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Armed Forces Act 2006

Section 99: Authorisation by commanding officer of custody without charge

214.This section sets out the circumstances in which a person may be held in custody without charge: as with the current provisions it provides for authorisation of custody without charge by the CO.

215.When a person is arrested for a service offence a report must be given to the CO as soon as practicable. That report must state the fact of the arrest and any reasons for keeping the person in custody without charging him with a service offence. Until the report is made, the arrested person may be kept in service custody without charge if the person who made the arrest has reasonable grounds for believing that to do so is necessary to secure or preserve evidence relating to the service offence for which the person was arrested, or to obtain this evidence by questioning him.

216.When a CO receives the required report he must decide whether he has reasonable grounds for believing that keeping the arrested person in custody without charge is necessary to secure or preserve or obtain evidence relating to a service offence for which the person was arrested; and that the investigation into the alleged offence is being conducted diligently and expeditiously. If the CO is satisfied of these matters he must then decide whether to authorise the continued custody of the arrested person. If the CO does decide that keeping the arrested person in custody without charge is justified he may authorise continued detention for further 12 hour periods up to a maximum of 48 hours after the time of the arrest.

217.If a person who has been arrested for an offence (offence A) is kept in service custody without charge and is subsequently arrested for a further offence (offence B) the authorisation for custody in respect of offence A is terminated and the CO must go through the process again in relation to both offences A and B. Custody needs only to be justified in relation to one offence for an authorisation to be granted, but starting the process again avoids having multiple authorisations for custody in existence. Any authorisation for custody without charge is valid up to 48 hours from the time of the arrest for offence A.

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