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Armed Forces Act 2006

Custody after charge

230.This Chapter deals with post-charge custody, in which case an accused person is to be brought before a judge advocate as soon as practicable.

Section 105: Custody after charge

231.This section provides that an accused person must be brought before a judge advocate as soon as practicable (unless he is already in service custody for the purposes of serving a sentence or following a previous authorisation for custody by a judge advocate regarding another charge). At a hearing the judge advocate must decide whether the accused should be released (possibly subject to conditions) or be kept in service custody. The judge advocate is permitted to authorise keeping the accused in service custody only if at least one of the three conditions A to C set out in the following section is satisfied.

232.In deciding whether the conditions are met the judge advocate is under a duty to take into account any of the matters specified that he thinks are relevant to the accused’s case. If the judge advocate does consider that one or more of the conditions is met he may authorise keeping the accused in service custody for up to 8 days from the date of the hearing but this authorisation does not allow the accused to be kept in custody if he is subsequently released or sentenced.

233.If the judge advocate, having heard representations in respect of condition A in the following section, decides not to authorise the continued custody of the accused and the offence with which the accused is charged is murder, manslaughter, rape or attempted murder or rape, the judge advocate must state the reasons for his decision and ensure that they are properly recorded.

Section 106: Conditions A to D

234.This section sets out conditions A to C that the judge advocate must consider when deciding whether to authorise keeping the accused in custody under section 105; additionally there is a further condition D that applies when a judge advocate is considering whether to remand an accused into service custody during court proceedings.

Section 107: Release from custody after charge

235.This section provides for the situation where the judge advocate decides that custody is not appropriate, in which case the accused must be released; however, that release may be subject to conditions if the judge advocate considers them necessary for specified purposes. This is similar to the granting of conditional bail in the civilian system in England and Wales. If the judge advocate does impose conditions upon the release of the accused those conditions may be varied or removed after an application from the accused or his CO. If the accused has been released subject to conditions and then fails without a reasonable excuse to attend any hearing to which the condition relates, he has committed an offence and is liable to be punished with up to a maximum of 2 years’ imprisonment.

Section 108: Review of custody after charge

236.If a judge advocate has authorised custody a review must be carried out by a judge advocate (not necessarily the same one) no later than the end of the authorised period. However, if at any time the accused’s CO considers that the reasons for authorising custody have ceased to exist he is under a duty either to release the accused or request that a judge advocate reviews the matter, and such a review has to be done as soon as practicable.

237.When a judge advocate is conducting such a further review all of the provisions that apply to the initial review are operative except that if the accused is legally represented at a review hearing and gives his consent, the judge advocate may authorise up to 28 days in custody. At his first review hearing the accused is permitted to advance any argument of fact or law to support his application for release but at any further review hearings the judge advocate is not obliged to hear any such arguments that he has already heard.

Section 109: Custody during proceedings of Court Martial or Service Civilian Court

238.This section is concerned with keeping an accused in custody during proceedings before the Court Martial or the SCC. If a review under the previous section takes place after the accused has been arraigned before either court (i.e. the charges are put to him and he enters his plea of guilty or not guilty), but before the court’s proceedings have been concluded, the provisions that apply to the initial authorisation of custody are to apply with modifications. Those modifications are that, in addition to considering whether conditions A to C described above are met, the judge advocate now also considers condition D; and if the accused has pleaded or been found guilty but is awaiting sentence any references to the offence with which the accused has been charged are to be read as references to the offence for which the accused is waiting to be sentenced (and references to strength of evidence no longer apply).

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