Armed Forces Act 2016

2 Commanding officer’s power to require preliminary alcohol and drugs tests

(1) In the heading of Chapter 3A of Part 3 of AFA 2006 (testing for alcohol and drugs on suspicion of offence), for “on suspicion of offence” substitute “in connection with a suspected offence or accident”.

(2) In section 93A of AFA 2006 (commanding officer’s power to require preliminary tests)—

(a) before subsection (1) insert—

“(A1) This section applies in the situations described in subsections (1) to (3C).”,

(b) in subsection (1), for “This section applies” substitute “The first situation is”,

(c) in subsection (1)(a), for “relevant offence” substitute “safety-critical duty offence”,

(d) in subsection (1)(b), for “a relevant” substitute “such an”,

(e) omit subsection (2),

(f) in subsection (3), for “This section also applies” substitute “The second situation is”,

(g) after subsection (3) insert—

“(3A) The third situation is where the commanding officer of a person subject to service law or of a person who is a civilian subject to service discipline has reasonable cause to believe that—

(a) there has been an accident involving an aircraft or a ship; and

(b) at the time of the accident, the person was carrying out an aviation function in relation to the aircraft or a marine function in relation to the ship.

(3B) The fourth situation is where the commanding officer of a person subject to service law or of a person who is a civilian subject to service discipline has reasonable cause to believe that—

(a) there has been an accident involving an aircraft or a ship;

(b) before the accident, the person carried out an aviation function in relation to the aircraft or a marine function in relation to the ship; and

(c) it is possible that the carrying out of the function by the person may have caused or contributed to—

(i) the occurrence of the accident;

(ii) any death, injury to a person, damage to property or environmental harm resulting from the accident; or

(iii) any risk of death or of such injury, damage or harm created by the accident.

(3C) The fifth situation is where the commanding officer of a person subject to service law or of a person who is a civilian subject to service discipline has reasonable cause to believe that—

(a) there has been an accident which resulted in or created a risk of—

(i) death;

(ii) serious injury to any person;

(iii) serious damage to property; or

(iv) serious environmental harm;

(b) the person—

(i) was carrying out a safety-critical function at the time of the accident; or

(ii) carried out a safety-critical function before the accident; and

(c) it is possible that the carrying out of the safety-critical function by the person may have caused or contributed to—

(i) the occurrence of the accident;

(ii) the death, injury, damage or harm; or

(iii) the risk of death, injury, damage or harm.”, and

(h) in subsection (4)—

(i) at the beginning insert “Where this section applies,”, and

(ii) for “subsection (1) or (3) (“the suspected person”)” substitute “subsection (1), (3), (3A), (3B) or (3C) (“the affected person”)”.

(3) After that section insert—

“93AA Section 93A: interpretation

(1) In section 93A(1), “safety-critical duty offence” means—

(a) an offence under section 20A; or

(b) an offence under section 20(1)(a) in respect of a safety-critical duty (as defined in section 93I).

(2) In section 93A(3A) and (3B)—

• “aviation function” means a role or activity in connection with aviation that is specified, or of a description specified, by regulations made by the Defence Council for the purposes of those subsections;

• “marine function” means a role or activity in connection with a ship or ships that is specified, or of a description specified, by regulations made by the Defence Council for the purposes of those subsections.

(3) The Defence Council may specify a role or activity (or description of role or activity) under subsection (2) only if carrying it out with ability impaired by alcohol or drugs would result in a risk of—

(a) death,

(b) serious injury to any person,

(c) serious damage to property, or

(d) serious environmental harm,

but this is subject to subsection (4).

(4) The Defence Council’s powers under subsection (2) include power to specify a role or activity that is undertaken in preparation for, or in connection with, the carrying out of a role or activity (or description of role or activity) that satisfies the test in subsection (3), either by specifying such a role or activity generally or by specifying a particular role or activity.

(5) For the purposes of section 93A(3A) and (3B), an accident does not involve an aircraft or a ship simply because it takes place on an aircraft or ship.

(6) In section 93A(3C), references to the carrying out of a safety-critical function are to—

(a) the performance by a person subject to service law of a duty specified, or of a description specified, by regulations under section 20A(2) or of any other safety-critical duty (as defined in section 93I); or

(b) the carrying out by a person who is a civilian subject to service discipline, in the course of the person’s employment, of a role or activity which, if it were carried out by a person subject to service law in the course of his or her duty, would be a safety-critical duty.

(7) References in section 93A and this section to a person carrying out a function include a failure by the person to carry out a function at a time when the person is responsible for carrying it out (and related expressions are to be read accordingly).”

(4) In section 93B of AFA 2006 (preliminary breath test)—

(a) in subsection (1), at the beginning insert “In a situation described in section 93A(1) or (3),”,

(b) in subsection (1)(a), for “suspected” substitute “affected”,

(c) after subsection (1) insert—

“(1A) In a situation described in section 93A(3A), (3B) or (3C), a preliminary breath test is a procedure administered by a service policeman under which—

(a) the affected person provides a specimen of breath; and

(b) the specimen is used for the purpose of obtaining, by means of an approved device, an indication of the proportion of alcohol in the person’s breath or blood.”, and

(d) in subsection (3), for “93A(2)” substitute “93A(1)(a)”.

(5) In section 93C of AFA 2006 (preliminary impairment test), in subsection (1)(a) and (b), for “suspected” substitute “affected”.

(6) In section 93D of AFA 2006 (preliminary drug test), in subsection (1)(a), for “suspected” substitute “affected”.

(7) In section 93I of AFA 2006 (definitions for the purposes of Chapter 3A of Part 3), in the definition of “safety-critical duty”, after “93A(1)” insert “, 93AA(6)(a)”.

(8) In section 373 of AFA 2006 (regulations etc)—

(a) in subsection (2) (regulations made by Defence Council), after “36,” insert “93AA,”, and

(b) in subsection (3)(d) (affirmative procedure), after “20A,” insert “93AA(2),”.