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Armed Forces Act 2006

Assisting an enemy, misconduct on operations etc
Section 1: Assisting an enemy

43.This section makes it an offence for a person subject to service law to intentionally assist an enemy in a number of specified ways, such as communicating with an enemy or providing the enemy with supplies. Subsection (2) concerns service personnel who, having been captured, intentionally assist the enemy. Helping the enemy in their war effort is the main way in which an offence under subsection (2) is committed. A defence of lawful excuse applies in all circumstances; for example service personnel might be ordered to communicate with an enemy in order to deceive them. The maximum penalty is life imprisonment.

44.“Enemy” is widely defined in section 374\, and includes enemy troops but also, for example, armed mutineers or rioters.

Section 2: Misconduct on operations

45.When a person subject to service law is taking part, or under orders to take part, in operations against an enemy, or is in the vicinity of an enemy, he commits an offence if he is found to be guilty of misconduct in the following circumstances. These are:

  • surrendering or abandoning a place when under a duty to defend it (subsection (1))

  • failing to do his utmost to carry out lawful commands (subsection (3))

  • when carrying out certain important duties (such as guard duty) sleeping or leaving their place of duty (subsection (4))

  • making statements (or other communications) likely to cause alarm or despondency among HM Forces or allied forces, or among accompanying civilians who are subject to service discipline (subsection (5))

46.In most cases no offence is committed if the person in question has a reasonable excuse for his actions.

47.The maximum penalty for this offence is life imprisonment.

Section 3: Obstructing operations

48.Under this section a person subject to service law is guilty of an offence if he

  • intentionally or recklessly puts an operation of HM Forces at risk, or

  • intentionally delays or discourages such an operation.

49.There may be a good military reason for delaying, or even for discouraging, an operation, for example because of likely adverse weather conditions or expected enemy strength. Accordingly such conduct is only an offence if there is no lawful excuse.

50.If an offence under this section relates to an action or operation against an enemy, the maximum penalty is life imprisonment; otherwise the maximum penalty is ten years’ imprisonment.

Section 4: Looting

51.Service personnel and civilians subject to service discipline may be guilty of looting in defined circumstances. The offence recognises that armed conflicts, natural disasters and other situations in which service personnel may be operating can leave people and property unprotected, and provide opportunities to steal or otherwise interfere with property. This section concerns looting in the following circumstances:

  • taking property from a person who has been killed, wounded, captured or detained during operations of HM Forces or allied forces, or searching such a person with the intention of taking property from him (subsection (1))

  • taking property which has been left behind as a result of the operations of HM Forces, or allied forces, or as a result of an event (such as social collapse or natural disaster) which has resulted in such forces being present (subsection (2))

  • taking any vehicle or other equipment abandoned by an enemy, unless this is done for the public service (for example taking ammunition or vehicles for use in combat) (subsection (3))

52.For those offences set out in subsections (1) and (2), the maximum penalty is life imprisonment. For an offence within subsection (3) the maximum sentence is seven years’ imprisonment.

Section 5: Failure to escape etc

53.It is an offence for service personnel who have been captured by an enemy:

  • to fail to escape (or otherwise rejoin HM Forces), where they could reasonably be expected to take steps to do so, or

  • to intentionally prevent or discourage a member of HM Forces from taking reasonable steps to do so.

54.Service personnel are not required to take steps which could not reasonably be expected, for example because of the danger involved or the individual’s physical condition.

55.The maximum sentence for this offence is ten years’ imprisonment.

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