined place, is so important to you, and to actually search an area and somehow or other the three other people in the room are not being searched whilst one person is, there is actually an invasion of privacy. We would want to be settled in our minds that every control possible was going to prevent that from occurring.
  (Mr Miller) This is precisely why we established this in this way and put the protections in there. This will apply to the search of individual bed spaces or lockers and similar furniture.
  (Mr Morrison) The definition of Service Living Accommodation in Clause 15 is intended to be a wide definition in the sense of covering the whole of shared areas. For example, in 15(1)(b), "Any area which is occupied for the purposes of any of Her Majesty's Forces and used for the provision of sleeping accommodation for one or more persons subject to Service law". We have not recognised the problems of trying to sub-divide rooms. We have tried, if you like, to err towards giving the added degree of protection where you have a shared space. That is all within the area of Service Living Accommodation for which a warrant will normally be required.

  Ms Taylor: Can we widen this again?

Mr Keetch

  75. We heard a great deal about access to judicial officers in last year's Bill and the establishment of video links and live television links. This Bill also makes that provision. What has been the experience of the operation of this so far? Have they been used? Have they been successful?
  (Mr Miller) Perhaps I might ask Commodore Bryant to speak to that, I think the Navy has more direct experience with all that.
  (Commodore Bryant) My judicial officer colleagues have assured me they have been extremely successful, yes.

Mr Key

  76. I would like to look at this from the point of view of the private soldier or their equivalent in the Armed Services. What this represents is a huge change of Service culture, it may be in a barrack shared by five or ten people, or in the sort of accommodation you find in Cyprus with the resident garrison in the very modern accommodation there—thank goodness—where there are no doors on the private rooms, and so on. It is hard to believe that an application is going to be made by a Service policeman in Clause 5 to a judicial officer, who is then going to come back with permission. For hundreds of years the sergeant would have marched in and ordered the private soldier to open his locker. Is that really all dead and gone and buried? Do we now have this completely new culture? If we do the implications for the next generation of Service housing, for example, Service accommodation for single private soldiers is really profound. For example, is this sort of consideration being built in to the development and working up of Project Allenby, which is the biggest single Ministry of Defence housing project on the books at the moment. There really is a huge change of culture. Will this really address that? Will it happen? Can you assure us of that?
  (Mr Miller) The intention is that when we are talking about a search because there is a suspicion that an offence has occurred then a warrant will be necessary. There is a distinction between that and, for example, the routine commanding officer's inspection, where everything visible has to be shipshape, to use a term. That obviously would continue. Nevertheless where there is a question of a search in the context of an investigation it would be necessary to obtain a warrant. Yes, we will clearly need to think about the implications of this for the future accommodation provision. In general, of course, our approach to the provision of single living accommodation is moving towards the idea of individual rooms with en-suite facilities.

Mr Randall

  77. Is there still in the Service the idea of a spot inspection, a sudden inspection?
  (Mr Miller) I think my Service colleagues are the best ones to answer that.
  (Brigadier Nugent) There are still inspections, whether or not you would call them spot inspections I do not know. It is not like the old days when servicemen had less to do than they have today. There are still inspections, primarily for health and safety reasons.

  78. Of a soft nature. You would not be beware that that was going to happen.
  (Brigadier Nugent) They still happen.

  79. If somebody wanted to get around it they could say, "As long as you search every locker", then you can get around that. Is that possible?
  (Brigadier Nugent) These spot inspections are for health and safety and tidiness.

3   See Appendix 6. Back

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