Examination of Witness (Questions 540
TUESDAY 30 JANUARY 2001
540. We have already come across this difference
between Scottish law and English law. Would you say there could
be a potential problem if MoD police officers are being moved
around the country, if they would have to be fully trained in
Scottish law regarding police powers?
(Mr McKerracher) That is the same for any officer.
With officers transferring from any of the 43 English forces to
Scotland they go through training.
541. Except this is one police force; this is
not transferring from one to another. They could be told to go
from A to B?
(Mr McKerracher) I am assured that the Ministry of
Defence Police are already aware of that, and currently they do
go through an awareness training session which brings them up-to-date
with the differences.
542. Do you think there would be any merit in
having a separate Scottish MoD Police Force?
(Mr McKerracher) I do not know.
543. Getting back to what Ms Taylor was sayingin
the letter from Sir Roy Cameron it said: "In conclusion the
Association remains of the view that it is extremely important
that any extension of jurisdiction and powers is properly managed
and controlled to prevent a situation where we have various forces
empowered . . . leading to considerable confusion, ambiguity and
different working practices which will undoubtedly impact on service
delivery to the public". Where would your Association like
to see this Bill making sure that this extension of jurisdiction
of power is properly managed and controlled? Obviously there is
a concern there that has to be looked at. I think we can all understand
that. Where precisely do you feel that the Bill, as currently
drafted, should be looked at to make sure that is okay?
(Mr McKerracher) I think the Association is saying
that the draft of the Bill we have seen makes us reasonably comfortable
with the Bill; and what we are saying is that the Bill will clarify
certain aspects for us. I have already said this and will rehearse
it one more time: it is what happens beyond the initial public
and police contact that we have to be clear and sure that the
rules are not confused and there is no ambiguity; because that
in itself will allow us both to offer the public the quality of
service that Sir Roy Cameron points to.
544. I do understand that and I am sorry to
go on but it is obviously very germane to this particular part
of our evidence. It is not what is in, it is what is not in; that
you think there could be some foul-up and to make sure that further
process you have just described should be further clarified or
not? Or do you think that should be down to individual forces
as a protocol?
(Mr McKerracher) I think we are saying that should
be down to individual forces as a protocol.
545. Have you read the testimony provided to
us last week by Mr Comben on behalf of the Ministry of Defence
(Mr McKerracher) I have read some of it. I only got
it last night and tried to read it last night and on the plane
546. I wonder whether, when you did look at
it, you noticed there was rather a stark contrast, not to say
discrepancy, between your view of the powers, and indeed potential
powers, of the Ministry of Defence Police and their own? Did you
(Mr McKerracher) In what regard?
547. In answer to one of my colleagues this
morning when asked what sort of offences the Ministry of Defence
Police investigate you said you did not think they would investigate
any offences. Mr Comben gave us evidence the other day and I refer
to Question 437 in which he says: ". . . provided domestic
burglary is clearly within the MoD estate we deal with those routinely
and in terms of sexual offences if they are limited to the MoD
estate and we have the technical ability to support such an investigation
then we will deal with those as well". In Question 435 he
said they deal regularly with burglary and with murder: "I
can imagine circumstances where it would be something that we
would normally want to deal with . . .". It is a very different
perception of the powers of the Ministry of Defence Police, or
what ought to be the powers of the Ministry Defence Police, and
your own perception, is it not?
(Mr McKerracher) I said I did not think they would
investigate any offence within our civilian policing area; and
I do not think they would. However, within the estate of the Ministry
of Defence then they will investigate, and I did say, a minor
crime like theft or burglary. When it comes to murder, any murder,
sudden or suspicious death the civil police I think you would
find would have the primacy there.
548. Mr Comben did say that the civilian Chief
Constable had the right to determine who would investigate that;
but he also said that it might well be he would prefer that the
Ministry of Defence Police investigate itsimilarly with
serious matters, and I have quoted burglary, sexual offences,
not minor crimes at all. Mr Comben has no doubt at all about the
ability of his men or women to deal with those offences in agreement
with the civilian Chief Constable, and the appropriateness in
some circumstances of taking those cases on. You obviously do
not share that view?
(Mr McKerracher) I think our practice in Scotland
is that they do not investigate those particular offences. It
is not because we would consider an incompetence on the part of
the Ministry of Defence. It is about efficiency and effectiveness;
and it is about the fact that these issues do not happen in isolation
very often. One house breaking, or burglary as you call it, may
be one of a spate of 20, so obviously if we are dealing with this
it is much more effective for us to run with the whole thing.
549. I am not challenging at all your rationale
for taking the view you do; I am just trying to establish that
there is a contrast or discrepancy between your perception and
that of the Ministry of Defence Police. I might add, although
I did not use the word `incompetent', you did use the word acting
`inappropriately' as being something you feared the Ministry of
Defence Police might do if they got involved in certain types
(Mr McKerracher) Inappropriately in relation to what
our own forces would do in a particular circumstance. We do not
deal with issues like drugs, domestic violence or a whole range
of issues in isolation; we look at them strategically and we have
in place policy and strategy that seeks to ensure the best quality
of service to the public. What I have said quite clearly is, should
the Bill be passed and should we then find that our colleagues
in the Ministry of Defence would have the ability to take their
jurisdiction beyond the boundary and into the civil police area,
then what we would do is certainly sit and talk about an awful
lot of issues; because there may be occasions when we would call
on them to use their expertise (which they have in particular
areas) to help us solve a problem. That would be a very positive
550. I have two more questions. My first question
arises from what you have just said to us in answer to my last
question. The importance of these protocols is going to be even
greater when the statute law, under which you and the Ministry
of Defence Police are operating which defines the MDP jurisdiction,
is changed to give the Ministry of Defence Police greater powers?
(Mr McKerracher) Absolutely. That would have to be
very clearly defined, and very clearly understood by both parties
and that would be right.
551. Finally, the basis on which those protocols
are going to be negotiated will be changed. The Ministry of Defence
Police will have greater bargaining power and arrive with greater
statutory jurisdiction and scope provided for them. They will
be more equal partners with you in negotiating that protocol.
Whereas at the moment the protocol very much depends on what you
are prepared to concede to them?
(Mr McKerracher) Yes, the negotiations would be far
more in-depth and far more wide-reaching. However, I do not necessarily
see the final outcome that the civil police would hand over huge
areas of their business in terms of the Ministry of Defence Police
role. I think we would work very closely together at times, but
not all the time; that would be an effective way to deal with
a particular instance.
552. You have made it very clear you hope the
new situation would not result in the Ministry of Defence Police
having much greater powers.
(Mr McKerracher) That is not what I have said.
553. We have been told that the Ministry of
Defence expects that there will be standing arrangements at a
high level between Home Office Forces and Scottish Office Forces
and the Ministry of Defence Police. Do you think that refers to
just the Protocol you have been describing, or is there going
to be some different kind of standing arrangement under which
Ministry of Defence Police will be expected to undertake routine
(Mr McKerracher) In relation to the Protocols, I do
not think that the Ministry of Defence Police will be expected
to take a greater role in policing matters.
554. Forgive my ignorance, but it is over 30
years since I lived in Scotland. Does the Police and Criminal
Evidence Act 1984 apply in Scotland in the same way as it does
(Mr McKerracher) No.
555. It has equivalent legislation, for example,
Schedule 1, which is important, about how police officers behave
and so on in relation to cases.
(Mr McKerracher) The Police Scotland Act 1967. We
have some aspects of that and the Criminal Procedures (Scotland)
Act as well.
556. This is very important because as part
of the extension of the jurisdiction, the Police and Criminal
Evidence Act 1984 (PACE) will be applied fair and square to the
Ministry of Defence. This has been a grey and difficult area,
so this is welcome tidying up. However, it effectively gives the
Ministry of Defence more regularised jurisdiction in England and
Wales, and therefore I assume that it will also apply in Scotland.
For example, they could undertake investigation into any crime
under certain circumstances. They are not actually debarred from
(Mr McKerracher) I have to be frank and say that PACE
is not an Act with which we are particularly familiar. So I do
not know how that would impact. It does not apply north of the
557. I am not a lawyer so I can share that perspective.
You have clearly described that you anticipate that the Ministry
of Defence police would not investigate serious crime. You cited
murder which is often used as an example to the Committee. However,
we always return to the problem of what is serious. It is not
petty burglary in married quarters estates. Would you expect the
Ministry of Defence police to investigate possible crime under
the Official Secrets Act?
(Mr McKerracher) Perhaps I can take that slightly
wider. Where the Ministry of Defence police have a locus and they
have an expertise and an involvement in any crime, we would expect
them, currently and in the future, to carry that investigation
as far as they can. In using their expertise in that situation,
it is not dissimilar from using the expertise of anybody in any
investigation. Ultimately, the person who draws that all together
and reports it to the Procurator Fiscal in Scotland invariably
is a police officer from one of the civil forces. It may be that
in investigating a burglary the Ministry of Defence police could
take that some way down the road to the report to the Procurator
Fiscal, but they may not take it the full way. That may happen
currently. I cannot give you examples or a specific answer to
that because I am not sure how that Protocol would work on a practical
level between the two sets of officers. However, in terms of the
Official Secrets Act, it may be that they have better expertise
and experience than we have in that situation and it would be
logical, efficient and effective for that to happen. I am not
sure whether that is the case at present.
558. In Scotland can a police officer who has
been sent to investigate a crime in someone's home that may be
connected to a firearms offence, for example, with a warrant to
search a house for a shot gun, and he then discovers another crime
in the course of the investigation, can he pursue the second crime?
(Mr McKerracher) Yes, he can. He would have to get
a further warrant and he may have to stop the investigation at
that point to seek another warrant, but he can carry on and preserve
the evidence until another warrant has been issued.
559. This is quite important. I shall pursue
it with ACPO England, if I may. I understand that there is an
extension to the Ministry of Defence police powers under the Police
and Criminal Evidence Act that will give them that additional
power to do exactly that. There have been some high profile cases
on it. I am grateful to you for clearing up that. Going back to
Faslane, I have been concerned to discover who has the power to
search contractors' vehicles that go in and out of Faslane, or
indeed anywhere else. As I understand it, Ministry of Defence
police operating in Kosovowe have a memorandum from the
Ministry of Defence saying this do not have the power to
search contractors' vehicles in Kosovo. Therefore, I wondered
whether they have such a power at Faslane, where there have been
some fairly notorious incidents in recent months.
(Mr McKerracher) They have control of the gates into
Faslane. That is not a civil police locus. I have not been the
commander at Faslane, but my understanding from the commander
is that it would be Ministry of Defence personnel who would deal
with anything that goes into the base and the line is drawn at
that gate in terms of who deals with what.