The Armed Forces Act 2006 (Transitional Provisions etc) Order 2009

Powers of punishment where finding reached before commencement

55.—(1) This article applies where, at commencement, an SDA finding of guilt has been recorded but punishment has not been awarded.

(2) For the purposes of paragraph (1) “an SDA finding of guilt” has been recorded if—

(a) a finding that a charge has been proved has been recorded under section 76B(7) of AA 1955 or AFA 1955; or

(b) a finding of guilt has been recorded under section 52D(7) of NDA 1957.

(3) Where this article applies, the appropriate officer must award punishment as if the SDAs and related subordinate legislation continued in force (and had done so since commencement) and AFA 2006 were not in force.

(4) In paragraph (3) “related subordinate legislation” means—

(a) any regulations, or orders of the Secretary of State, made under the SDAs that were in force immediately before commencement; and

(b) any authorisation by the Defence Council for the purposes of section 76C(2)(e) of AA 1955 or AFA 1955 (minor punishments) that had effect immediately before commencement.

(5) The officer’s duty under paragraph (3) to award punishment includes a duty to make any other order or direction when dealing with the offender that the officer would have made under the SDAs; but this is subject to paragraph (6).

(6) If by virtue of paragraph (3) the officer imposes a sentence of detention under section 43(1)(e) of NDA 1957, the officer may not make a committal order under section 81(3) of that Act (but this does not affect his power to make an order under section 90(1) of that Act suspending the sentence).

(7) Regulations 45A, 49A and 53A of the Naval Summary Discipline Regulations (February) 2009(1) shall continue in force in relation to any order or direction made or proposed to be made under section 91B of NDA 1957 in pursuance of paragraph (5).

(8) In paragraph (3) the reference to “the appropriate officer” is to the officer who would have awarded punishment if the repeal of the SDAs had not come into force.

(9) The powers conferred by this article include power—

(a) for the officer who recorded the finding to exercise any power that that officer would have had, under regulations made under the SDAs, to refer the case to another officer for punishment;

(b) for an officer to whom the case is referred by virtue of sub-paragraph (a), or to whom it was referred for punishment before commencement, to exercise any power that that officer would have had under such regulations to refer the case to another officer for punishment; and

(c) accordingly, for the officer (if any) to whom the case is referred by virtue of sub-paragraph (a) or (b) to award punishment as mentioned in this article.

(10) In this article “the SDAs” means the provisions of AA 1955, AFA 1955 and NDA 1957 whose repeal came into force at commencement.

(11) Any reference in this Order to a sentence or punishment under a provision of AA 1955, AFA 1955 or NDA 1957 includes such a sentence or punishment awarded by virtue of this article.

(1)

These Regulations are made by the Defence Council under sections 43, 52E and 52F of NDA 1957 and published in the Manual of Naval Law.