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Armed Forces Act 2006

Criminal conduct
Section 42: Criminal conduct

121.Under this section it is an offence for a person subject to service law, or a civilian subject to service discipline, to do something which is an offence under the criminal law of England and Wales or would be such an offence if done in England or Wales.

122.The punishments available on conviction of an offence under this section depend on those available for the civilian offence to which the offence corresponds. If the civilian offence is punishable with imprisonment, all the punishments listed in section 164 are available, but a sentence of imprisonment, or a fine, must not exceed the maximum that could be imposed for the corresponding offence. If the civilian offence is not punishable with imprisonment, any punishment listed in section 164 is available except imprisonment, dismissal with disgrace, dismissal and detention, but again the maximum fine is the same as for the corresponding offence.

Section 43: Attempting criminal conduct

123.Under the Criminal Attempts Act 1981, an attempt is a criminal offence under the law of England and Wales only if it is an attempt to do an act which, if done, would be an indictable offence under that law (other than certain excluded offences). As it stands, this would mean that a person subject to service law commits no offence under section 42 unless his intention is to do an act which, if done, would in fact be an indictable offence under English law. This requirement would not normally be satisfied if the intended act would have been done outside England and Wales. This section modifies the 1981 Act so that it is sufficient for an offence under section 42 if the intended act would be an indictable offence (other than the excluded offences) if it were done in England or Wales. It is immaterial that it would in fact have been done outside England and Wales.

Section 44: Trial of section 42 offence of attempt

124.This section provides for the manner in which it is to be determined, at the trial of a charge of attempt contrary to section 42, whether the defendant’s act was an attempt as distinct from mere preparation for the commission of an offence. If there is sufficient evidence to justify a finding that the act was an attempt, it is a question of fact—and therefore, in a trial by the Court Martial, for the members of the court other than the judge advocate—whether the act was an attempt. The section is in similar terms to section 4(3) of the Criminal Attempts Act 1981. Section 39(8) makes corresponding provision for the trial of a charge of attempt under that section.

Section 45: Conspiring to commit criminal conduct

125.This section modifies the Criminal Law Act 1977 (which creates the criminal offence of conspiracy to commit an offence) so that an agreement to a course of conduct being pursued outside England and Wales is an offence under section 42 not only if that course of conduct would in fact involve the commission of an offence under English law, but also if the same conduct in England or Wales would involve the commission of such an offence.

Section 46: Inciting criminal conduct

126.This section similarly modifies the common law offence of incitement so that inciting another to do an act outside England and Wales is an offence under section 42 not only if that act would in fact be an offence under English law, but also if the same act in England or Wales would be such an offence.

Section 47: Aiding, abetting, counselling or procuring criminal conduct

127.This section similarly modifies the law relating to persons who aid, abet, counsel or procure the commission of an offence under English law. The effect is that, for the purposes of section 42, a person is to be regarded as aiding, abetting, counselling or procuring the commission of an offence under English law if he aids, abets, counsels or procures the doing of an act outside England and Wales which would be such an offence if done in England or Wales.

Section 48: Provision supplementary to sections 43 to 47

128.Sections 43, 45, 46 and 47 all enable acts (or intended acts) outside England and Wales to be treated as if done (or intended to be done) in England or Wales. But those sections apply only for the purpose of determining whether an offence under section 42 has been committed. This section lays down a similar rule for certain related purposes, such as determining the punishments available for an offence under section 42 committed by virtue of section 43, 45, 46 or 47.

Section 49: Air Navigation Order offences

129.The Air Navigation Order, made under the Civil Aviation Act 1982, creates offences of misconduct on or in relation to civil aircraft. These offences do not apply to military aircraft.

130.This section enables the Secretary of State to designate particular offences created by the Air Navigation Order. In the case of any offence so designated, the rule that the offence can only be committed in relation to a civil aircraft is to be disregarded for the purposes of section 42. Any act done in relation to a military aircraft will thus be an offence under section 42 if, were the aircraft a civil aircraft, that act would be a designated offence. This is subject to the proviso that, as for any other offence under section 42, the offender must be either subject to service law or a civilian subject to service discipline. But a person in one of Her Majesty’s aircraft in flight, if he is not subject to service law, will necessarily be a civilian subject to service discipline under paragraph 1 of Schedule 15.

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