Examination of Witnesses (Questions 820
TUESDAY 13 FEBRUARY 2001
820. During those raids, was it made clear that
they were MDP officers engaged in that raid? Was there any suggestion
given during the detention of those civilians that they had rights
of appeal and where the accountability lines lay?
(Mr Geraghty) In fact, it was not just a one-off raid;
executives, including the Chief Legal Adviser, were "invited"
to a Home Department police force station by MDP officers and
interrogated under caution for up to four hours. On another occasion,
an MDP van, complete with dogs, was parked rather spectacularly
on a yellow line outside the main publishers' building, and instead
of walking, as other officers might do, and introduce themselvesthere
is a style of pressure which MDP seem to exercise rather more
readily than would perhaps the Metropolitan Police faced with
a similar task.
821. What I am trying to understand here is
why the MDP need to extend their existing powers. Let us be clear:
their existing powers allow themand on at least two occasions
have allowed themto make raids on homes and offices of
civilians with dogs in vans, with searches possibly being armed,
possibly not being armed. That is quite an existing degree of
availability allowed to the MDP to carry out these kind of raids.
(Mr Geraghty) That begs the question as to whether
those actions were in practice lawful. I do not want to go down
822. That does beg the question of whether they
were right or whether they were wrong, but certainly that is what
they are doing at the moment, let alone whatever extension they
may now be requesting.
(Mr Geraghty) These are the powers they seem to wish
to arrogate to themselves, yes.
(Mr Gopsill) Can I just add to that? That is correct,
and I think this is what Ms Linscott was referring to when she
talked about jurisdiction creep; that it is highly questionable
whether they have the authority to do that. There is one other
point I would like to add, and that is that these arrests we are
concerned with are possible prosecutions under the Official Secrets
Act. In all other cases with which we are familiarand as
journalists we have had quite a fewthe policing agency
that has arrested and dealt with people charged under the Official
Secrets Act has been the civilian police Special Branch. We have
had our problems with the Special Branch police, and their method
of operation has sometimes seemed questionable to us, but at least
they are part of a local police force. It is quite a mystery to
us, actually, why the Ministry of Defence Police were involved
in these cases, when we would have expected it to be the Special
Branch police and we would be interested in the explanation as
to why the local force Special Branch police could not be policing
official secrecy cases.
823. Chairman, we seem to be having a philosophical
discussion about this issue. First of all can you give me some
hard examples, because it seems to me that if the powers are agreed
in this Bill then the MoD Police will be able to arrest people
but they will still be subject to the normal court system. Are
you worried that they will be more zealous in the way they arrest
people? What is it exactly you are concerned with? They are, obviously,
whether it be the civilian police arresting or the MoD Police,
still subject to and accountable through the courts.
(Mr Gopsill) In our legal structure, of course, cases
ultimately come to court, although I think they are less responsive
to the courts than they would be if you had a continental system,
but that is a completely separate argument. The problem, as far
as we are concerned, is that dealing with police forcesand
we deal with police forces quite a lot, as I saidjournalists
quite often get arrested in the course of going about their business
because they are poking their noses in places, and we, the NUJ,
have a very successful record in securing their liberty to pursue
their work. It is one of the main functions of our organisation.
We do that by liaising with local police forces, both in terms
of people being arrested and, also, in terms of policing public
order events. If you want specific examples, there was a location
in Oxfordshire, a cat farm (this is not a military base but it
could easily have been, because it attracted demonstrations) and
quite a lot of photographers were arrestedquite heated
demonstrations. We saw there was a problem there and we went to
see the local Thames Valley Police, and we talked to them about
demonstrations. We gave them information about how to recognise
the official national press card that journalists are carrying,
we agreed to send observers to one of the most contentious demonstrations
that was happening and it passed off peacefully and the situation
was much improved. I do not think you could do that with the MoD
(Mr Gopsill) I just do not think they would be responsive
to outside opinion.
825. Can I push you on this? Can you give me
examples where you have attempted to actually build that dialogue
and it has been denied?
(Mr Gopsill) With the MoD?
826. Or where you have actually contacted the
military police when people have been arrested and been rejected?
(Mr Gopsill) No, because it has not happened, because
the powers are in the new Bill.
827. Am I right to believe that they can, for
example, on a military base, arrest, or in the vicinity?
(Mr Gopsill) Yes.
828. It is possible that in the sorts of areas
you have been pursuing that these areas are where they could have
been arrested and where you need dialogue?
(Mr Gopsill) I have to say I, myself, do not have
any experience of members arrested by MoD Police, except for those
people raided at home.
(Mr Geraghty) I would like to amplify your response
to that in this way: Mr Watts, reasonably enough, offers up a
sort of perfect paradigm of dialogue between a police force and
by the Crown Prosecution Service, of course, to the accused person,
and so on. In practice, as I think is common knowledge in relation
to, for example, anti-terrorist legislation, there has been a
growing tendency, partly as a result of Irish problems, to use
legislation (and I see the Official Secrets Act as being one of
those) as an instrument of investigation. In other words, there
is no legal or judicial end-product envisaged from the very beginning.
If you want a police force that is going to be compliant to the
military criteria, coming from a military community, then the
MDP is the likely instrument.
829. I do not want to put words in anybody's
mouth but you do not seem exactly enthusiastic about the present
use of the powers of the MoD Police as things stand. Do you see
any role for the MoD Police at all? Could we not have a situation
where the military police and the civilian forces colluded together
and dealt with everything?
(Mr Gopsill) As a first answer, I can see the logic
of it. Obviously, we are quite baffled by quite a lot of the Bill
and its relationships, not just between the various military police
forces, it also brings in the Transport Police and the Atomic
Energy Police. It is a bit of a patchwork. You could devise a
structure where the MoD Police did not need to exist because Armed
Forces personnel were policed entirely by the military police
and civilians by the civilians and overlapping areas covered by
Special Branch or co-operation between the military and the civilian
police. You could do that. I take it, though, that the option
that we have on offer is the Bill in front of us and that the
MoD Police does exist. Perhaps it is one of those things where
if it had not existed it would not have been necessary to invent
it, but we are assuming that it is. I do not know whether Gill,
who has studied the MoD Police more than me, can put up an argument
for its existence?
(Ms Linscott) Yes, thank you. Obviously I think it
is common ground that within bases and in relation to Service
property they have a role. When one is talking about an outside
role, yes, the question you ask is an interesting one, because
one might foresee a civil disaster in which not only using troops
but also using Ministry of Defence Police at the request of a
local police constable or a local authority could be very useful
indeed. Then, when you ask that question, I think you have to,
with respect, ask yourself: "Why Part IV?" Surely, it
would be possible to have a mechanism whereby the Home Secretary
and the Defence Secretary could come to an agreement without the
great extension of general Ministry of Defence Police powers contained
in Part IV. So the answer is yes, it is quite easy to envisage
a civil, non-criminal emergency in which they might be very useful
indeed, but it is very difficult to see why Part IV would be the
answer to that question.
(Mr Geraghty) There is an alternative to Part IV.
Incidentally, I certainly accept the historical authenticity and
role of MDP on military bases in relation to MoD property. Intellectual
property is a more ambiguous case. However
830. Briefly, please, Mr Geraghty. We have used
40 minutes of our 45 minute session on the MDP at the moment.
(Mr Geraghty) There is an answer to the problems you
have been discussing. This is to invest MDP officers with the
powers of Special Constables in certain areas and at short notice,
where these borderline matters arise.
831. You have a pretty strong point on accountability.
It all seems to be based on accountability. What is the real difference
between a Service person being arrested on a base and by a non-accountable
police force and a civilian being arrested outside by a non-accountable
police force? Surely the argument is not about the base but about
accountability? The Chief Constable of the MoD Police said that
he was accountable to the law. Is it sufficient to be accountable
to the law, or would you like to see that extended?
(Mr Geraghty) Accountable in the same way as the Police
Complaints procedure. It is difficult in relation to the Home
Department forces and the Ministry of Defence Police. For example,
the Police Committee, which is part of the MDP organisation, is
appointed, I think, entirely by the Secretary of State for Defence.
It is a totally different system. Members of the Armed Forces
are subject to military law as well as civil lawwitness
the Clegg case. So there are vast differences here and we should
not blur the jurisdiction and accountability of law enforcement
on civilians with those of the Armed Forces. That would be a disastrous
Chairman: Thank you very much. I have
allowed a great deal of time on the Ministry of Defence Police
because that was, clearly, an area of prime concern to yourselves
and one that this Committee has spent a lot of time on. Can I
now suggest that we allow, at least, some extension of the original
time planned for this evidence session so that we can certainly
raise with you some of our concerns and questions about Clause
6 of the Bill.
832. Very quickly, Clause 6 of the Bill would
give the MDP power to look at what they describe as "excluded
material", "special procedure material", and we
had explained that that includes journalists' materials. What
do you, as journalists, believe to be journalists' material?
(Mr Gopsill) First I would like to establish something
which is not clear to me. Clause 6 referred to the MoD Police
or the military police?
833. It refers to the military police.
(Mr Gopsill) That is the confusion that we had. We
were badly briefed on that ourselves, and perhaps if you have
heard any references we have made to the same that was a mistake.
The point remains the same, however. The powers that will be given
to the military police, in this case, are those under Section
10 of the Police and Criminal Evidence Act, as I understand it,
which determines the circumstances in which the police can obtain
material for investigations. There is a special procedure in that
section covering journalists' confidential material, which requires
an Order of the Crown Court for the information to be handed over.
The definition of "confidential material" of journalists
is "that which is not published". In other words, the
profession of journalism exercises its discretion, according to
our codes of conduct and so on, that the maximum information that
can be published is that which is in the public interest. Journalists
always have other information which either they do not want to
publish or which cannot be published, for whatever reason. For
instance, the most contentious area is information given to them
in confidencethe source and identity of information. The
whole function of journalism depends on the preservation of confidentiality
in those cases. It is very similar to the confidentiality of the
solicitor, the doctor or the priest, which is respected.
834. Would it be fair for me to assume that
these kinds of excluded, journalistic materials would relate to
an investigation you were carrying out or a story you were carrying
(Mr Gopsill) Yes.
835. Presumably, from their point of view, that
would be concerned with not a trivial crime but a fairly major
crime and that one would not imagine you would have excluded materials
relating to light car crimes, for example. The kind of material
we are talking about here is likely to be concerned with nuclear
weapons bases, and all that sort of thing.
(Mr Gopsill) I can see the concern in this case for
military information, but it covers a wide range. All journalists
have lots of information, and particularly the identity of confidential
sources of information, covering a wide area of very trivial to
very serious. Certainly there are very serious matters.
836. I am just trying to understand why they
want this extension of power. From their point of view they want
this extension of power because they want to obtain material from
you which would be of a classified, highly sensitive nature, not
of the kind of nature that would be everyday activity.
(Ms Linscott) The assumption must be that they would
require the material in relation to collecting evidence against
Service people. So they would presumably be asking for powers
to collect notes or films in support of a possible case against
a Service person. Of course, all that Tim Gopsill has said about
that would apply in this case, but with the alarming thing that
civilians simply do not expect to have to answer to military police.
(Mr Geraghty) There is another scenario I can offer
Mr Keetch in answer to your question. It is a simple historical
fact that Gill Linscott and I, at various times in past years,
have interviewed members of the Irish Republican Army who are
wanted by the Armed Services. Had we been vulnerable to having
our notes and sources searched by military police, that very clear
and very justified interest in what we are doing would put us,
as journalists, directly in the firing line.
837. Surely if there was the concern of the
State that that was happening, one would have imagined that it
would be Special Branch that would be carrying out
(Mr Geraghty) One would hope so, yes.
838. An accountable Special Branch as opposed
to what we might consider a unaccountable Ministry of Defence
(Ms Linscott) Exactly.
Chairman: Mr Key, you have waited extremely
patiently, and I know you have several points that you want to
839. Thank you, Chairman. There are just two
areas I would like to pursue, please. The first is the question
of the independence of the Ministry of Defence Police. You mention
that you are concerned about their accountability. I wonder if
any of you have read, or are aware of, the paper called The
Future Strategic Context for Defence, published on 7 February
this year by the Defence Secretary? You have heard about it?
(Ms Linscott) Yes.