Armed Forces Act 2001

Section 32(9)

SCHEDULE 5 Testing for alcohol or drugs

Army Act 1955 (c. 18) and Air Force Act 1955 (c. 19)

1 (1) Section 34A of each of the 1955 Acts is amended as follows.

(2) In subsection (1), for “testing for the presence of drugs” there is substituted “the purpose of ascertaining whether, or to what extent, he has, or has had, drugs in his body”.

(3) After subsection (1) there is inserted—

“(1A) A drug testing officer may not request a person to provide a sample under subsection (1) above if—

(a) he is that person’s commanding officer, or

(b) the commanding officer of that person is also his commanding officer.

(1B) A request under subsection (1) above may not be made if the sample is sought in connection with—

(a) an investigation under this Act of an offence, or

(b) an investigation of such an incident as is referred to in section 32(1)(a) of the Armed Forces Act 2001 (powers to test for alcohol or drugs after serious incident).

(1C) The results of tests performed on a sample provided by a person at the request of a drugs testing officer shall not be admissible in evidence against—

(a) that person, or

(b) any other person,

in proceedings before a court-martial, commanding officer or appropriate superior authority.

(1D) Nothing in this section—

(a) limits the powers conferred by—

(i) sections 6 and 7 of the Road Traffic Act 1988 (breath tests and provision of specimens for analysis), as applied by section 184 of that Act, or

(ii) sections 62 and 63 of the Police and Criminal Evidence Act 1984 (intimate and other samples), as applied by order under section 113(1) of that Act; or

(b) affects the admissibility in any proceedings of evidence obtained under those powers.”

2 After section 34A of the Army Act 1955 (c. 18) there is inserted—

“34B Failure to provide sample after serious incident

Any person subject to military law who, without reasonable excuse, fails to comply with a request made under subsection (3) or (4) of section 32 of the Armed Forces Act 2001 (powers to test for alcohol or drugs after serious incident) shall be guilty of an offence and shall, on conviction by court-martial, be liable to imprisonment for a term not exceeding six months or any less punishment provided by this Act.”

3 After section 34A of the Air Force Act 1955 (c. 19) there is inserted—

“34B Failure to provide sample after serious incident

Any person subject to air-force law who, without reasonable excuse, fails to comply with a request made under subsection (3) or (4) of section 32 of the Armed Forces Act 2001 (powers to test for alcohol or drugs after serious incident) shall be guilty of an offence and shall, on conviction by court-martial, be liable to imprisonment for a term not exceeding six months or any less punishment provided by this Act.”

4 In the proviso to section 209(2) of each of the 1955 Acts (application of Act to civilians), for the words from “except” onwards there is substituted— “except—

(a) sections 29, 35, 36 and 55 to 57, and section 68 so far as it relates to those sections, and

(b) in the case of persons falling within any description specified in paragraphs 1 to 4 of Schedule 5, section 34B and section 68 so far as it relates to that section.”

Naval Discipline Act 1957 (c. 53)

5 (1) Section 12A of the 1957 Act (failure to provide a sample for drug testing) is amended as follows.

(2) In subsection (1)—

(a) for “testing for the presence of drugs” there is substituted “the purpose of ascertaining whether, or to what extent, he has, or has had, drugs in his body”, and

(b) the words “on conviction by court-martial” are omitted.

(3) After that subsection there is inserted—

“(1A) A drug testing officer may not request a person to provide a sample under subsection (1) above if—

(a) he is that person’s commanding officer, or

(b) the commanding officer of that person is his commanding officer.

(1B) A request under subsection (1) above may not be made if the sample is sought in connection with—

(a) an investigation under this Act of an offence, or

(b) an investigation of such an incident as is referred to in section 32(1)(a) of the Armed Forces Act 2001 (powers to test for alcohol or drugs after serious incident).

(1C) The results of tests performed on a sample provided by a person at the request of a drugs testing officer shall not be admissible in evidence against—

(a) that person, or

(b) any other person,

in proceedings before a court-martial, commanding officer or appropriate superior authority.

(1D) Nothing in this section—

(a) limits the powers conferred by—

(i) sections 6 and 7 of the Road Traffic Act 1988 (breath tests and provision of specimens for analysis), as applied by section 184 of that Act, or

(ii) sections 62 and 63 of the Police and Criminal Evidence Act 1984 (intimate and other samples), as applied by order under section 113(1) of that Act; or

(b) affects the admissibility in any proceedings of evidence obtained under those powers.”

(4) In subsection (2), in the definition of “drug testing officer”, for “or non-commissioned officer” there is substituted “, chief petty officer, petty officer or leading rating”.

6 After section 12A of the 1957 Act there is inserted—

“12B Failure to provide sample after serious incident

Any person subject to this Act who, without reasonable excuse, fails to comply with a request made under subsection (3) or (4) of section 32 of the Armed Forces Act 2001 (powers to test for alcohol or drugs after serious incident) shall be guilty of an offence and shall be liable to imprisonment for a term not exceeding six months or any less punishment provided by this Act.”

7 In section 118(2) of the 1957 Act (application to certain civilians)—

(a) in paragraph (a), after “sections” there is inserted “12B,”, and

(b) at the end of the proviso there is inserted “and the said section 12B, and sections 40 and 41 so far relating thereto, shall apply only to persons falling within any description specified in paragraphs 1 to 4 of Schedule 3”.