Explanatory Notes

Armed Forces Act 2006

2006 CHAPTER 52

8 November 2006


First Group of Parts – Discipline

Part 13 – Discipline: Miscellaneous and Supplementary
Chapter 2 – Contempt of Court

604.This Chapter enables service courts to deal with misbehaviour at court or in relation to proceedings before those courts. Such misbehaviour is otherwise known in civilian courts as contempt of court. In all cases the powers are exercised by the judge advocate.

605.The judge advocate’s powers are broadly the same as those of a magistrate in England and Wales under the Magistrates’ Courts Act 1980 and the Contempt of Court Act 1981. Existing powers under the SDAs are replaced with a single set of rules regardless of the rank or rate of the offender. In the UK, these powers may be exercised against any person; outside the UK they may be exercised only against persons subject to service law or civilians subject to service discipline.

606.If an offender is subject to service law, or a civilian subject to service discipline, the judge advocate may commit him to service custody. This punishment may be carried out at any service custody premises, including the MCTC. It is not a sentence of service detention, and so it will be administered by the MCTC in their remand wing where officers and civilians subject to service law may be held prior to their trial by the Court Martial.

607.Civilians who are not subject to service discipline under the Act may not be committed to service custody, but may instead be fined up to a maximum of level 4 on the standard scale (currently £2,500).

608.The powers provided in this Chapter are intended to deal with misbehaviour in the face of the court. Other acts that constitute contempt of court but which fall outside these powers may be referred to a civilian court under section 311.

Section 309: Offences of misbehaviour in court etc

609.Subsection (1) specifies the misbehaviour that constitutes the offence. This includes disruptive behaviour in court, failure of a party or witness to assist the court, and intimidation of witnesses or court members.

610.Subsections (2) and (3) specify the punishments which may be awarded (summarily) by the judge advocate.

611.Subsection (4) provides that the court may revoke an order committing the offender to service custody and, if he is already in custody, to discharge him. This allows the judge advocate to bring a punishment under this section to an end if the offender gives an appropriate apology.

612.Subsection (5) specifies the service courts that have jurisdiction under this section.

Section 310: Power to detain before dealing with section 309 offence

613.Subsection (1) gives the court power to order that an offender under section 309 should be taken into service custody and detained there until the court rises.

614.Subsections (2) and (3) provide that if the court considers that it should not exercise its powers under section 309 without a further hearing, then in certain circumstances the offender may be detained for a further period, provided that his total period of detention does not exceed 48 hours in total.

615.Subsection (4) specifies criteria, one or more of which must be met if a person is to be held in service custody after the court rises.

Section 311: Certification to civil courts

616.Subsection (1) provides that this section applies where a person does an act in relation to proceedings before a qualifying service court which would constitute contempt of court if the court were a civilian court with power to commit for contempt. This could include act which amounts to an offence under section 309, if the court chooses not to deal with the matter itself – because of the seriousness of the offence, for example.

617.In the above circumstances the service court may refer (“certify” is the term used in the Act) the offence to any civilian court which has power to commit for contempt, or, if the offence took place outside the UK, to the High Court. That civilian court may then inquire into the matter and deal with the offender under its own normal procedures. The Divisional Court of the Queen’s Bench Division, in the High Court, has a supervisory jurisdiction over inferior courts and in practice most serious forms of contempt will be referred to that court.

618.The power is similar to that provided for a number of other inferior courts and tribunals, for example the Data Protection Tribunal (section 6 of the Data Protection Act 1998).

Section 311: Decisions of court under section 309: making and effect

619.Subsection (1) provides that the rules relating to findings by the Court Martial and the SAC do not apply to this Chapter. Subsection (2) provides that the powers under sections 309 and 311 are to be exercised by the judge advocate alone.

620.Subsections (3) and (4) provide that the court may direct that a committal to service custody under section 309 shall take effect from the end of any period of service detention.

621.The section also provides that although committal to service custody is not service detention, certain of the rules relating to service detention can be applied in respect of such custody.