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Armed Forces Act 2006

Chapter 1 – Investigation

243.This Chapter imposes duties on COs with respect to the investigation of allegations of service offences, of circumstances which indicate that a service offence may have been committed and of other circumstances that may be prescribed.

244.It also imposes on members of the service police duties to refer certain cases to the Director of Service Prosecutions (the “DSP”) and certain other cases to a CO. Under Chapter 2 the DSP and the CO each have powers, for example as to the bringing of charges, in respect of cases referred to him under Chapter 1.

245.Some provisions of Part 5 refer to a CO. But the provisions are still capable of applying to civilians subject to service discipline, as a CO may be appointed in respect of such civilians under section 360. The provisions of Part 5 accordingly apply in relation to civilians, except as summarised in the Notes below.

Duties of commanding officers
Section 113: CO to ensure service police aware of possibility serious offence committed

246.Under this section, if a CO becomes aware of certain allegations or circumstances, he must ensure that the service police are aware of them. He may find that they are already aware, or he may need to inform them. He must do so as soon as is reasonably practicable. The duty applies to allegations or circumstances which would suggest to a reasonable person that someone (whether or not identified) within the CO’s command may have committed any service offence listed in Schedule 2. The service offences listed in that schedule are all inherently serious, in that it is difficult to envisage a trivial example of any of them.

247.The section gives the Secretary of State power by order to amend Schedule 2. Under section 373, an order under this section must be approved in draft by both Houses of Parliament.

Section 114: CO to ensure service police aware of certain circumstances

248.This section requires certain officers to ensure as soon as reasonably practicable that the service police are aware of certain circumstances. The Secretary of State may prescribe the circumstances, and the officers on whom the duty falls, in regulations. The circumstances which may be prescribed are not limited to where there is an indication that an offence has been committed.

Section 115: Duty of CO with respect to investigation of service offences

249.This section deals with situations (other than those in which a duty arises under section 113 or 114) in which a CO becomes aware of allegations or circumstances which would suggest to a reasonable person that someone within his command may have committed a service offence. In such cases the CO may ensure that, as soon as reasonably practicable, that the service police know of the matter. Alternatively he may ensure that the matter is appropriately investigated. An investigation other than by the service police will in many cases be appropriate, because service offences (defined in section 50) include all offences which may be committed by service personnel under the Act, including the less serious disciplinary offences.

Duty of service policeman following investigation
Section 116: Referral of case following investigation by service or civilian police

250.This section deals with the duties of the service police in relation to a case which they have investigated or which has been referred to them after an investigation by a UK police force (defined in section 375 as including civilian forces in the UK and the Isle of Man) or by an overseas police force (defined in section 375 to include foreign service and civilian forces).

251.Under subsection (2), where a service policeman considers that there is sufficient evidence to charge the person with a Schedule 2 offence (explained in the Note on section 113), he must refer the case to the DSP. The same duty arises where a service policeman considers there is sufficient evidence to charge any other service offence and he is aware of any circumstances prescribed in regulations (these might, for example, be aggravating circumstances).

252.Where the service policeman considers that there is sufficient evidence to charge the person with a service offence, but the circumstances do not require a reference to the DSP, he must refer the case to the person’s CO (subsection (3)).

253.Subsection (4) deals with cases where the matter has been referred to the service police either under section 113 (possibility of a Schedule 2 offence) or section 114 (existence of prescribed circumstances) and the service police propose not to refer the case to the DSP under subsection (2). This might be because they propose to refer the case to the CO or because they do not consider that any charge of a service offence should be brought. In those circumstances the service police must consult the DSP as soon as reasonably practicable and in any case before referring the case instead to the CO.

Section 117: Section 116: position where investigation is of multiple offences or offenders

254.This section applies where a case to which section 116 applies (one investigated by the service police or referred to them by another force) involves more than one incident or more than one suspect (or both).

255.The requirements of section 116 are to apply to each incident and each suspect as if they were separate cases. However the section also empowers the Secretary of State to provide by regulations for circumstances in which, where one case is referred to the DSP, linked cases must also be treated as referred to the DSP.

Section 118: Duty of service policeman to notify CO of referral to DSP

256.This section applies if under section 116(2) a service policeman refers a case about a person to the DSP. The service policeman must as soon as practicable notify the person’s CO of the referral. He must also provide the CO with any documents prescribed in regulation. The notification to the CO must state the service offence of which the service policeman considers there is sufficient evidence to charge the person and (if that offence is not one listed in Schedule 2) the circumstances prescribed in regulations which bring the cases within section 116(2). The policy intention is broadly to ensure that the CO is aware that a case about someone in his command has been referred to the DSP and that the CO is aware what the case is about, so that the CO can provide any relevant information about the person or the case to the DSP.

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