Examination of Witnesses (Questions 60
THURSDAY 18 JANUARY 2001
60. I understand you have some control coming
on, but when he is coming off you have not got any control, have
(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.
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.
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
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 evidenceand incidentally I hope very much that at
that session the Assistant Under Secretary of State for Security
would be present to assistbut 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
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.
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 reasonand 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.
68. Can I ask if the other officers agree with
(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.
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 firewell, you would not be
stopping and searching thenbut is this universal?
(Mr Miller) This would be universal.
Mr Randall: That would be seen to be
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.
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
(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.
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
(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?
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
(Commodore Bryant) My judicial officer colleagues
have assured me they have been extremely successful, yes.
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 therethank goodnesswhere
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.
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