Armed Forces (Tri-Service Serious Crime Unit) (Consequential Amendments) (No. 2) Regulations 2022

Baroness Goldie Excerpts

Tuesday 8th November 2022 Lords Chamber

Moved by

[Baroness Goldie]

That the draft Regulations laid before the House on 17 October be approved.

[The Minister of State, Ministry of Defence (Baroness Goldie) (Con)]

My Lords, this statutory instrument makes a minor consequential amendment to Regulation 8(1) of the Armed Forces (Part 5 of the Armed Forces Act 2006) Regulations 2009. This change is required to support the establishment of the Defence Serious Crime Unit, or DSCU for short. It does this by ensuring that the new provost marshal and service police personnel of this tri-service unit are governed by the same legislation as the existing three single-service provost marshals and single-service police forces. This instrument amends Regulation 8(1) to include any reports prepared by, or provided to, the tri-service Serious Crime Unit to be provided to a person’s commanding officer when referring that person’s case to the Director of Service Prosecutions.

Although this is only a minor and consequential amendment, the original set of regulations it amends is subject to the affirmative procedure, meaning that this statutory instrument must also follow this procedure. Other consequential amendments are being made to secondary legislation by the Armed Forces (Tri-Service Serious Crime Unit) (Consequential Amendments) Regulations 2022, which is subject to the negative procedure.

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[Lord Tunnicliffe (Lab)]

My Lords, I thank the Minister for introducing this narrow and consequential SI, which of course we totally support. It gives us an opportunity to have hopefully a final look at this gaggle of legislation that has been necessary to introduce these reforms.

I worry about whether there will be problems deciding what a serious crime is. One can see how it might become defined within a single service, and I am totally in favour of the tri-service unit, but this will involve single-service police forces designating a crime as important for the tri-service specialists. What criteria will be used to decide that it should go to the tri-service specialists? Who will make that decision? To what extent do the criteria differ from those presently used by the single-service specialist units? On personnel, how will the tri-service unit ensure it has the specialist technical capability to investigate serious crimes?

In the Minister’s introduction she touched on civilian involvement. Can she repeat that, for clarity? Does this mean that people recruited from civilian police forces or other specialists will have operational capability? In other words, will they be able to serve alongside military operational police? In those circumstances, will they still be civilian in character?

Having asked those questions, I repeat our total support for the reforms, in respect of which this is one of the last consequential amendments.

[Baroness Goldie (Con)]

I thank noble Lords for their contributions. As all have observed, this is a fairly narrow field of activity; none the less, the questions are predictably penetrating and searching. I will try to deal with them.

The noble and gallant Lord, Lord Craig, echoed by the noble Lord, Lord Tunnicliffe, asked what sort of crimes the serious crime unit will be investigating. I can give some degree of detail, which I hope will be helpful. I should say that it will be generically responsible for the investigation of all serious crimes committed by those subject to service law. It is worth noting that the MoD working definition of “serious crimes” is not the same as that contained in the Serious Crime Act, which I think was at the heart of the question posed by the noble and gallant Lord, Lord Craig.

So to clarify, serious crime for the purposes of the DSCU is an offence listed under Schedule 2 to the Armed Forces Act 2006, an offence committed in proscribed circumstances, or an offence under Section 42 of the Armed Forces Act 2006 for which the corresponding offence under the law in England and Wales is indictable, or any other offence which may not be dealt with at a summary hearing by a commanding officer. This essentially captures most criminal offences, which are triable only by a court martial, and some military offences such as the ill-treatment of personnel in initial training.

Prior to the DSCU standing up, the single services all have a different threshold for how they determine serious crime; as such, getting clear statistics on the full range of serious crimes is challenging. Official statistics for the most serious offences of murder, manslaughter, sexual offences and domestic abuse in the service justice system are published annually. In 2021, there were 239 service police investigations into these offences.

The rank of single service provost martial differs in each service and, as your Lordships will be aware, each is independent from the other and each has no ability to compel the other. But on 5 December, all single service SIB personnel will transfer under the direct command of the provost marshal of serious crime, who will investigate serious crime independently of the three single services and be answerable to the Chief of Defence People and Vice Chief of Defence Staff for the execution their duties. There are agreements that the single service provost martial will assist the provost marshal of serious crime in responding to serious crime in the first instance.

The noble and gallant Lord, Lord Craig, also asked about governance arrangements. I have alluded briefly to what the line of accountability is. On the matter of governance, options relating to the strategic policing and governance board are being developed to ensure the most appropriate and effective governance mechanism is created for the DSCU and the wider service police.

The noble Baroness, Lady Smith, rightly pointed out that a lot of this is now tied in with the various reviews—such as by his Honour Shaun Lyons and Sir Richard Henriques. These have been very important contributions to the development all of this. I hope that we are now reflecting the important recommendations and sensible suggestions provided in these reviews to ensure that the system is fit for purpose to deal with these serious crimes, and that we will have the necessary specialisms. I think I indicated in my speaking notes there is now a healthy cross-transfer with the Home Office police forces, the College of Policing and the guidance offered by the Police Council. So there is very good cross-fertilisation of training and professional standards.

The noble and learned Lord, Lord Hope, asked specifically about Gibraltar. I did find an inquiry but the situation is a little complicated. I will read out this note only because the question was asked by a lawyer; others will struggle to follow it, but here goes:

“The Armed Forces Act of 2006 originally extended to all the British Overseas Territories and was part of local law but that expired in 2011 in the British Overseas Territories including Gibraltar as a result of a drafting error when the Armed Forces Act 2006 was renewed for the first time by the Armed Forces Act of 2011.”


The Armed Forces Act 2016 corrected this error—I am letting a noble Lord take his seat, as I see that the noble and learned Lord is listening with rapt attention to this—by extending the Armed Forces Act 2006 to the British Overseas Territories once again. But, and this is interesting, Gibraltar was not included because it had instead asked to deal with the issue using legislation passed by the Gibraltar Parliament. Under UK law, the Armed Forces Act 2006 continues to apply to the UK’s regular and Reserve Forces when they are in the British Overseas Territories, including Gibraltar, even if it does not form part of local law, just as it applies in any foreign state where UK Armed Forces are deployed. UK law therefore allows those in the UK Armed Forces who commit service offences in Gibraltar to be charged with those offences. The Armed Forces (Gibraltar) Act 2018 recognises that the Armed Forces Act 2006 applies in Gibraltar, so there is an application but by a rather circuitous route.

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[Lord Tunnicliffe (Lab)]

Before the Minister sits down—she probably deserves a round of applause for that last answer—can I press my two points a little further? First, I have this vision of the military equivalent of Constable Plod coming across a crime. Somewhere there must be a process where that crime goes up the chain of command and gets to somebody who says, “This is a serious crime and it has to go to the specialist unit”. Who would that be? The Minister can write to me if it is too difficult to answer now. Secondly, on the use of civilians, will they have operational powers? In other words, when they are working with the military will they have the power of arrest?

[Baroness Goldie (Con)]

I thank the noble Lord. I was not forgetting him and was going to endeavour to address those points. It is the provost marshal of the Defence Serious Crime Unit who is in overall charge, and who will therefore expect to assume jurisdiction over the sort of crime that I detailed to the noble and gallant Lord, Lord Craig of Radley. I will endeavour to find out more about the mechanics of the structure to see if I can satisfy the noble Lord, Lord Tunnicliffe, about how this works in practice, but I understand that there are clearly understood lines of communication and information to ensure that the system works smoothly.

On civilians, the DCSU will be staffed and led by service police because, unlike civilian police, they can investigate offences wherever they are committed and use their powers overseas. They are trained and ready to deploy wherever the Armed Forces operate, including in operational theatres. Importantly, the DCSU will have access to civilian expertise by embedding reservists who are police officers in the Home Office police forces. Sir Richard Henriques recommended that the deputy provost marshal be a civilian but, due to restrictions on jurisdiction and operational deployment requirements, there is a need for the deputy provost marshal to be military. However, the DCSU will optimise the use of our skilled and experienced Reserve Forces, many of whom are serving civilian police officers within the Home Office police forces. They will be embedded within the new unit and play a significant role.

Perhaps I can provide further reassurance: the new unit will be independently inspected by His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services, so there is an overall independence of monitoring. I think that has dealt with the points that were raised, so I thank noble Lords for their contributions.

Motion agreed.