Select Committee on Armed Forces Appendices to the Minutes of Evidence


Memorandum submitted by Mr Nigel Wylde


  I first came into contact with the Ministry of Defence Police in 1974 when they were assigned to give me and my family protection from a possible attack by the IRA following the broadcasting of a television programme about my work as a Bomb Disposal Officer in Northern Ireland. The officers concerned were very helpful and supportive and I have been grateful to them ever since for the reassurance they gave to both my family and my neighbours who were also affected by the threat to my person. In undertaking this task they showed an understanding for the circumstances of policing the Military Estate and Married Quarters that I do not believe could be shown by a Home Office Force.

  Over the ensuing 25 years I had irregular contact with the MoD Police until they entered my house on 3 December 1998 and unlawfully arrested me for allegedly breaking Section 2 of the Official Secrets Act. It was not for another 21 months that we started to receive the classified papers in the case, at which stage we knew what they were alleging. The case was clearly constructed by people who did not understand the subject and facts involved. The Prosecution Barristers were uneasy about what was happening and asked me if I would be prepared to give them any evidence I had that would enable them to approach the Attorney General to withdraw his fiat authorising the prosecution. I sanctioned my legal team to give them about 25 per cent of what we had then assembled. Three days later the CPS offered no evidence and I was found Not Guilty.

  I do not wish to cover the detail of the case except to make corrections to the exceptionally misleading and factually incorrect evidence given to the Committee by Deputy Chief Constable Comben MDP and Mrs Gloria Craig DG (S&S) in the MoD. My case does however raise serious concerns about the proposals to increase the powers of the MDP as set out in the Armed Forces Bill and it is those powers that I wish to cover first.


  Prior to the 1987 MDP Act careful consideration was given to the need for an MDP. As an observer of their work over the last 25 years I am convinced of the need for such a force. However, I support the restrictions recommended in the Broadbent report on limiting their jurisdiction and investigatory powers. In summary in 1987 their powers were limited to:

    —  MoD Property.

    —  People—two categories:

      —  Ministry of Defence Employees;

      —  Defence contractors employed on current contracts.

  The responsibilities set out in 1987 have not changed and no evidence has been produced by the MoD to support any change in their role. Yet the powers they are seeking will make them a National Police Force under the control of a Police Committee that reports to the Secretary of State for Defence. This is the first step to military control of civilians and not the prerequisite of a democratic society that the military are always subservient to civilian authority. The Committee has to decide if this is an acceptable situation in a modern free and democratic England. I do not believe that any justification exists for changing the powers set out in the 1987 Act.


  The MoD claims that the restriction on MDP jurisdiction in the MDP Act 1987 is the reason why they are asking for the extra powers to cover their officers when outside the MoD estate. There have been a number of occasions when MDP officers have been placed in difficult situations with only the powers of a civilian. These events have all occurred outside the MoD Estate. To avoid officers being placed in difficult situations the MDP say their officers require the powers of a constable to be extended beyond their estate and beyond the vicinity of their estate to cover the whole of the United Kingdom. There have been no complaints made to the Police Complaints Authority about the MDP failing to act outside their jurisdiction yet they claim that this is a major reason for justifying the changes to the MDP Act of 1987. I believe that the cause of this problem is not the MDP Act but the methods of policing introduced in the last four years by the last Chief Constable and by Mr Comben the current Deputy Chief Constable. I have outlined what I consider to be the main causes of the change in the following paragraphs.

Vehicle Livery

  It is only in the last few years that the MDP has been using white cars marked in a Police livery. Until about 1997 they used to drive black cars with limited markings identifying them as MDP. There is no apparent reason why they needed to change their vehicle livery, as the old vehicles were clearly identifiable as MDP on the MoD estate. However, by changing their livery they are now identified outside the estate as Police Officers. I believe this is sole cause for the MDP being asked for help by members of the public when outside the MoD estate.

Investigation of Civilians

  The 1987 Act clearly prohibits the MDP from arresting civilians unless they are employed as a Defence Contractor working on a MoD Contract. The Attorney General has rebuked the MDP for the way they acted in my case. It is clear that they arrested my former co-accused Tony Geraghty and myself unlawfully. We were both civilians and neither of us were working for the MoD in any contractual arrangement at the time of our arrest. We were not alone in this respect. Two days before our arrest some Gulf War veterans were also arrested for allegedly stealing an MoD document. They too were civilians. In both cases it was alleged that we had documents belonging to the MoD. The drafters of the 1987 Act recognised this dilemma and gave the MDP the power to search premises if they had grounds to believe there was MoD property on those premises. Property means something that physically belongs to the MoD and not to Intellectual Property, which is a civil matter. To clarify this point, if the person has an MoD document that is MoD property. If they only have notes that is not MoD Property. The MDP 1987 Act clearly distinguished between property and persons. If the MDP wanted to investigate matters involving MoD property and civilians then they had to involve the Home Force. I believe the MoD wish to be the sole investigatory authority in cases involving the Official Secrets Act. I have no doubt that the reason my case took so long was that they wished to discourage whistleblowers from exposing malpractice and unlawful activities within the MoD. In particular I believe they wanted to reduce the number of books by former SAS soldiers and to prevent further revelations about the Force Research Unit in Northern Ireland. It was for this reason that I believe Mr Comben accepted instructions from AUS (S&S) Mr Arthur Rucker to investigate my case and that of the Gulf War veterans. I have attached to this submission press reports of the action taken by the MDP against civilians in the form of Gulf War veterans and Green Peace for the information of Committee Members. The proposed changes to the MDP Act will permit such investigations in the future. In my case at one stage in the investigation Mr Rucker and his staff were involved as follows:

    —  the complainant;

    —  the people who removed my vetting;

    —  the assessors of damage;

    —   the Clerk of the MDP Committee;

    —  the Secretary of the MDP Committee.

  People I have explained this situation to have been very concerned that this totalitarian situation exists in the United Kingdom in 2001.

Investigating Serious Crime

  The proposed legislation would legally end control over the MoD Police outside the MoD Estate and give them free rein to investigate anywhere in the country without restriction. It would also permit them to arrest civilians who owe no duty to the MoD. Unless these powers are limited by law they could be stretched in the future to cover any activity. This is surely not what is intended but it could be the result of the current legislation. The statement of Mr Michael Legge DUS(CM) that the limit of these powers can be incorporated into a new Concordat or Protocol does not stand up to scrutiny. What he is saying is trust us and our many successors and we will not breach the spirit of the law. The record of the MoD in this respect is not good. They have exceeded the assurances given to the Commons in 1987 by Sir Archie Hamilton when he said:

    "The Home Department police have prime responsibility for the enforcement of the law, and nothing in the Bill changes that . . . There is an absolute requirement for the MDP to pass serious crimes such as murder and rape to the Home Department forces. The Bill does not change the role of MoD police. It merely brings activities in which they have been involved under the same legislation. The MoD police are entitled to investigate crimes on MoD property. When it comes to minor crimes there is often an agreement within the Home Department forces that it might be better if the MDP investigated."


    Clause 2 also empowers the MDP to act in relation to Ministry of Defence or contractors' property or personnel where an investigation may need to be followed up outside the bounds of an MoD establishment . . . That could extend to a fraud involved in the purchase of clothing or something of a relatively unspectacular form.

  The MDP has in recent years completely ignored these assurances. They have been investigating cases involving the Official Secrets Act. An offence under this law is regarded so seriously that the Attorney General, uniquely in British Law, has to approve the prosecution. They are now investigating 30 rapes per year despite the assurance that all rape cases would be handed over to the Home Office police. Whatever the rights and wrongs of these cases the key factor is that unless ministerial assurances are enshrined in law they will be ignored at some point in the future.

Inability to be Deployed in a National Emergency

  The issue of insufficient powers first surfaced in 1997 at about the time of the full introduction of the new livery police cars, when the Chief Constable wrote in his Agency Corporate Plan 1997-2002:

    The basis of MDP jurisdiction, as set out in the MDP Act 1987, is sound but it does need some clarification and some revision for it to remain effective. The progress of the Force is being hindered, individual officers are apprehensive about what they can and should do in situations beyond the boundaries of Establishments as the likelihood of legal challenge, judicial review or civil action is increasing.

  The Police Committee approved this report. It is not clear what was meant by the phrase "progress of the Force is being hindered" but it does not seem to have concerned the Police Committee, which is headed by the second PUS in the MoD, as they took no action to rectify the situation in the next four years. The event that caused the MoD to react rapidly and draft the proposed increase in powers set out in the Armed Forces Bill was a request made to the MDP Chief Constable for MDP Officers to help police the fuel protests. The Chief Constable reported on this matter to the Defence Police Federation as follows:

    We have established the Protocols with police forces of the respective UK countries which we police but we still have anomalies in respect of our jurisdiction which is presently legislated for in the MDP Act of 1987. A more recent and poignant example was that of a request from second PUS for us to supply police officers on a mutual aid basis during the fuel crisis. I wrote back to the second PUS and told him that he could have as many officers as reasonably practicable but he wouldn't be able to use them for the specific role that the Home Office had intended (that of aiding fuel convoys or policing picketed oil refineries). Having explained our dilemma in great legislative detail it wasn't long before the second PUS was on the case.

    It has always been a point of great concern that fundamental issues such as where and when we can exercise the power of Constable have taken such a long time to be formally recognised. At last we have the final pieces of the jigsaw in place and ironically, it is the Armed Forces Bill 2001 which is the vehicle we are using to make these final changes. This will give us the recognised powers required in order to carry out our duty, irrespective of location, in times of emergency or where there are life threatening incidents encountered outwith our recognised boundaries. At long last, the long suffering, tax paying public can look forward to receiving much better value for money from at least one additional group.

  It is difficult not to conclude that the main reason the MoD are seeking additional powers for the MDP is to create a Police Force that can be used for any purpose in a national emergency. This is not what the MoD and the MDP have said in their evidence to the committee. In the paper The Future Strategic Context for Defence published on 7 February 2001 the Defence Secretary states under the heading Political Dimension: Key Implications for Defence:

    Crime, terrorism and political extremism may increasingly require a military element to the Government response.

  The military have been involved in the areas of crime and terrorism for many years as witnessed by the surveillance of drug smuggling shipments by NIMROD aircraft and the army in Northern Ireland. What is new is the wording "political extremism". Again it is hard not to believe that the MoD are asking for additional powers for the MDP in relation to this perceived new role. If I am wrong and this is not their purpose, then I see no reason why the MoD should not support an amendment to the current Bill. In this way suitable wording in the Bill would strictly limit their powers by statute and not leave the detail to be negotiated in a new Concordat or Protocol after the Bill has been passed into law.


  Mr Paul Scott Lee the Chief Constable of Suffolk has told the Committee that it would be useful if MDP Officers could help in emergencies such as the recent flooding. He also said that he was content with the present arrangements that worked well within his County. He added that the general public would welcome increased powers for the MDP provided that they knew and understood that the MDP would be fully under the control of the local force on such occasions. He emphasised that his Police Authority and his Force might be financially liable for any incorrect action taken by the MDP when operating in his area outside the MoD estate.

  Mr Colin McKerracher Assistant Chief Constable of Strathclyde Police gave very similar evidence to the committee and acknowledged that current arrangements worked well but that he wanted to be in sole charge of events in his area. He welcomed the presence of MDP Officers in marked Police Cars travelling between bases as it gave an impression of more policing in his area. He expressed reservations about allowing the MDP to investigate crime in his area, as they would not have access to the information and intelligence available to the local force.

  Both the Home office forces and the MDP agree that the position of individual officers needs clarifying if they are called on to assist the County Force. The Home Police, both in England and Wales and Scotland, say that they will remain in charge of any situation their area and will delegate authority to MDP as see fit.

  In summary the only change that is required is to clarify the position of individual officers.


  From reviewing the evidence given to the committee and from my own experience I have reached the following conclusions.

    —  There is a requirement for an MDP Force to guard MoD property and to investigate minor crime on the MoD Estate.

    —  The current proposals to amend the MDP Act would have the effect of creating a national police force controlled by the Ministry of Defence.

    —  The assurances given by a Defence Minister (Sir Archie Hamilton) to the Commons in 1987 have been ignored.

    —  The existing MDP powers for jurisdiction are sufficient for policing their own estate.

    —  The investigatory powers of the MDP should be limited by statute and not left to negotiation between the Home Office and the Ministry of Defence.

    —  Control of the MDP should be removed from DG(S&S) so as to avoid a conflict of interests.

    —  The MDP Police Committee should be appointed by Parliament and should have only limited Ministry of Defence representation.


  Although I have shed doubt on the motives of the MoD and the senior officers of the MDP for requesting these changes, I think they should be given the opportunity to accept a solution that meets their concerns in relation to their own officers powers. It would also remove the spectre of the creation of a National Police Force under military control. I believe that by making the MDP officers in an area Special Constables of that area they will have the protection they need.

  There is one practical problem with this suggestion, that is not insurmountable, and that is the fact that APTs operate in several police areas. There is nothing to stop officers serving in the APTs being attested in all areas in which they operate.


  In relation to the evidence given to the committee by Mr Comben, I am in control of certain documents to support what I have to say about his evidence. I cannot release them to the Committee without the permission of the Court. If the Committee wishes to see them I will request permission from Mr Justice Moses who is the High Court judge responsible for my case.

  In his evidence to the Committee on 25 January Mr Comben made a number of statements about consultation that were not followed in my case:

    (Mr Comben) I think that circular was in the light of modern policing developments ever since Lord Scarman's report. It has always been good practice to consult when you are going into somebody else's police area.

    (Mr Randall) You would not be able to categorically say, whereas now it would be, not exactly mandatory, legal.

    (Mr Comben) Good practice.

    (Mr Randall) Before it might have been good practice but it would not necessarily have happened every time?

    (Mr Comben) I cannot speak for the MoD, I have been there six years, I cannot speak before then. Certainly in the whole of my six years it has been mandatory good practice.

  On 3 December 1998 the Ministry of Defence Police led by Detective Chief Inspector Webb searched my house in the Metropolitan Police Area. There is no record of any of the Mandatory Consultation with the Met Police that Mr Comben claims always takes place. In early March 1999 a Constable of the MDP went to the German School London and asked questions of her superiors about my wife's movements. In short she was being treated as a suspect. No consultation with the Met Police took place before that visit. Mr Comben is aware of the facts in both instances. In my case the Police Log shows he was fully involved in all aspects prior to my arrest and had attended a case Conference on 1 December after which the plans for the search were set in motion. My wife has complained to the Police Complaints Authority about the action at her place of work. As part of the complaint she has pointed out that no consultation took place. Mr Comben is also fully aware of all the facts in her case as he is responsible for the discipline of the force.

  My case is not one that Mr Comben could have forgotten because I understand that the MDP received a very critical letter from the Attorney General about their investigation and also of being misled by the Ministry of Defence. In addition my wife's complaint was only allowed to proceed once my case was over. In short the answer Mr Comben gave the Committee that "(to Consult) is mandatory good practice" is not true and was in my opinion designed to give the Committee a false impression of reality.

    (Mr Key) In the case of Mr Geraghty, which was another example here where there were two years taken to investigate that case by the Ministry of Defence Police, and again the case fell, a very great deal of damage was done to the gentleman in question. In that particular case of Mr Geraghty, was the Mercia Police Force actually consulted before Mr Geraghty's home was raided? You must have been very familiar with this case, after all it went to a very high level. Were all the conditions we have been describing this morning conformed with? Was there consultation, prior arrangement and the Chief Constable of Mercia said to the Ministry of Defence Police: "Please, you carry on and raid Mr Geraghty's home"?

    (Mr Comben) Certainly there was consultation about the search of Mr Geraghty's home. It was not a question of consulting with the Chief Constable about the initial stages of the investigation. I cannot say any more than that.

  As my co-accused Mr Geraghty was also arrested on 3 December 1998 and following a search of his house he was taken to Leominster Police Station for questioning. The Custody Sergeant was not expecting him as he was completely taken aback about how to enter an Official Secrets Act charge into his computer system. Again the Police log does not record any prior consultation about the search or arrest. On 8 December an entry in the log reports that Detective Chief Inspector Webb MDP spoke to an A/DI of the West Mercia Police about Mr Geraghty. This was after the search and not before it as should have been the "mandatory good practice".

  Again Mr Comben was fully aware of the operation having attended the conference on 1 December after which the operation was initiated.

    (Mr Key) In the case of Mr Geraghty there was no question of Mr Rooker (Rucker), who was the Assistant Secretary at the time, inviting you to investigate that case?

    (Mr Comben) I know about what you are discussing, of course. Mr Rooker (Rucker) was in the same situation as any other complainant, any other member of the public. We discover some crimes ourselves but most crimes are reported to the police. Most allegations of a crime are reported to the police by other people, and that is what happened in this case.

    (Mr Key) There was the question of an interim report on an investigation which it was certainly alleged was requested by Mr Rooker (Rucker) from the Ministry of Defence which would not have occurred in a Home Office force. We actually had the Ministry of Defence asking for an interim report on the investigation to see whether or not it should be pursued. Can you confirm that?

    (Mr Comben) I cannot confirm that an interim report was asked for or provided because I do not think it was. I can only now go back to the general. You have the operational independence of the Chief Constable on the one hand but it is entirely appropriate in my eyes for the Secretary of State, whether it be for Defence or the Home Department or anywhere else, to ask for a report at any time about a matter that is receiving national attention or is of national importance. That is a provision that the Home Secretary and the Secretary of State for Defence have but it was not asked for. I am talking about the general; I see no objection to it.

  Yet again Mr Comben has not given the Committee a full or accurate answer. On 27 October 1998 Detective Chief Inspector Webb of the MDP opened a crime log with the following words:

    Meeting with DCC MDP (Comben). DCI WEBB appointed investigating officer. Handed Confidential loose minute D/SEC(HSF)3/66/5/1 outlining Initial Complaint. Interim enquires to be made whilst awaiting correspondence from AUS(S&S).

    On 6 November the log continues: Meeting with DCC—Interim report submitted by DCI WEBB. Received from DCC Confidential loose Minute D/AUS(S&S)/70/5(659/98).

    As the committee heard on Tuesday 6 February the letter from Mr Rucker was clearly a directive to Mr Comben. Mrs Craig (DG(S&S) called the wording "infelicitous" and I recorded the Chief Constable as saying "It sounds like a directive, which would cause me potential concern. I am surprised by the language."

  I make the following points:

    —  Mr Comben knew that Mr Rucker would be writing to him and he ordered Mr Webb to undertake "interim enquires" only until the letter from Mr Rucker had arrived. A formal complaint had already been made, it was for the MDP to determine if they had the authority to investigate and if so whether an investigation was justified. This is like a crime being reported by Mrs X and the police saying we will not do much until we hear from Mr X. Mr Comben was quite clearly waiting for the Clerk of the MDP Committee to give him a formal direction as to the limit of the investigation. I understand that Mr Rucker did make an interim report to Ms Chivers in the Cabinet Office.

    —  There is an MDP office in the MoD Old War Office building about five minutes from Mr Rucker's office. Why did he not report the matter to his local MDP Officer instead of writing to the Deputy Chief Constable unless it was to give a clear directive to a senior officer of the force. This was not the action of a man reporting an incident to an independent Police Force.


  Mrs Craig addressed the Committee on 6 February. Before the questioning started she made a statement to the effect that her role as Clerk of the MDP Committee was purely administrative involving the arranging of four meetings per year and that in total she spent no more than 5 per cent of her time on MDP matters. I would make the following points:

    —  The role of a Director General as the name implies is to direct. As a Grade 3 Mrs Craig is a very senior Civil Servant. Senior Civil Servants delegate administrative tasks to juniors: in this case, to the Secretary of the Committee who is a Senior Executive Officer.

    —  Mrs Craig is the MoD Security Officer. In this role she is responsible for the MDP. The MoD telephone directory for 1998 contains the following entries for her staff in relation to the MDP [not printed]. I am told the entries are still valid.

  In responding to the Memo written by Mr Rucker that was read to the Committee by Mr Key on 6 February, Mrs Craig said that Mr Rucker had been "infelicitous" in the use of his language. She then continued by saying that he had been following the normal procedure as laid down by the Cabinet Office. This is wrong. The normal procedures were not followed in my case. An expert witness, Mr Duncan Campbell, commissioned by me wrote the following in his report that was accepted by the Attorney General as the reason for withdrawing his fiat in the case of my prosecution:


  Ministry of Defence instructions (JSP 404) on the loss or compromise of protectively marked materials specify the steps that should be taken when compromise is believed to have occurred. These steps include:

    —  An initial report . . . stating what counter compromise action will be taken.

    —  A progress report within seven days of the immediate report, giving an update on the progress of the investigation.

    —  "A final report [including] recommendations for action . . .

  According to Major Withey, "in the normal course of events" he would have been the officer responsible for conducting the "damage assessment and initial investigation" within HQNI. The initial investigation was taken over by the Ministry of Defence Security Department and the MDP. But no damage assessment was done, or asked for. He says:

        "At no time have I been asked to either obtain or produce any formal damage assessment in relation to the disclosures in the book `The Irish War'."

  Major Robbins has also stressed that, after writing his 21 October 1998 loose minute:

        "At no time was I tasked to conduct a further assessment."

  Major Powell was later asked to explain why no damage assessment had been carried out, as MoD procedures required. He explained that the assessment he prepared this was only done when the MDP specifically requested it for the purposes of the present case. He commented:

        "The delay . . . was caused by the sequential approach to the analysis and the differing procedures of the MoD in London and Headquarters Northern Ireland, which are both large organisations."

  In relation to the "Standard Procedures" Mr Campbell summed up as follows:

          I have already noted that in this investigation, standard MoD procedures were not followed. There were no progress reports or final reports, nor any considered recommendations for action or counter-compromise measures. No considered damage assessment was ever made, other than for the purposes of this prosecution. The assessment that was made was not made by the competent department of HQNI. The Army organisation responsible for assessing terrorist knowledge and the significance of compromises is the Counter Intelligence company of HQNI, commanded by Major Withey. He says he was never asked to investigate any aspect of the case. Such information about previous compromises as he had given to the MDP was not, apparently, passed on to the CPS or the Attorney General. Nor was it produced at all until the defence required it to be produced. I particularly note that Major Withey was not asked by the MDP to include information about the previous compromises of which he was well aware when he made his statement on 4 May 1999.

  In summary the evidence Mrs Craig gave to the Committee was both misleading and wrong.

February 2001

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