Further to our Memorandum dated 29 January 2001 I attach a further explanatory note that relates to the Human Rights Act and Implications upon the MDP Appeal Rights.

  You will note the proposed amendment, which, if accepted, would allow the power to provide for a right of appeal in cases where a lesser punishment is awarded.

  When the relations for Home Department Police where passed the human rights legislation had not been enacted. Our view is that to restrict the right of appeal to the more severe penalties may not comply with the Human Rights Convention and as such would be contrary to the Human Rights Act.

  The wording proposed defers this issue for further consideration at the stage of formulating the relevant regulations. If you require any further information please do not hesitate to contact the Federation.

INTRODUCTION

  Currently members of the Ministry of Defence Police may be disciplined under the Ministry of Defence Police (Discipline) Regulations 1985, as amended. Their appeal rights are contained in the Ministry of Defence Police (Appeals) Rules 1985, as amended.

  These provisions are not made by statutory instrument such that Schedule 5, paragraphs 3 and 4 of the Armed Forces Bill proposes powers to establish new disciplinary and appeal procedures by statutory instrument.

  The intention is to mirror the procedures applicable to Home Department Forces as set out in the Police Act 1996 and Regulations made thereunder.

  However, the appeal rights proposed would be restricted only to cases where the officer concerned has been dismissed, required to resign or reduced in rank. This is more restrictive than the current provisions and an officer who suffers a reduction in pay, fine, reprimand or caution, would have no rights to pursue an independent appeal.

  Questions arise as to whether such a restriction on appeal rights would comply with the Human Rights Act 1998.

CURRENT POSITION

  Under the 1985 Discipline Regulations, Regulation 24 provides for seven punishments, namely, dismissal from the Force, requirement to resign, reduction in rank, reduction in rate of pay, fine, reprimand and caution.

  Regulation 16 permits the Chief Constable of MDP to delegate the hearing to an Assistant Chief Constable who may only impose one of the four less serious penalties, ie reduction in rate of pay, fine, reprimand or caution. Otherwise, subject to those cases which proceed before a Disciplinary Tribunal, the charges are heard by the Chief Constable who may impose any of the seven punishments referred to.

  By Regulation 26, where an Assistant Chief Constable has heard a less serious offence under Regulation 16, the accused officer may appeal to the Chief Constable who may not award a punishment greater than that awarded at the original hearing.

  Rule 4 of the 1985 Appeals Rules allows appeal to the permanent Under-Secretary of State. This applies whether or not there has been a Regulation 16 hearing. There is no restriction preventing appeals where the four less serious punishments have been imposed. Appeals may proceed, whatever the punishment.

HOME DEPARTMENT POLICE

  The Police Act 1996 contains Regulation making powers in relation to police discipline and appeals.

  The Police (Conduct) Regulations 1999 made thereunder provide at Regulation 34 for an internal review by the Chief Officer or Assistant Commissioner in the case of the Metropolitan Police. This applies whatever the punishment.

  However, by Section 85 of the Police Act 1996, the right to appeal to the Police Appeals Tribunal applies only where there has been a dismissal, requirement to resign or reduction in rank.

  There is no such right to pursue an independent appeal where there has been a reduction in pay, fine, reprimand or caution.

ARMED FORCES BILL PROPOSALS

  The proposals in Schedule 5, paragraphs 3 and 4 of the Armed Forces Bill seek to ensure uniformity between the position with regard to MDP and Home Department Forces.

  In doing so, members of the MDP who currently have unrestricted rights of appeal to the Permanent Under-Secretary State will now have only a restricted right of appeal to the Police Appeals Tribunal, once the relevant Regulations have been enacted.

  Although this will ensure uniformity, questions arise as to the position under the Human Rights Act, with particular reference to Article 6 of the Convention, the right to a fair trial. This provides that:

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

  There is clearly considerable doubt as to whether, in the case of the less serious penalties, the officer concerned has had a hearing by an independent and impartial tribunal. The senior officers conducting the initial hearing and any subsequent review will not be independent of the Ministry of Defence Police on behalf of whom the discipline charges are brought.

  Plainly, even in relation to the less serious penalties, the hearing will involve the determination of the accused officer's civil rights and obligations. Reductions in pay and fines may involve substantial financial penalties. Further, any finding of guilt in a disciplinary case, whatever the punishment, will considerably impact upon an accused officer's career and promotion prospects.

  Accordingly, a member of MDP denied the right to appeal pursuant to the proposed provisions may seek a declaration of incompatibility pursuant to section 4 of the 1998 Act.

PROPOSED REMEDY

  It is suggested that the matter is deferred for further review and that pending the conclusion thereof, the proposed Section 4A(2) is amended:

—  To insert

(a)  make provision that a member of the Ministry of Defence Police who is dealt with by reduction in rate of pay, fine, reprimand or caution pursuant to a decision taken in proceedings under the regulations made in accordance with section 3A above may appeal to the appeals tribunal except where he has a right to apply to some other person for a review of the decision; and in that case he may appeal to the appeals tribunal from any decision of that other person as a result of which he is dealt with by reduction in rate of pay, fine, reprimand or caution.

—  To revise the current lettering such that (a) becomes (b), (b) becomes (c) and (c) becomes (d).

February 2001