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Armed Forces Act 2006

Powers of charging etc
Section 119: Circumstances in which CO has power to charge

258.This section specifies the circumstances in which a CO has “initial powers” (specified in section 120) in relation to a case. He has these powers if he becomes aware of anything indicating that someone in his command may have committed a service offence, unless broadly speaking the service police should be involved (under section 113 or 114), are already involved or (in the CO’s view) are likely to be involved by another police force.

259.The CO also has initial powers where a case is referred to him either by a service policeman under section 116 or by the DSP under section 121.

Section 120: Power of CO to charge etc

260.This section provides that the initial powers of a CO in respect of a case are to bring charges (but only charges which can be heard summarily under the Act) or to refer the case to the DSP. The charges capable of being heard summarily are defined in section 52. Two effects of that definition are that a CO has no power under this section to charge an officer above the rank of lieutenant-colonel (or equivalent rank in the Royal Navy or RAF), and no such power to charge a civilian subject to service discipline.

261.One effect of sections 119 and 120 taken together is that a CO cannot use initial powers to bring charges where the service police are, or should be, aware of the case, unless the case has been referred to the CO either by the service police or the DSP.

262.The section also empowers the Secretary of State to provide by regulations for circumstances in which, where a CO refers one case to the DSP, linked cases must also be treated as referred to the DSP.

263.Where a CO brings charges under this section, they are referred to in the Act as “allocated for summary hearing”.

Section 121: Power of DSP to direct bringing of charge etc

264.This section gives powers to the DSP where he has had a case referred to him by a service policeman (under section 116) or by a CO (under section 120). The powers are:

  • to direct a CO to bring specified charges

  • where he gives such a direction, to allocate the case for trial by the SCC if that court has jurisdiction

  • where he decides it would not be appropriate to give such a direction, to refer the case to the CO (in which event, under section 119 the CO has initial powers in relation to the case)

  • to give a direction (under section 127) barring further proceedings for an offence to which the case relates.

Section 122: Charges brought at direction of DSP

265.This section provides that a CO must bring any charge which he is directed to bring by the DSP under section 121. Unless the DSP allocates the charge to the SCC, the charge is to be regarded as allocated for trial by the Court Martial.

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