Armed Forces Act 2006

Powers of charging etc

119 Circumstances in which CO has power to charge etc

(1) This section sets out the circumstances in which a commanding officer has initial powers (defined by section 120) in respect of a case.

(2) If a commanding officer of a person becomes aware of an allegation which indicates, or circumstances which indicate, that the person has or may have committed a service offence, he has initial powers in respect of the case.

(3) Subsection (2) does not apply if the allegation or circumstances—

(a) give or have given rise to the duty under section 113(1) or 114(1);

(b) are being or have been investigated by a service police force; or

(c) are being or have been investigated by a UK police force or overseas police force, and it appears to the commanding officer that that force may refer the matter to the service police.

(4) A commanding officer has initial powers in respect of a case which a service policeman has referred to him under section 116(3) (referral of case following investigation by service or civilian police).

(5) A commanding officer has initial powers in respect of a case which the Director of Service Prosecutions has referred to him under section 121(4) (referral of case by DSP).

(6) If an allegation or circumstances mentioned in subsection (2) relate to two or more incidents (or alleged incidents) or the conduct (or alleged conduct) of two or more persons, each person’s conduct in relation to each incident is to be regarded as giving rise to a separate case.

120 Power of CO to charge etc

(1) Subsections (2) and (3) apply where under section 119 a commanding officer has initial powers in respect of a case.

(2) The officer may bring, in respect of the case, one or more charges that are capable of being heard summarily (see section 52).

(3) The officer may refer the case to the Director of Service Prosecutions.

(4) A charge brought under subsection (2) is to be regarded for the purposes of this Part as allocated for summary hearing.

(5) Where an officer refers a case under subsection (3), any other case—

(a) which is of a description prescribed by regulations under section 128 for the purposes of this subsection, and

(b) as respects which the officer has initial powers,

is to be treated as referred under subsection (3) to the Director of Service Prosecutions.

121 Power of DSP to direct bringing of charge etc

(1) The powers in subsections (2) to (5) are exercisable by the Director of Service Prosecutions (“the Director”) in respect of a case which has been referred to him under—

(a) section 116(2) (referral of case following investigation by service or civilian police); or

(b) section 120(3) (referral of case by CO).

(2) The Director may direct the commanding officer of the person concerned to bring, in respect of the case, such charge or charges against him as may be specified in the direction.

(3) If—

(a) the Director makes a direction under subsection (2), and

(b) the Service Civilian Court has jurisdiction to try the charge specified in the direction,

the Director may allocate the charge for trial by that court.

(4) The Director may refer the case to the commanding officer of the person concerned, but only if he has decided that it would not be appropriate to make a direction under subsection (2) in respect of it.

(5) The Director may make a direction under section 127(1) or (2) (directions barring further proceedings) in respect of any offence as regards which he could make a direction under subsection (2).

122 Charges brought at direction of DSP

(1) Where a direction under section 121(2) is given to an officer, he must bring the charge or charges specified in the direction.

(2) A charge brought as a result of such a direction—

(a) is to be regarded for the purposes of this Part as allocated for Service Civilian Court trial if the Director of Service Prosecutions allocated it (under section 121(3)) for trial by that court;

(b) otherwise, is to be regarded for the purposes of this Part as allocated for Court Martial trial.