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Armed Forces Act 2006

Section 380: Power to make transitional and transitory provision

758.Under this section the Secretary of State may make orders for transitional and transitory provisions in connection with bringing the Act into effect. The provisions may include ones saving provisions of repealed enactments, so that they are able to have a continuing effect in certain circumstances. A simple example of the sort of provision that may be needed would be to allow proceedings which have begun in accordance with procedures laid down in one of the current SDAs to continue on that basis after new procedures under the Act have been brought into force. The main provisions of this section are noted below.

759.Subsection (2) specifies some broad matters which may be provided for in orders under this section. These include provision for the continuation of proceedings that have begun before the commencement of the Act. Another provision specifically mentioned is for the punishments available for offences committed before commencement. Under the Act, for example, a Royal Navy CO will lose his power of summary dismissal. Under this section the Secretary of State will be able to provide by order about whether such a CO will retain that power in summary proceedings begun before the repeal of that power takes effect under the Act.

760.Orders under this section will also be able to give powers, functions and jurisdiction (subsection (3)). For example, the new SCC might be given jurisdiction over cases which immediately before commencement were within the jurisdiction of a Standing Civilian Court. Subsections (4) and (5) enable provisions of the Act and other enactments affected by it to apply on a transitional basis with specified modifications.

761.Subsection (6) deals with a particular transitional problem which arises from the fact that section 61 of the Criminal Justice and Court Services Act 2000 has been passed but has not yet been brought into force. That section, when brought into force, will reduce from 21 to 18 the minimum age at which an offender may be sentenced to imprisonment. The SDAs by contrast include provision for orders relating to imprisonment between the ages of 18 and 21. Section 208 of the Act reflects the minimum age of 18 and so does not deal with imprisonment between 18 and 21. If section 61 is still not in force on commencement of the relevant provisions of the Act, subsection (6) enables the power under subsection (4) to be used to provide for an alternative form of custodial sentence (e.g. by applying the SDA provisions with modifications).

762.Subsection (7) makes a safeguard as to the use of the powers in this section. It provides that an order under this section may not allow a more severe to be available for an offence than was available at the time the offence was committed.

763.Section 382 provides for the expiry of the SDAs not later than the end of 2011. Subsection (9) of this section provides for savings under this section to be unaffected by that expiry date.

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