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Naval Discipline Act 1957

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Naval Discipline Act 1957

1957 CHAPTER 53 5 and 6 Eliz 2

F1An Act to make provision for the discipline of the Navy, and for other purposes connected with the Navy.

[31st July 1957]

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Amendments (Textual)

F1Act repealed (prosp.) by Armed Forces Act 2006 (c. 52), ss. 378, 383, Sch. 17 and the repeal being partly in force, as to which see individual provisions

Modifications etc. (not altering text)

C1Act amended (women's services) by Armed Forces Act 1981 (c. 55), Sch. 3 Pt. I para.1; restricted by Acts listed in Chronological Table of the Statutes, Belize Act 1981 (c. 52), Sch. 2 para. 1 and S.I. 1981/1105, Sch. para. 2(a)

Act amended (N.I.) (25.8.1996) by 1996 c. 22, ss. 54(7)(b), 62(1) (which temporary amending provision of s. 54 expires (subject to savings as mentioned in s. 62(3)) on 15.6.1997 as mentioned in s. 62(2) of the amending Act

Act amended (9.11.1998) by 1998 c. 42, ss. 21(5), 22(2) (with ss. 7(8), 22(5))

C2Act extended by S.I. 1972/971, art. 4, Sch. 1

Act extended (1.4.1997) by 1996 c. 14, s. 103; S.I. 1997/305, art. 2

C3Power to continue Act conferred by Armed Forces Act 1986 (c. 21, SIF 7:1), s. 1(2)

Power to continue Act conferred (25.7.1991) by Armed Forces Act 1991 (c. 62), s. 1(2)-(4)

Power to continue Act conferred (24.7.1996) by 1996 c. 46, ss. 1(2)(3), 36(3)

Power to continue Act conferred (11.5.2001) by 2001 c. 19, ss. 1(1)(3), 39(3)(a)

Power to continue Act conferred (8.11.2006) by Armed Forces Act 2006 (c. 52), ss. {382}, 383(1)

C4Power to amend Act conferred by Criminal Justice Act 1988 (c. 33, SIF 39:1), s. 50(3)(a)(iii)

Power to amend Act conferred (25.8.2006) by 2001 c. 19, ss. 30(4)(e), 39(2); S.I. 2006/2309, art. 2(b)

Power to amend Act conferred (4.6.2007) by Armed Forces Act 2006 (c. 52), ss. 381, 383; S.I. 2007/1442, art. 2(2)

C5By Criminal Justice Act 1988 (c. 33, SIF 39:1), s. 123, Sch. 8 Pt. I paras. 1, 2 it is provided that in certain enactments including this Act for a reference to a detention centre or to a youth custody centre or to both there shall be substituted a reference to a young offender institution and for a reference (however expressed) to a detention centre order or to a sentence of youth custody or to both there shall be substituted a reference to a sentence of detention in a young offender institution

C6By Criminal Justice Act 1991 (c. 53, SIF 39:1), s. 101(1), Sch. 12 para. 23; S.I. 1991/2208, art. 2(1), Sch. 1 it is provided (14.10.1991) that in relation to any time before the commencement of s. 70 of that 1991 Act (which came into force on 1.10.1992 by S.I. 1992/333, art. 2(2), Sch. 2) references in any enactment amended by that 1991 Act, to youth courts shall be construed as references to juvenile courts.

C7Act continued in force until 31.8.1987 by virtue of 1986 c. 21, s. 1(1)

Act continued in force for a period of 12 months beyond 31.8.1987 by S.I. 1987/1262, art. 1

Act continued in force for a period of 12 months beyond 31.8.1988 by S.I. 1988/1293, art. 1

Act continued in force for a period of 12 months beyond 31.8.1989 by S.I. 1989/1328, art. 1

Act continued in force for a period of twelve months beyond 31.8.1990 by S.I. 1990/1501, art. 1

Act continued in force (24.7.1991) until 31.12.1991 by S.I. 1991/1696, art. 1.

Act continued in force (25.7.1991) until 31.8.1992 by Armed Forces Act 1991 (c. 62), s. 1(1).

Act continued in force for a period of twelve months beyond 31.8.1992 by S.I. 1992/1712, art. 1.

Act continued in force for a period of twelve months beyond 31.8.1993 by S.I. 1993/1804, art. 1.

Act continued in force for a period of twelve months beyond 31.8.1994 by S.I. 1994/1903, art. 1

Act continued in force for a period of twelve months (beginning on the day following 31.8.1995) by S.I. 1995/1964, art. 1

Act continued in force (24.7.1996) until 31.8.1997 by 1996 c. 46, ss. 1(1), 36(3)

Act continued in force for a period of twelve months (beginning on the day following 31.8.1997) by S.I. 1997/1745, art. 2

Act continued in force for a period of twelve months (beginning on the day following 31.8.1998) by S.I. 1998/1499, art. 2

Act continued in force for a period of twelve months (beginning on the day following 31.8.1999) by S.I. 1999/1734, art. 2

Act continued in force for a period of twelve months (beginning on the day following 31.8.2000) by S.I. 2000/1814, art. 2

Act continued in force (11.5.2001) until 31.8.2002 by 2001 c. 19, s. 1(1), 39(3)

Act continued in force for a period of twelve months (beginning on the day following 31.8.2002) by S.I. 2002/1820, art. 2

C8Act applied (1.6.1996) by Armed Forces Act 1991 (c. 62), ss. 18(8), 20(9), 27(2); S.I. 1996/1173, art. 2

Act applied (with modifications) (prosp.) by Courts-Marshal (Appeals) Act 1968 c. 20, s. 16 as substituted (prosp.) by 1996 c. 46, ss. 8, 36(2), Sch. 2 para. 6 (which said Sch. 2 was repealed (31.3.2005) by Domestic Violence, Crime and Victims Act 2004 (c. 28), s. 58(2), Sch. 11; S.I. 2005/579, art. 3(i)(ix))

Act applied (with modifications) (prosp.) by Courts-Marshal (Appeals) Act 1968 c. 20, s. 23 as substituted (prosp.) by 1996 c. 46, ss. 8, 36(2), Sch. 2 para. 9 (which said Sch. 2 was repealed (31.3.2005) by Domestic Violence, Crime and Victims Act 2004 (c. 28), s. 58(2), Sch. 11; S.I. 2005/579, art. 3(i)(ix))

Act applied (prosp.) by definition of "guardianship order" in 1968 c. 20, s. 57(1) (as substituted (prosp.) by 1996 c. 46, ss. 8, 36(2), Sch. 2 para. 12(2)(e)) (which said Sch. 2 was repealed (31.3.2005) by Domestic Violence, Crime and Victims Act 2004 (c. 28), s. 58(2), Sch. 11; S.I. 2005/579, art. 3(i)(ix))

C9Act continued in force for a period of 12 months (beginning on the day following 31.8.2003) by The Army, Air Force and Naval Discipline Acts (Continuation) Order 2003 (S.I. 2003/1869), art. 2

Act continued in force for a period of 12 months (beginning on the day following 31.8.2004) by The Army, Air Force and Naval Discipline Acts (Continuation) Order 2004 (S.I. 2004/1496), art. 2

Act continued in force for a period of 12 months (beginning on the day following 31.8.2005) by The Army, Air Force and Naval Discipline Acts (Continuation) Order 2005 (S.I. 2005/2021) {art. 2}

Act continued in force until 31.12.2006 by The Army, Air Force and Naval Discipline Acts (Continuation) Order 2006 (S.I. 2006/1910), art. 2

C10Act continued in force until the end of one year beginning with 8.11.2006 by virtue of Armed Forces Act 2006 (c. 52), ss. 382(2), 383 (subject to s. 382(3)) (with s. 382(6))

Part IE+W+S+N.I. Articles of war

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Modifications etc. (not altering text)

Public worshipE+W+S+N.I.

1 Public worship to be performed.E+W+S+N.I.

All officers in command of Her Majesty’s ships shall cause public worship of Almighty God to be solemnly, orderly and reverently performed in their respective ships, and shall take care that prayers and preaching, by the chaplains of those ships, be performed diligently and that the Lord’s Day be observed.

Misconduct in action and other offences arising out of naval serviceE+W+S+N.I.

[F22 Misconduct in action.E+W+S+N.I.
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Amendments (Textual)

(1)A person subject to this Act shall be guilty of an offence against this section if, without lawful excuse, he—

(a)surrenders any place or thing to the enemy, or

(b)abandons any place or thing which it is his duty to defend against the enemy or to prevent from falling into the hands of the enemy.

(2)A person subject to this Act shall be guilty of an offence against this section if, being in the presence or vicinity of the enemy, or being engaged in any action or operation against the enemy or under orders to be prepared for any action or operation by or against the enemy, he—

(a)fails to use his utmost exertions to carry the lawful orders of his superior officers into execution, or

(b)while on guard duty and posted or ordered to patrol, or while on watch, sleeps or, without having been regularly relieved, leaves any place where it is his duty to be, or

(c)behaves in such a manner as to show cowardice, or induces any other person so to behave at a time when that other person, being a member of Her Majesty’s forces or of a force co-operating with Her Majesty’s forces, is in the presence or vicinity of the enemy, or is engaged in any action or operation against the enemy or under orders to be prepared for any action or operation by or against the enemy, or

(d)uses words likely to cause despondency or unnecessary alarm.

(3)A person guilty of an offence against this section shall be [F3liable to imprisonment or any less punishment authorised by this Act]]

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Amendments (Textual)

F3Words in s. 2(3) substituted (11.5.2001) for s. 2(3)(a)(b) and the preceding word “liable” by 2001 c. 19, ss. 34, 39(3)(f), Sch. 6 Pt. 4 para. 19

3 Assisting the enemy.E+W+S+N.I.

(1)A person subject to this Act shall be guilty of an offence against this section if, knowingly and without lawful excuse, he—

(a)communicates with, or gives intelligence to, the enemy, or

(b)fails to make known to the proper authorities any information received by him from the enemy, or

(c)furnishes the enemy with supplies of any description, or

(d)having been captured by the enemy, serves with or aids the enemy in the prosecution of hostilities or of measures likely to influence morale, or in any other manner whatsoever not authorised by international usage, or

(e)having been captured by the enemy, fails to take, or prevents or discourages any other person subject to service law who has been captured by the enemy from taking, any reasonable steps to rejoin Her Majesty’s service which are available to him or, as the case may be, to that other person, or

(f)harbours or protects an enemy not being a prisoner of war.

(2)A person guilty of an offence against this section shall be [F4liable to imprisonment or any less punishment authorised by this Act]

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Amendments (Textual)

F4Words in s. 3(2) substituted (11.5.2001) for s. 3(2)(a)(b) and the preceding word “liable” by 2001 c. 19, ss. 34, 39(3)(f), Sch. 6 Pt. 4 para. 20

4 Obstructing operations, giving false air signals, etc.E+W+S+N.I.

(1)A person subject to this Act shall be guilty of an offence against this section if he does any act likely to imperil the success of any action or operation on the part of any of Her Majesty’s forces, or wilfully delays or discourages upon any pretext whatsoever any such action or operation.

(2)A person subject to this Act shall be guilty of an offence against this section if, knowingly and without lawful excuse, he gives any false air signal, or alters or interferes with any air signal or any apparatus for giving an air signal.

(3)A person guilty of an offence against this section shall be [F5liable to imprisonment or any less punishment authorised by this Act]

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Amendments (Textual)

F5Words in s. 4(3) substituted (11.5.2001) for s. 4(3)(a)(b) and the preceding word “liable” by 2001 c. 19, ss. 34, 39(3)(f), Sch. 6 Pt. 4 para. 21

[F65 Looting. E+W+S+N.I.
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Amendments (Textual)

Any person subject to this Act who—

(a)steals from, or with intent to steal searches, the person of anyone killed, wounded or captured in the course of warlike operations, or killed, injured or detained in the course of operations undertaken by Her Majesty’s forces for the preservation of law and order or otherwise in aid of the civil authorities, or

(b)steals any property which has been left exposed or unprotected in consequence of any such operations as are mentioned in paragraph (a) above, or

(c)takes otherwise than for the public service any vehicle, equipment or stores abandoned by the enemy,

shall be guilty of looting and liable to imprisonment or any less punishment authorised by this Act.]

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Modifications etc. (not altering text)

[F76 Offences by or in relation to sentries, persons on watch etc.E+W+S+N.I.
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Amendments (Textual)

Any person subject to this Act who—

(a)while on guard duty and posted or ordered to patrol, or on watch, or under orders to regulate traffic by land, water or air, sleeps or, without having been regularly relieved, leaves any place where it is his duty to be, or

(b) . . . F8 uses force against a member of Her Majesty’s forces, or of any forces co-operating therewith, who is on guard duty and posted or ordered to patrol, or on watch, or under orders to regulate traffic by land, water or air, or

(c)by the threat of force compels any such person as is mentioned in paragraph (b) above to let him or any other person pass,

shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.]

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Amendments (Textual)

[F97 Failure to attend for duty, neglect of duty etc.E+W+S+N.I.
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Amendments (Textual)

Any person subject to this Act who—

(a)without reasonable excuse fails to attend for any duty of any description, or leaves any such duty before he is permitted to do so, or

(b)neglects to perform, or negligently performs, any duty of any description,

shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.]

MutinyE+W+S+N.I.

8 Definition of “mutiny”.E+W+S+N.I.

In this Act “mutiny” means a combination between two or more persons subject to service law, or between persons two at least of whom are subject to service law,—

(a)to overthrow or resist lawful authority in Her Majesty’s forces or any forces co-operating therewith, or in any part of any of the said forces;

(b)to disobey such authority in such circumstances as to make the disobedience subversive of discipline, or with the object of avoiding any duty or service against, or in connection with operations against, the enemy; or

(c)to impede the performance of any duty or service in Her Majesty’s forces or in any forces co-operating therewith, or in any part of any of the said forces;

and “service law” means this Act, military law or air force law.

9 Offences of mutiny.E+W+S+N.I.

F10(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)Every person subject to this Act who takes part in a mutiny F11. . ., or incites any other person subject to service law to take part in such a mutiny, whether actual or intended, shall be liable to imprisonment . . . F12 or any less punishment authorised by this Act.

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Amendments (Textual)

F10S. 9(1) repealed (11.5.2001) by 2001 c. 19, ss. 38, 39(3)(g), Sch. 7 Pt. 4

F11Words in s. 9(2) repealed (11.5.2001) by 2001 c. 19, ss. 38, 39(3)(g), Sch. 7 Pt. 4

10 Failure to suppress mutiny.E+W+S+N.I.

Every person subject to this Act who, knowing that a mutiny is taking place or is intended,—

(a)fails to use his utmost endeavours to suppress or prevent it; or

(b)fails to report without delay that the mutiny is taking place or is intended,

shall be liable F13. . . to imprisonment . . . F14 or any less punishment so authorised.

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Amendments (Textual)

F13Words in s. 10 repealed (11.5.2001) by 2001 c. 19, ss. 38, 39(3)(g), Sch. 7 Pt. 4

Insubordination and similar offencesE+W+S+N.I.

[F1511 Insubordinate behaviour.E+W+S+N.I.
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Amendments (Textual)

Every person subject to this Act who—

(a) . . . F16 uses violence to, or offers violence to, his superior officer, or

(b)uses threatening or insubordinate language to, or behaves with contempt to, his superior officer,

shall be liable to imprisonment or any less punishment authorised by this Act:

Provided that it shall be a defence for any person charged under this section, to prove that he neither knew nor had reasonable cause to believe that the person in relation to whom the offence is alleged to have been committed was his superior officer.]

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Amendments (Textual)

12 Disobedience to lawful commands.E+W+S+N.I.

Any person subject to this Act who, whether wilfully or through neglect, disobeys any lawful command (by whatever means communicated to him) shall be liable to imprisonment or any less punishment authorised by this Act.

[F1712A Failure to provide a sample for drug testing.E+W+S+N.I.
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Amendments (Textual)

F17S. 12A inserted (1.10.1996 with savings) by 1996 c. 46, s. 32(3); S.I. 1996/2474, art. 2 (with art. 3)

(1)Any person subject to this Act who, when requested to do so by a drug testing officer, fails to provide a sample of his urine for [F18the purpose of ascertaining whether, or to what extent, he has, or has had, drugs in his body] shall,F19... , be liable to imprisonment for a term not exceeding six months or any less punishment provided by this Act.

[F20(1A)A drug testing officer may not request a person to provide a sample under subsection (1) above if—

(a)he is that person’s commanding officer, or

(b)the commanding officer of that person is his commanding officer.

(1B)A request under subsection (1) above may not be made if the sample is sought in connection with—

(a)an investigation under this Act of an offence, or

(b)an investigation of such an incident as is referred to in section 32(1)(a) of the Armed Forces Act 2001 (powers to test for alcohol or drugs after serious incident).

(1C)The results of tests performed on a sample provided by a person at the request of a drugs testing officer shall not be admissible in evidence against—

(a)that person, or

(b)any other person,

in proceedings before a court-martial, commanding officer or appropriate superior authority.

(1D)Nothing in this section—

(a)limits the powers conferred by—

[F21(i)any provision of the Road Traffic Act 1988 (c. 52),]

F21(ii)sections 62 and 63 of the Police and Criminal Evidence Act 1984 (intimate and other samples), as applied by order under section 113(1) of that Act; or

(b)affects the admissibility in any proceedings of evidence obtained under those powers.]

(2)For the purposes of this section—

  • drug” means any drug which is a controlled drug for the purposes of the Misuse of Drugs Act 1971; and

  • drug testing officer” means an officer, warrant officer [F22, chief petty officer, petty officer or leading rating] who is authorised by or in accordance with Queen’s Regulations for the purpose of supervising the conduct of tests for the presence of drugs.]

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Amendments (Textual)

F18Words in s. 12A(1) substituted (3.2.2006) by 2001 c. 19, ss. 32(9), 39(2), Sch. 5 para. 5(2)(a); S.I. 2006/235, art. 2 (with art. 3)

F19Words in s. 12A(1) omitted (28.2.2002) by virtue of 2001 c. 19, ss. 32(9), 39(2), Sch. 5 para. 5(2)(b) and repealed (prosp.) by 2001 c. 19, s. 38, Sch. 7 Pt. 7; S.I. 2002/345, art. 2 (subject to art. 3)

F22S. 12A(2): words in the definition of "drug testing officer" substituted (28.2.2002) by 2001 c. 19, s. 32(9), Sch. 5 para. 5(4); S.I. 2002/345, art. 2 (subject to art. 3)

[F2312B Failure to provide sample after serious incidentE+W+S+N.I.
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Amendments (Textual)

Any person subject to this Act who, without reasonable excuse, fails to comply with a request made under subsection (3) or (4) of section 32 of the Armed Forces Act 2001 (powers to test for alcohol or drugs after serious incident) shall be guilty of an offence and shall be liable to imprisonment for a term not exceeding six months or any less punishment provided by this Act.]

13 Fighting and quarrelling.E+W+S+N.I.

Every person subject to this Act who [F24without reasonable excuse]

(a)fights . . . F25 with any other person, whether subject to this Act or not; or

(b)uses threatening, abusive, insulting or provocative words or behaviour likely to cause a disturbance,

shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.

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Amendments (Textual)

14 Obstruction of provost officers.E+W+S+N.I.

Every person subject to this Act who . . . F26 obstructs, or . . . F26 refuses, when called on, to assist, any provost officer, or any person (whether subject to this Act or not) legally exercising authority under or on behalf of a provost officer, shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act:

[F27Provided that it shall be a defence for any person charged under this section to prove that he neither knew nor had reasonable cause to believe that the person in relation to whom the offence is alleged to have been committed was a provost officer or, as the case may be, a person legally exercising authority under or on behalf of a provost officer.]

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Amendments (Textual)

[F2814A Disobedience to standing orders.E+W+S+N.I.
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Amendments (Textual)

(1)Every person subject to this Act who contravenes or fails to comply with any provision of orders to which this section applies, being a provision known to him or which he might reasonably be expected to know, shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.

(2)This section applies to standing orders or other routine orders of a continuing nature made for any formation or unit or body of Her Majesty’s forces, or for any command or other area, garrison or place, or for any ship, vessel, train or aircraft.]

Desertion and absence without leaveE+W+S+N.I.

[F2915 Definition of “desertion”.E+W+S+N.I.
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Amendments (Textual)

A person is guilty of desertion within the meaning of this Act if he—

(a)leaves or fails to attend at his unit, ship or place of duty with the intention of remaining permanently absent from duty without lawful authority, or, having left or failed to attend at his unit, ship or place of duty, thereafter forms the like intention, or

(b)absents himself without leave with intent to avoid serving at any place overseas, or to avoid service or any particular service when before the enemy.]

16 Offences of desertion.E+W+S+N.I.

(1)Every person subject to this Act who deserts shall be liable to imprisonment . . . F30 or any less punishment authorised by this Act.

(2)A person convicted of desertion shall, except so far as the court or officer by whom he is tried or [F31the Defence Council] may otherwise direct, forfeit all pay, bounty, salvage and allowances earned by him, all annuities, pensions and gratuities granted to him, and all clothes and effects left by him on board his ship or at his place of duty.

(3) . . . F32

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Amendments (Textual)

F31Words substituted by S.I. 1964/488, Sch. 1 Pt. I

17 Absence without leave etc.E+W+S+N.I.

(1)Every person subject to this Act who, . . . F33,—

(a)absents himself without leave; or

(b)improperly leaves his ship . . . F33,

shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act, and to such other punishment by way of forfeiture of pay or other benefits as may be prescribed by regulations made by [F34the Defence Council.]

(2) . . . F35

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Amendments (Textual)

F34Words substituted by S.I. 1964/488, Sch. 1 Pt. I

18 Failure to report deserters and absentees.E+W+S+N.I.

Every person subject to this Act who, knowing that any other person subject thereto [F36has committed an offence, or is attempting to commit an offence, under section 16(1) or section 17(1) of this Act],—

(a)fails to report the fact without delay; or

(b)fails to take any steps within his power to cause that person to be apprehended,

shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.

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Amendments (Textual)

Navigation and flying offencesE+W+S+N.I.

19 Loss or hazarding of ship or aircraft.E+W+S+N.I.

Every person subject to this Act who, either wilfully or by negligence—

(a)causes or allows to be lost, stranded or hazarded any of Her Majesty’s ships or vessels; . . . F37

(b) . . . F38

shall be liable, if he acts wilfully or with wilful neglect, to imprisonment . . . F39 or any less punishment authorised by this Act, and in any other case to imprisonment for a term not exceeding two years or any less punishment so authorised.

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Amendments (Textual)

20 Dangerous flying, etc.E+W+S+N.I.

Every person subject to this Act who is guilty of any act or neglect in flying, or in the use of any aircraft, or in relation to any aircraft or aircraft material, which causes or is likely to cause loss of life or bodily injury to any person shall be liable—

(a)if he acts wilfully or with wilful neglect, to imprisonment . . . F40 or any less punishment authorised by this Act;

(b)in any other case, to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.

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Amendments (Textual)

21 Low flying.E+W+S+N.I.

Every person subject to this Act who, being the pilot of one of Her Majesty’s aircraft, flies it at a height less than such height as may be provided by any regulations issued under the authority of [F41the Defence Council], . . . F42, except—

(a)while taking off or alighting; or

(b)in such other circumstances as may be so provided,

shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.

[F43Provided that where a pilot flies an aircraft in contravention of this section on the orders of some other person who is in command of the aircraft, that other person shall be treated for the purposes of this section as having been the pilot of, and flying, the aircraft at the material time.]

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Amendments (Textual)

F41Words substituted by S.I. 1964/488, Sch. 1 Pt. I

F42Words repealed by S.I. 1964/488, Sch. 1 Pt. I

22 Annoyance by flying.E+W+S+N.I.

Every person subject to this Act who, being the pilot of one of Her Majesty’s aircraft, flies it so as to cause, or to be likely to cause, unnecessary annoyance to any person shall be liable to dismissal from Her Majesty’s Service or any less punishment authorised by this Act.

[F44Provided that where a pilot flies an aircraft in contravention of this section on the orders of some other person who is in command of the aircraft, that other person shall be treated for the purposes of this section as having been the pilot of, and flying, the aircraft at the material time.]

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Amendments (Textual)

Prize offencesE+W+S+N.I.

23 Prize offences by commanding officers.E+W+S+N.I.

Every person subject to this Act who, being in command of any of Her Majesty’s ships, vessels or aircraft,—

(a)having taken any ship, vessel or aircraft as prize, fails to send to the High Court, or to some other prize court having jurisdiction in the case, all the ship papers or aircraft papers, as the case may be, found on board;

(b)unlawfully makes any agreement for the ransoming of any ship, vessel, aircraft or goods taken as prize; or

(c)in pursuance of any such agreement as aforesaid, or otherwise by collusion, restores or abandons any ship, vessel, aircraft or goods taken as prize,

shall be liable to [F45imprisonment for a term not exceeding two years] or any less punishment authorised by this Act.

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Amendments (Textual)

24 Other prize offences.E+W+S+N.I.

Every person subject to this Act who—

(a) . . . F46 ill-treats any person who is on board a ship, vessel or aircraft when taken as prize, or unlawfully takes from any such person anything in his possession;

(b)removes out of any ship, vessel or aircraft taken as prize (otherwise than for safe keeping or for the necessary use and service of any of Her Majesty’s forces [F47or any forces co-operating therewith]) any goods not previously adjudged by a prize court to be lawful prize; or

(c)breaks bulk on board any ship, vessel or aircraft taken as prize, or detained in exercise of any belligerent right or under any enactment, with intent to [F48steal] anything therein,

shall be liable to [F49imprisonment for a term not exceeding two years] or any less punishment authorised by this Act.

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Amendments (Textual)

F48Word substituted by Armed Forces Act 1981 (c. 55), s. 15 except as to an offence alleged to have been committed before 1.5.1982

Other offences in respect of ships and aircraftE+W+S+N.I.

25 Inaccurate certification.E+W+S+N.I.

Every person subject to this Act who makes or signs, without having ensured its accuracy,—

(a)a certificate relating to any matter affecting the seagoing or fighting efficiency of any of Her Majesty’s ships or vessels; or

(b)any certificate relating to any of Her Majesty’s aircraft or aircraft material,

shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.

26. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F50E+W+S+N.I.
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Amendments (Textual)

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Amendments (Textual)

Malingering and drunkennessE+W+S+N.I.

27 Malingering.E+W+S+N.I.

(1)A person is guilty of malingering within the meaning of this section if he falsely pretends to be suffering from sickness or disability, if he injures himself with intent thereby to render himself unfit for service, or causes himself to be injured by any person with that intent, [F51if he injures another person subject to service law at the instance of that other person and with intent thereby to render that other person unfit for service] or if, with intent to render or keep himself unfit for service, he does or fails to do anything (whether at the time of the act or omission he is in hospital or not) whereby he produces, or prolongs or aggravates, any sickness or disability; and for the purposes of this subsection the expression “unfit” includes temporarily unfit.

(2)Every person subject to this Act who malingers shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.

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Amendments (Textual)

28 Drunkenness.E+W+S+N.I.

(1)A person is drunk within the meaning of this section if owing to the influence of alcohol or any drug, whether alone or in combination with any other circumstances, he is unfit to be entrusted with his duty or with any duty which he might [F52reasonably expect to] be called upon to perform, or behaves in a disorderly manner or in a manner likely to bring discredit on Her Majesty’s service.

(2)Every person subject to this Act who is drunk, whether on duty or not, shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.

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Amendments (Textual)

Offences relating to propertyE+W+S+N.I.

[F5329 Damage to, and loss of, public or service property etc.E+W+S+N.I.
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Amendments (Textual)

(1)Any person subject to this Act who—

(a)wilfully damages or causes the loss of, or is concerned in the wilful damage or loss of, any public or service property, or any property belonging to another person so subject, or

(b)by wilful neglect causes or allows damage to, or the loss of, any public or service property or property so belonging,

shall be liable to imprisonment or any less punishment authorised by this Act.

(2)Any person subject to this Act who—

(a)by any negligent act or omission causes or allows damage to, or the loss of, any public or service property, or

(b)is guilty of any wilful or negligent act or omission which is likely to cause damage to, or the loss of, any such property,

shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.]

29A Damage to, and loss of, Her Majesty’s aircraft or aircraft material.E+W+S+N.I.

(1)Without prejudice to the generality of section 29 above, a person subject to this Act shall be guilty of an offence against this section if he—

(a)wilfully damages or causes the loss of, or is concerned in the wilful damage or loss of, any of Her Majesty’s aircraft or aircraft material, or

(b)by wilful neglect causes or allows damage to, or the loss of, any of Her Majesty’s aircraft or aircraft material, or

(c)without lawful authority disposes of any of Her Majesty’s aircraft or aircraft material, or

(d)by any negligent act or omission causes or allows damage to, or the loss of, any of Her Majesty’s aircraft or aircraft material, or

(e)is guilty of any wilful or negligent act or omission which is likely to cause damage to, or the loss of, any of Her Majesty’s aircraft or aircraft material, or

(f)during a state of war, wilfully and without proper occasion, or negligently, causes the sequestration by or under the authority of a neutral state, or the destruction in a neutral state, of any of Her Majesty’s aircraft.

(2)A person guilty of an offence against this section shall be liable—

(a)if his offence consisted in an act or omission falling within paragraph (a), (b) or (c) of subsection (1), or if it consisted in an act or omission falling within paragraph (f) of that subsection and it is proved that he acted wilfully or with wilful neglect, to imprisonment or any less punishment authorised by this Act;

(b)in any other case, to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.

[F5429B Interference etc. with equipment, messages or signals.E+W+S+N.I.
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Amendments (Textual)

(1)Any person subject to this Act who by any conduct of his—

(a)intentionally impairs the efficiency or effectiveness of any equipment which is public or service property; or

(b)intentionally interferes with or modifies any message or other signal which is being transmitted, by means of [F55an electronic communications network]F55 , directly or indirectly to or from any such equipment,

shall be liable to imprisonment or any less punishment authorised by this Act.

(2)Any person subject to this Act who is guilty of any conduct which is likely to have the effect—

(a)of impairing the efficiency or effectiveness of any such equipment; or

(b)of interfering with or modifying any such message or signal,

shall (whether or not that conduct has that effect) be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.

(3)It shall be a defence for a person charged with an offence under subsection (2) of this section in respect of any conduct likely to have a particular effect that, in the circumstances, his conduct was in all respects consistent with the exercise of reasonable care to avoid producing that effect.

(4)For the purposes of this section the efficiency or effectiveness of any equipment is impaired if, whether or not it is damaged, the equipment is made temporarily or permanently less efficient or effective either for all purposes or for a particular purpose for which it has been designed, adapted, adjusted or programmed.

(5)in this section—

  • conduct” includes any act or omission;

  • equipment” includes any apparatus, any computer and any vessel, aircraft or vehicle; [F56F56...and]F56...

  • [F56telecommunication system” has the same meaning as in the Telecommunications Act 1984.F56]]

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Amendments (Textual)

F55Words in s. 29B(1)(b) substituted (25.7.2003 for specified purposes and 29.12.2003 for specified purposes) by Communications Act 2003 (c. 21), ss. 406, 411(2), Sch. 17 para. 26 (with transitional provisions in Sch. 18); S.I. 2003/1900, art. 1(2), 2(1), Sch. 1 (with transitional provisions in arts. 3-6 (as amended by S.I. 2003/3142, art. 1(3)) and S.I. 2003/3142, art. 3(2) (with art. 11)

F56S. 29B(5): definition of "telecommunication system" and preceding word repealed (25.7.2003 for specified purposes and 29.12.2003 for specified purposes) by Communications Act 2003 (c. 21), ss. 406, 411(2), Sch. 19 (with transitional provisions in Sch. 18); S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with transitional provisions in arts. 3-6 (as amended by S.I. 2003/3142, art. 1(3)) and S.I. 2003/3142, art. 3(2) (with art. 11)

30 Misapplication and waste of public or service property. E+W+S+N.I.
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Modifications etc. (not altering text)

Any person subject to this Act who misapplies or wastefully expends any public or service property shall be liable to imprisonment for a term not exceeding two years or any less punishment provided by this Act.

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Modifications etc. (not altering text)

31 Offences relating to issues and decorations. E+W+S+N.I.
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Modifications etc. (not altering text)

(1)Every person subject to this Act who makes away with (whether by pawning, selling, destroying or in any other way), or loses or by negligence damages or allows to be damaged—

(a)any clothing, arms, ammunition or other equipment issued to him for his use for naval purposes; or

(b)any naval, military or air force decoration granted to him,

shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.

(2)It shall be a defence for a person charged under this section with losing any property that he took reasonable steps for its care and preservation.

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Modifications etc. (not altering text)

Offences relating to billeting and requisitioning of vehicles, etc.E+W+S+N.I.

32 Billeting offences.E+W+S+N.I.

Every person subject to this Act who—

(a)knowing that no billeting requisition [F57issued under section 67(1) of the M1Armed Forces Act 1971], is in force authorising him to demand any billets, or that he is otherwise not authorised to demand them, obtains those billets or orders or procures another person to obtain them;

(b)takes or agrees to take, or demands, from a person on whom he or any other person or any vehicle is or is to be billeted in pursuance of such a requisition any money or thing as consideration for not requiring, or ceasing to require, accommodation for himself or the said other person or standing room for the vehicle; or

(c)wilfully or by wilful neglect destroys or damages, or causes or allows to be destroyed or damaged, any premises in which he is billeted in pursuance of such a requisition, or any property being in such premises,

shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.

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Amendments (Textual)

Marginal Citations

33 Offences in relation to requisitioning of vehicles, etc.E+W+S+N.I.

(1)Every person subject to this Act who—

(a)knowing that no requisitioning order [F58issued under section 67(1) of the M2Armed Forces Act 1971], is in force authorising him to give directions for the provision of any vehicle, or that he is otherwise not authorised to give such directions, gives directions for the provision of the vehicle or orders or procures another person to give such directions;

(b)in purported exercise of powers conferred by such a requisitioning order takes, or orders or procures any other person to take, possession of a vehicle, knowing that no such requisition order is in force under which the taking possession of the vehicle could be authorised, or that the taking possession thereof is otherwise not authorised under such an order; or

(c)takes or agrees to take, or demands, from any person any money or thing as consideration for directions, or any particular directions, for the provision of a vehicle not being given, or possession of a vehicle not being taken, or not being retained, under such a requisitioning order,

shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.

(2)Subsection (1) of this section shall apply in relation to horses, mules, food and forage, and in relation to other chattels required—

(a)for vehicles, horses or mules furnished or to be furnished in pursuance of a requisitioning order [F58issued under section 67(1) of the M3Armed Forces Act 1971], or for use in connection with such vehicles, horses or mules; or

(b)for persons or vehicles billeted in pursuance of a billeting requisition issued as aforesaid, or otherwise temporarily accommodated or to be so accommodated, or for use in connection with such persons or vehicles,

as it applies in relation to vehicles.

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Amendments (Textual)

Marginal Citations

Offences relating to, and by, persons in custody [F5933A.E+W+S+N.I.

33A Permitting escape, and unlawful release of prisoners.E+W+S+N.I.

(1)Every person subject to this Act who wilfully allows to escape any person who is committed to his charge, or whom it is his duty to guard, shall be liable to imprisonment or any less punishment authorised by this Act.

(2)Every person subject to this Act who—

(a)without proper authority releases any person who is committed to his charge, or

(b)without reasonable excuse allows to escape any person who is committed to his charge, or whom it is his duty to guard,

shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.

33B Resistance to arrest.E+W+S+N.I.

(1)Every person subject to this Act who, being concerned in any quarrel or disorder, refuses to obey any officer who orders him into arrest, or . . . F60 uses violence to, or offers violence to, any such officer, shall be guilty of an offence against this section whether or not the officer is his superior officer.

(2)Every person subject to this Act who . . . F60 uses violence to, or offers violence to, any person, whether subject to this Act or not, whose duty it is to apprehend him or in whose custody he is shall be guilty of an offence against this section.

(3)Every person guilty of an offence against this section shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.

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Amendments (Textual)

33C Escape from confinement.E+W+S+N.I.

Every person subject to this Act who escapes from arrest, prison or other lawful custody (whether naval or not), shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.]

Miscellaneous offencesE+W+S+N.I.

34 Unauthorised disclosure of information.E+W+S+N.I.

(1)Every person subject to this Act who without lawful authority discloses or purports to disclose, whether orally, in writing, by signal or by any other means whatsoever, information relating to any matter upon which information would or might be useful to an enemy shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.

(2)It shall be a defence for a person charged with an offence under this section that he did not know and had no reasonable cause to believe that the information disclosed related to a matter upon which information would or might be directly or indirectly useful to an enemy.

[F6134A False statements on entry. E+W+S+N.I.
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Amendments (Textual)

Any person who, when offering himself to be entered for service in the Royal Navy, has knowingly made a false answer to any question put to him in connection with his entry into such service by, or by the direction of, an officer or other person authorised under regulations made by the Defence Council to enter persons for such service shall, if he has since become and remains subject to this Act, be liable to imprisonment for a term not exceeding three months or any less punishment authorised by this Act.]

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Modifications etc. (not altering text)

[F6235 Falsification of documents.E+W+S+N.I.
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Amendments (Textual)

F62S. 35 substituted (31.1.1997) by 1995 c. 38, s. 15(1), Sch. 1 para. 3 (with ss. 1(3), 6(4)(5) and 14); S.I. 1996/3217, art. 2

(1)A person subject to this Act who—

(a)makes an official document which is to his knowledge false in a material particular, or

(b)makes in any official document an entry which is to his knowledge false in a material particular, or

(c)tampers with the whole or any part of an official document (whether by altering it, destroying it, suppressing it, removing it or otherwise), or

(d)with intent to deceive, fails to make an entry in an official document,

is liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.

(2)For the purposes of this section—

(a)a document is official if it is or is likely to be made use of, in connection with the performance of his functions as such, by a person who holds office under, or is in the service of, the Crown; and

(b)a person who has signed or otherwise adopted as his own a document made by another shall be treated, as well as that other, as the maker of the document.

(3)In this section “document” means anything in which information of any description is recorded.]

[F6335A Offences against civilian population.E+W+S+N.I.
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Amendments (Textual)

Every person subject to this Act who, in any country or territory outside the United Kingdom, commits any offence against the person or property of any member of the civilian population shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.]

[F6435B Offences against morale.E+W+S+N.I.
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Amendments (Textual)

Any person subject to this Act who spreads (whether orally, in writing, by signal, or otherwise) reports relating to operations of Her Majesty’s forces, of any forces co-operating therewith, or of any part of any of those forces, being reports likely to create despondency or unnecessary alarm, shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.]

36 Cruelty or scandalous conduct by officers. E+W+S+N.I.
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Modifications etc. (not altering text)

Every officer subject to this Act who [F65behaves in a scandalous manner] unbecoming the character of an officer shall be liable to dismissal from Her Majesty’s service with or without disgrace.

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Amendments (Textual)

Modifications etc. (not altering text)

[F6636A Ill-treatment of persons of inferior rank etc.E+W+S+N.I.
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Amendments (Textual)

If—

(a)any officer subject to this Act . . . F67 ill-treats any officer subject thereto of inferior rank or less seniority, or any rating so subject, or

(b)any rating subject to this Act and of or above the rate of leading seaman . . . F67 ill-treats any rating subject thereto of inferior rate or less seniority,

he shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.]

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Amendments (Textual)

37 Disgraceful conduct. E+W+S+N.I.
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Modifications etc. (not altering text)

Every person subject to this Act who is guilty of any [F68disgraceful conduct of a cruel, indecent or unnatural kind] shall be liable to [F68imprisonment for a term not exceeding two years] or any less punishment authorised by this Act.

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Amendments (Textual)

Modifications etc. (not altering text)

38 Offences in relation to courts-martial.E+W+S+N.I.

(1)Every person subject to this Act who—

(a)having been duly summoned or ordered to attend before a court-martial, fails to comply with the summons or order;

(b)refuses to take an oath or make an affirmation when duly required by a court-martial to do so;

(c)refuses to produce any [F69document or other thing which is in his custody or under his control and] which a court-martial has lawfully required him to produce;

(d)when a witness, refuses to answer any question which a court-martial has lawfully required him to answer;

(e)wilfully insults any person, being a member of a court-martial or a witness or any other person whose duty it is to attend on or before the court, while that person is acting as a member thereof or is so attending, or while that person is going to or returning from the proceedings of the court; or

(f)wilfully interrupts the proceedings of a court-martial, or otherwise misbehaves before the court,

shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.

(2)References in subsection (1) of this section to a court-martial shall include references to a court-martial held in pursuance of the M4Army Act 1955, or the M5Air Force Act 1955, or the law of any colony F70... .

(3)Where an offence against subsection (1) of this section is committed in relation to a court-martial and the court is of opinion that it is expedient that the offender should be dealt with summarily by the court instead of being brought to trial under this Act, the court may by order under the hand of the president sentence [F71the offender—

(a)if he is an officer, to imprisonment for a term not exceeding twenty-one days, or to a fine not exceeding the amount of his pay for twenty-eight days F72. . .,

(b)in any other case, to imprisonment or detention for such a term as aforesaid, or to such a fine as aforesaid.]

[F73(3A)If the offender has attained seventeen years of age but is under twenty-one years of age, [F74subsection (3)] above shall have effect in relation to him as if the power to impose a sentence of imprisonment were a power to make an order under section 43AA below.]

[F75(3B)For the purposes of subsection (3) above, a day’s pay shall be taken to be–

(a)subject to paragraph (b) below, the gross pay which is, or would apart from any forfeiture be, issuable to the offender in respect of the day on which the order is made;

(b)if the offender is a special member of a reserve force, the gross pay which would have been issuable to him in respect of that day if he had been an ordinary member of that reserve force of the same rank.

(3C)In subsection (3B)(b) above “special member” and “ordinary member” have the same meaning as in the Reserve Forces Act 1996.]

[F76(4)References in paragraphs (a) to (f) of subsection (1) of this section to a court-martial or to a member of a court-martial include references to a judicial officer or a person appointed under section 75L of the Army Act 1955 or section 75L of the Air Force Act 1955 and, in relation to an offence committed in relation to a judicial officer, subsection (3) of this section shall have effect as if—

(a)references to a court-martial were references to the judicial officer, and

(b)the words “under the hand of the president” were omitted.]

[F77(5)References in paragraphs (a) to (f) of subsection (1) of this section to a court-martial include references to the summary appeal court, the court established by section 83ZA of the Army Act 1955 or the court established by section 83ZA of the Air Force Act 1955 and, in relation to an offence committed in relation to the summary appeal court, subsection (3) of this section shall have effect as if the reference to a court-martial were a reference to the summary appeal court.]

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Amendments (Textual)

F69Words in s. 38(1)(c) substituted (28.2.2002) by 2001 c. 19, s. 24(2)(e); S.I. 2002/345, art. 2 (subject to art. 3)

F70Words in s. 38(2) repealed (28.2.2002) by 2001 c. 19, s. 38, Sch. 7 Pt. 1; S.I. 2002/345, art. 2 (subject to art. 3)

F72Words in s. 38(3)(a) repealed (1.1.1999) by S.I. 1998/3086, reg. 4(1)(b)

F74Words substituted (retrospectively) by Armed Forces Act 1986 (c. 21, SIF 7:1), s. 16(1), Sch. 1 para. 2

F75S. 38(3B) and (3C) inserted (1.1.1999) by S.I. 1998/3086, reg. 4(3)

Marginal Citations

39 Conduct to the prejudice of naval discipline.E+W+S+N.I.

Every person subject to this Act who is guilty [F78whether by any act or omission or otherwise, of conduct] to the prejudice of good order and naval discipline . . . F79 shall be liable to [F80imprisonment for a term not exceeding two years] or any less punishment authorised by this Act.

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Amendments (Textual)

Attempts and aiding and abettingE+W+S+N.I.

40 Attempt to commit naval offence.E+W+S+N.I.

Every person subject to this Act who attempts to commit an offence against any of the foregoing provisions of this Act shall be liable to the like punishment as for that offence:

F81. . .

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Amendments (Textual)

F81S. 40: proviso repealed (11.5.2001) by 2001 c. 19, ss. 38, 39(3)(g), Sch. 7 Pt. 4

[F8241 Aiding and abetting etc., and inciting.E+W+S+N.I.
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Amendments (Textual)

(1)Any person subject to this Act who aids, abets, counsels or procures the commission by another person of an offence against any of the foregoing provisions of this Act or who incites another person to commit any such offence, shall himself be guilty of the offence in question, and shall be liable to be charged, tried and punished accordingly.

(2)A person may be guilty by virtue of subsection (1) above of an offence against section 35 of this Act whether or not he knows the nature of the document in question.]

Civil offencesE+W+S+N.I.

42 Civil offences.E+W+S+N.I.

(1)[F83Subject to section 43A below] every person subject to this Act who is guilty of any civil offence (that is to say any act or omission which is punishable by the law of England or would be so punishable if committed in England) shall F84. . . on conviction under this Act—

F85(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F86(b)in the case of an offence constituted by a civil offence the sentence for which is fixed by law as life imprisonment, be sentenced to imprisonment for life;]

[F87(c)in the case of any other offence, [F88be liable] to such punishment or punishments (being a punishment or punishments authorised by this Act) as could be imposed . . . F89 on conviction by a civil court of the like offence committed in England, or to any punishment so authorised which is less than the maximum punishment which could be so imposed.]

[F90(1A)Where the corresponding civil offence is one to which [F91section 109, 110 or 111 of the Powers of Criminal Courts (Sentencing) Act 2000] would apply, the court-martial shall impose the sentence required by subsection (2) of that section unless it is of the opinion that there are exceptional circumstances which justify its not doing so.]

(2)A person subject to this Act may be charged with an offence under this section notwithstanding that he could on the same facts be charged with an offence under any other provision of this Part of this Act.

[F92(2A)For the purpose of determining under this section whether an attempt to commit an offence is a civil offence, subsection (4) of section 1 of the M6Criminal Attempts Act 1981 (which relates to the offence of attempt) shall have effect as if for the words “offence which, if it were completed, would be triable in England and Wales as an indictable offence” there were substituted the words “civil offence consisting of an act punishable by the law of England and Wales as an indictable offence or an act which, if committed in England or Wales, would be so punishable by that law”.]

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Amendments (Textual)

F83Words in s. 42(1) inserted (1.10.2001) by 2001 c. 19, s. 34, Sch. 6 Pt. 6 para. 34(2); S.I. 2001/3234, art. 2 (subject to transitional provisions in art. 3)

F84Words in s. 42(1) repealed (1.10.2001) by 2001 c. 19, ss. 34, 38, Sch. 6 Pt. 6 para. 34(2), Sch. 7 Pt. 7; S.I. 2001/3234, art. 2 (subject to transitional provisions in art. 3)

F86S. 42(1)(b) substituted (1.10.2001) by 2001 c. 19, s. 34, Sch. 6 Pt. 6 para. 34(3); S.I. 2001/3234, art. 2 (subject to transitional provisions in art. 3)

F88Words in s. 42(1)(c) inserted (1.10.2001) by 2001 c. 19, s. 34, Sch. 6 Pt. 6 para. 34(4); S.I. 2001/3234, art. 2 (subject to transitional provisions in art. 3)

F91Words in s. 42(1A) substituted (25.8.2000) by 2000 c. 6, ss. 165(1), 168(1), Sch. 9 para. 18

Modifications etc. (not altering text)

C20S. 42 modified (1.10.1997) by 1997 c. 43, s. 7(1); S.I. 1997/2200, art. 2(1)

Marginal Citations

Prospective

[F9342A Reduction in minimum sentences for guilty pleasE+W+S+N.I.
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Amendments (Textual)

(1)Where sentence falls to be imposed under subsection (IE) or (1G) of section 42 of this Act in respect of an offence to which the offender has pleaded guilty, nothing in that subsection shall prevent a court-martial, after taking into account—

(a)the stage in the proceedings for the offence at which the offender indicated his intention to plead guilty, and

(b)the circumstances in which the indication was given,

from imposing any sentence which is not less than 80 per cent of that specified in that subsection.

(2)Where, by virtue of subsection (1) above, a court-martial imposes a sentence which is less severe than that which it would otherwise have imposed, the court-martial shall state in open court that it has done so.

(3)For the purposes of subsection (1) above, a sentence falls to be imposed under subsection (1E) or (1G) of section 42 of this Act if it is required by that subsection and the court-martial is not of the opinion referred to in that subsection.]

Prospective

F9442B Reasons to be given for not passing life or minimum sentenceE+W+S+N.I.

(1)If—

(a)subsection (1B) of section 42 of this Act applies to a person, but

(b)the court-martial is of the opinion that there are exceptional circumstances as mentioned in that subsection which justify its not imposing a sentence of imprisonment for life,

the court shall state in open court that it is of that opinion and what the exceptional circumstances are.

(2)If—

(a)subsection (1E) or (1G) of section 42 of this Act applies to a person, but

(b)the court-martial is of the opinion that there are particular circumstances as mentioned in that subsection which, in all the circumstances, would make a sentence of imprisonment for the minimum term mentioned in that subsection unjust,

the court shall state in open court that it is of that opinion and what the particular circumstances are.

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Amendments (Textual)

PunishmentsE+W+S+N.I.

[F9543 Scale of punishments, and supplementary provisions.E+W+S+N.I.
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Amendments (Textual)

F95S. 43 substituted for ss. 43, 44 by Armed Forces Act 1971 (c. 33), ss. 38, 78(4)

(1)The punishments which may be awarded to persons convicted of offences under this Part of this Act are, subject to the following provisions of this section [F96and section 43A below], as follows:—

F97(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)imprisonment,

[F98(bb)detention by virtue of a custodial order made under section 43AA of this Act;]

[F99(bc)order that the convicted person be disqualified from working with children]

(c)dismissal with disgrace from Her Majesty’s service,

(d)dismissal from Her Majesty’s service,

(e)detention for a term not exceeding two years,

(f)forfeiture of seniority for a specified term or otherwise,

(g)dismissal from the ship or naval establishment to which the offender belongs,

(h)disrating,

(i)fine,

(j)severe reprimand,

(k)reprimand,

(l)in the case of an offence which has occasioned any expense, [F100personal injury], loss or damage, stoppages, that is to say, the recovery, by deductions from the offender’s pay, of a specified sum by way of compensation for the expense, [F100personal injury] loss or damage, and

(m)such minor punishments as may from time to time be authorised by the Defence Council;

and references in this Act to any punishment authorised by this Act are, subject to the limitation imposed in any particular case by the addition of the word “less”, references to any one or more of the said punishments.

For the purposes of this Part of this Act a punishment specified in any of the above paragraphs shall be treated as less than the punishments specified in the paragraphs preceding that paragraph and greater than those specified in the paragraphs following it:

[F101Provided that a punishment such as is mentioned in paragraph (e) of this subsection shall not be treated as a less punishment than a punishment such as is mentioned in paragraph (b) or (bb) if the term of detention is longer than the term of imprisonment or, as the case may be, than the term of detention by virtue of the custodial order.]

(2)Subsection (1) above shall have effect—

(a)in relation to a convicted person who is an officer, with the omission of paragraphs (e), (h) and (m),

(b)in relation to a convicted person who is a warrant officer, with the omission of paragraphs (f), (g) and (m), and

(c)in relation to a convicted person who is a rating below the rate of warrant officer with the omission of paragraphs (f) and (g) and, if he is below the rate of leading seaman, of paragraphs (h), (j) and (k) also.

(3)A person [F102who, otherwise than under section 38(3) of this Act, is] sentenced under this Act to imprisonment shall also be sentenced either to dismissal with disgrace from Her Majesty’s service or to dismissal from Her Majesty’s service:

Provided that, if the sentencing authority fail to give effect to this subsection, their sentence shall not be invalid, but shall be deemed to include a sentence of dismissal from Her Majesty’s service.

(4)A rating of the rate of leading seaman or above [F102who, otherwise than under section 38(3) of this Act, is] sentenced under this Act to imprisonment, to dismissal from Her Majesty’s service (whether or not with disgrace), or to detention, shall also be sentenced to disrating:

Provided that, if the sentencing authority fail to give effect to this subsection, their sentence shall not be invalid, but shall be deemed to include a sentence of disrating

(5)A sentence of disrating awarded in compliance with subsection (4) above, or deemed to have been awarded by virtue of the proviso to that subsection, shall be one reducing the offender to such rate as may be prescribed in relation to persons of the class to which he belongs by regulations made by the Defence Council; and any other sentence of disrating under this Act may reduce the offender to any rate not lower than that so prescribed.

(6)The amount of a fine that may be awarded under this Act by way of punishment for an offence, except in the case of an offence under section 42 thereof, shall not exceed the amount of the offender’s pay for twenty-eight days or, where the offence was committed on active service, fifty-six days; and in the said excepted case—

(a)the amount of a fine that may be so awarded by a court-martial—

(i)where the civil offence constituting the offence under that section is punishable by a civil court in England only on summary conviction, and is so punishable by a fine, shall not exceed the maximum amount of that fine, and

(ii)where the said civil offence is punishable by a civil court in England on indictment (whether or not it is also punishable on summary conviction) by a fine, shall not exceed the maximum amount of that fine;

(b)the amount of a fine that may be so awarded where the offence is tried summarily—

(i)in any case shall not exceed the amount of the offender’s pay for twenty-eight days or, where the civil offence constituting the offence was committed on active service, fifty-six days, and

(ii)where the said civil offence is punishable by a civil court in England only on summary conviction, and is so punishable by a fine of a maximum amount less than the amount mentioned in sub-paragraph (i) above, shall not exceed that maximum, and

(iii)where the said civil offence is punishable by a civil court in England on indictment by a fine of a maximum amount less than the amount so mentioned (whether or not it is also punishable on summary conviction) shall not exceed that maximum;

F103. . ..

[F104(6A)For the purposes of subsection (6) above, a day’s pay shall be taken to be–

(a)subject to paragraph (b) below, the gross pay which is, or would apart from any forfeiture be, issuable to the offender in respect of the day on which the punishment is awarded;

(b)if the offender is a special member of a reserve force, the gross pay which would have been issuable to him in respect of that day if he had been an ordinary member of that reserve force of the same rank.

(6B)In subsection (6A)(b) above “special member” and “ordinary member” have the same meaning as in the Reserve Forces Act 1996.]

[F105(7)Unless the Secretary of State by order provides that this subsection shall no longer apply, the stoppages awarded in respect of any offence occasioning personal injury of which a person is convicted or any other such offence which is taken into consideration in determining sentence shall not exceed such sum as is for the time being specified by an order made by the Secretary of State.

F105(8)The power to make an order under subsection (7) above shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.]]

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Amendments (Textual)

F103Words in s. 43(6) repealed (1.1.1999) by S.I. 1998/3086, reg. 3(1)

F104S. 43(6A) and (6B) inserted (1.1.1999) by S.I. 1998/3086, reg. 3(3)

[F10643A JuvenilesE+W+S+N.I.
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Amendments (Textual)

(1)A person under21 years of age shall not be sentenced to imprisonment.

[F107(1A)Where—

(a)a person under 21 years of age is convicted of murder or any other civil offence the sentence for which is fixed by law as imprisonment for life; or

(b)a person under that age is convicted of any civil offence to which [F108section 109 of the Powers of Criminal Courts (Sentencing) Act 2000] would apply and the court is not of the opinion mentioned in subsection (2) of that section,

the court shall sentence him to custody for life unless he is liable to be detained under subsection (3) below.]

(1B)Where a person aged [F10918 years] or over but under 21 years of age is convicted of any other offence for which a person aged 21 years or over would be liable to imprisonment for life [F110then, subject to subsection (1E) below], the court shall sentence him to custody for life if—

F111(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)it considers that a custodial sentence for life would be appropriate.

(1C)For the purpose of determining whether any method of dealing with a person to whom subsection (1B) of this section applies, other than sentencing him to custody for life, is appropriate, the court shall obtain and consider information about the circumstances, and shall take into account any information before the court which is relevant to his character and his physical and mental condition.

[F112(1D)Subject to subsections (3) and (4) below, the only custodial sentences that a court may award where a person under 21 years of age is convicted or found guilty of an offence are—

(a)a custodial order under section 43AA of this Act or under paragraph 10 of Schedule 4A to this Act; and

(b)a sentence of custody for life under subsection (1A) or (1B) above.

(1E)A court may not—

(a)make a custodial order under section 43AA of this Act; or

(b)pass a sentence of custody for life under subsection (1B) above;

unless it is satisfied—

(i)that the circumstances, including the nature and the gravity of the offence, are such that if the offender were aged 21 or over the court would pass a sentence of imprisonment; and

(ii)that he qualifies for a custodial sentence.

(1F)An offender qualifies for a custodial sentence if—

(a)he has a history of failure to respond to non-custodial sentences and is unable or unwilling to respond to them; or

(b)only a custodial sentence would be adequate to protect the public from serious harm from him; or

(c)the offence of which he has been convicted or found guilty was so serious that a non-custodial sentence for it cannot be justified.]

(2) . . . F113

(3)A person convicted of murder [F114or any other offence the sentence for which is fixed by law as life imprisonment] who was under 18 years of age when the offence was committed shall not be sentenced to imprisonment for life, F115. . .; but in lieu thereof the court shall (notwithstanding anything in this or any other Act) sentence him to be detained during Her Majesty’s pleasure, and if so sentenced he shall be liable to be detained in such place and under such conditions as the Secretary of State may direct.

(4)[F116 In any case where—

(a)a person aged 14 or over but under [F11718 years] of age is] found guilty of a civil offence (other than one the sentence for which is fixed) which is punishable by a civil court in England or Wales on indictment by, in the case of an adult, a term of imprisonment for 14 years or more, [F116or,

(b)a person under 14 years of age is found guilty of manslaughter, and, in either case, the court] is of opinion that none of the other methods in which the case may be legally dealt with is suitable [F118 the court may sentence that person], to be detained for such period, not exceeding the maximum term of imprisonment with which the offence is punishable by such a civil court in the case of an adult, as may be specified in the sentence; and where such a sentence has been passed, the person on whom it is passed shall during that period be liable to be detained in such place and on such conditions as the Secretary of State may direct .

(5)A sentence of custody for life or detention under subsection (3) or (4) above shall be treated for the purposes of this Part of this Act as a punishment authorised by this Act involving the same degree of punishment as a sentence of imprisonment; and section 43(3) and (4) above shall apply to such a sentence of detention and to a sentence of custody for life as they apply to a sentence of imprisonment.

(6)A person detained pursuant to the directions of the Secretary of State under this section shall, while so detained, be deemed to be in legal custody.]

[F119(7)A sentence of detention under section 43(1)(e) of this Act shall be treated for the purposes of this section as a non-custodial sentence and references in this section to a custodial sentence shall be construed accordingly.]

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Amendments (Textual)

F108Words in s. 43A(1A) substituted (25.8.2000) by 2000 c. 6, ss. 165(1), 168(1), Sch. 9 para. 19 (which substitution falls (prosp.) by reason of the repeal of Sch. 9 para. 19 by 2000 c. 43, ss. 75, 80(1), Sch. 8)

F109Words in s. 43A(1B) substituted (1.10.1992 as regards England and Wales but otherwiseprosp.) by Criminal Justice Act 1991 (c. 53), ss. 71, 102(2)(8), Sch. 9 para. 5; S.I. 1992/333, arts. 2(2), 3(1), Sch. 2.

F114Words in s. 43A(3) inserted (30.11.2000 with effect as mentioned in Sch. 7 para. 29(2) of the amending Act) by 2000 c. 43, s. 74, Sch. 7 Pt. II para. 29(1)(e)

F115Words in s. 43A(3) repealed (11.5.2001) by 2001 c. 19, ss. 38, 39(3)(g), Sch. 7 Pt. 4

F117Words in s. 43A(4)(a) substituted (1.10.1992 as regards England and Wales but otherwiseprosp.) by Criminal Justice Act 1991 (c. 53), ss. 71, 102(2)(8), Sch. 9 para. 5; S.I. 1992/333, arts. 2(2), 3(1), Sch. 2.

[F12043AA Young service offenders: custodial orders.E+W+S+N.I.
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Amendments (Textual)

(1)Where a person who has attained seventeen years of age but is under twenty-one years of age is found guilty by a court-martial of an offence punishable under this Act with imprisonment, the court shall have power, F121. . . to make an order (in this section referred to as a “custodial order”) committing him to be detained in accordance with the provisions of this section for a [F122period to be specified in the order [F123being not less than 21 days and] [F124which—

(a)shall be not less than the appropriate minimum period, that is to say—

(i)in the case of an offender who has attained eighteen years of age, the period of 21 days; or

(ii)in the case of an offender who is under that age, the period of two months; and

(b)shall not exceed] the maximum period for which he could have been sentenced to imprisonment if he had attained the age of twenty-one years]

F125(1A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F126(1AA)The court shall not make a custodial order committing an offender aged 17 to be detained for a period exceeding twelve months or for a period such that the continuous period for which he is committed to be detained under that order and any one or more other custodial orders exceeds twelve months.]

(1B)For the purposes of determining whether [F127 it is satisfied as mentioned in sub-paragraphs (i) and (ii) of subsection (1E) of section 43A of this Act with respect to any person] the court shall obtain and consider information about the circumstances, and shall take into account any information before the court which is relevant to his character and his physical and mental condition.]

(2)If a person is outside the United Kingdom at the time a custodial order is made in respect of him, he shall as soon as practicable be removed to the United Kingdom.

(3)A person in respect of whom a custodial order has been made shall be detained in such appropriate institution as the Secretary of State may direct, and any enactment applying to persons detained in any such institution shall apply to a person so detained under this section.

(4)A custodial order shall be sufficient authority for the detention of the person subject to it in service custody until he is received into the institution specified in the Secretary of State’s direction.

[F128(5)The following provisions of this Act shall apply in the case of a sentence under a custodial order as they apply in the case of a sentence of imprisonment, that is to say—

(a)sections 43(3) and (4), 85(1), 86(1) and (3), 89(3) and 92(1); and

(b)for the period before a person sentenced under a custodial order is received into the institution where he is to be detained (or for the currency of the sentence if its term ends before he is so received), sections 81, 82, 87, 88, 104, 119 and 130A;

and, accordingly, references in those provisions to a sentence of imprisonment shall include for the purposes of this subsection references to a sentence under a custodial order.]

(6)In this section “appropriate institution” means—

[F129(a)where the offender is in or removed to England or Wales, any institution in which a person sentenced to detention in a young offender institution could be detained, [F130section 98 of the Powers of Criminal Courts (Sentencing) Act 2000] having effect in relation to the offender as it has effect in relation to an offender sentenced to detention in a young offender institution;]

[F131(b)where the offender is in or removed to Scotland, a young offenders institution;]

(c)where the offender is in or removed to Northern Ireland, a young offenders centre.

[F132(6A)[F133Sections 16 and 17 of the Crime (Sentences) Act 1997 (as modified by section 19 of that Act)] (release of young offenders) shall apply to persons released from a term of detention under a custodial order as it applies to persons released from [F134a sentence of detention in a young offender institution].]

[F135(6B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

(7)This section does not apply to offenders who are civilians (as regards whom similar provision is made by paragraph 10 of Schedule 4A to this Act).

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Amendments (Textual)

F121Words in s. 43AA(1) repealed (1.1.1992) by Armed Forces Act 1991 (c. 62), ss. 3(1), 26(2). Sch. 3; S.I. 1991/2719, art. 2 and repealed (1.10.1992 as regards England and Wales but otherwiseprosp.) by Criminal Justice Act 1991 (c. 53, SIF 39:1), ss. 71, 101(2), 102(2)(8), Sch. 9 para. 6(b), Sch. 13; S.I. 1992/333, arts. 2(2), 3(1), Sch. 2.

F123Words in s. 43AA(1) inserted (1.1.1992) by Armed Forces Act 1991 (c. 62), s. 3(1); S. I. 1991/2719, art. 2 and repealed (1.10.1992 as regards England and Wales but otherwiseprosp.) by Criminal Justice Act 1991 (c. 53), ss. 101(2), 102(2)(8), Sch. 13; S.I. 1992/333, arts. 2(2), 3(1), Sch. 2.

F124Words in s. 43AA(1) substituted (1.10.1992 as regards England and Wales but otherwiseprosp.) by Criminal Justice Act 1991 (c. 53), SS. 71, 102(2)(8), Sch. 9 para. 6; S.I. 1992/333, arts. 2(2), 3(1), Sch. 2.

F126S. 43AA(1AA) inserted (1.10.1992 as regards England and Wales but otherwiseprosp.) by Criminal Justice Act 1991 (c. 53), ss. 71, 102(2)(8), Sch. 9 para. 6(c); S.I. 1992/333, arts. 2(2), 3(1), Sch. 2.

F130Words in s. 43AA(6)(a) substituted (25.8.2000) by 2000 c. 6, ss. 165(1), 168(1), Sch. 9 para. 20 (which substitution falls (prosp.) by reason of the repeal of Sch. 9 para. 20 by 2000 c. 43, ss. 75, 80(1), Sch. 8)

F134Words in s. 43AA(6A) substituted (1.10.1988) by virtue of 1988 c. 33, s. 123, Sch. 8 Pt. I paras. 1, 2; S.I. 1988/1408, art. 2(1), Sch.

[43ABF136 Reasons to be given where custodial sentence awarded to young offender.E+W+S+N.I.

(1)This section applies where a court—

(a)makes a custodial order under section 43AA of this Act, or

(b)passes a sentence of custody for life under section 43A(1B) of this Act.

(2)It shall be the duty of the court—

(a)to state in open court and to record in the proceedings that it is satisfied that the offender qualifies for a custodial sentence under one or more of the paragraphs of subsection (1F) of section 43A of this Act, the paragraph or paragraphs in question, and why it is so satisfied; and

(b)to explain to the offender in open court and in ordinary language why it is passing a custodial sentence on him.

(3)Where a court makes a custodial order and, in accordance with its duty under subsection (2) above, makes the statement required by paragraph (a) of that subsection, the matters stated shall be specified in the committal order.]

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Amendments (Textual)

[F13743B Power to impose imprisonment for default in payment of fines.E+W+S+N.I.
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Amendments (Textual)

(1)Subject to the provisions of this section, if a court-martial imposes a fine on a person found guilty of any offence—

(a)who is sentenced to imprisonment on the same occasion for the same or another offence or,

(b)who is already serving or otherwise liable to serve a term of imprisonment, [F138or

(c)in respect of whom the court makes an order under section 43AA above on the same occasion for the same or another offence, or

(d)who is already serving or otherwise liable to serve a period of detention under such an order.]

it may make an order fixing a further consecutive term of imprisonment [F139or detention] . . . F140 which the said person is to undergo if any part of the fine is not duly paid or recovered on or before the date on which he could otherwise be released.

[F141(2)Subject to subsections (4) and (5) below, the Table in [F142section 139(4) of the Powers of Criminal Courts (Sentencing) Act 2000] (maximum periods of imprisonment for default in payment of fines etc.), as from time to time amended under section 143 of the Magistrates’ Courts Act M71980, shall have effect for the purpose of determining the maximum periods of further imprisonment or detention that may be specified under subsection (1) above for fines of the amounts set out in that Table.]

(3)Where the whole amount of the said fine is paid or recovered in the prescribed manner the order under subsection (1) above shall cease to have effect, and the person subject to it shall be released unless he is in custody for some other cause.

(4)Where part of the said amount is paid or recovered in such manner as may be prescribed by regulations of the Defence Council, the period of the further term of imprisonment [F143or detention] specified under subsection (1) above shall be reduced by such number of days as bears to the total number of days in that period less one day the same proportion as the amount so paid or recovered bears to the amount of the said fine.

(5)In calculating the reduction required under the last preceding subsection any fraction of a day shall be left out of account.

[F144(5A)An order imposing a term of detention under this section shall be given effect as if it were a custodial order under section 43AA above.]

(6)in this section, references to the due recovery of any amount include references to deductions from pay under Part IV of this Act, but do not include references to amounts forfeited under the said Part IV.]

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Amendments (Textual)

F142Words in s. 43B(2) substituted (25.8.2000) by 2000 c. 6, ss. 165(1), 168(1), Sch. 9 para. 21

Marginal Citations

Part IIE+W+S+N.I. Trial and punishment of offences

ArrestE+W+S+N.I.

45 Duty to bring offenders to justice and powers of arrest.E+W+S+N.I.

(1) It shall be the duty of every person subject to this Act who knows or has reasonable grounds for suspecting that any other person subject thereto is committing or has committed an offence under any provision of Part I of this Act, to take all reasonable steps within his power to cause that person to be brought to justice.

[F145(2)A person who is reasonably suspected of being engaged in committing, or of having committed, any such offence may be arrested in accordance with subsection (3), (4), (5) or (6) by a person subject to this Act or to military or air-force law.

(3)An officer may be arrested under subsection (2)—

(a)by an officer of superior rank or, if engaged in a mutiny, quarrel or disorder, by an officer of any rank;

(b)by a service policeman; or

(c)on the order of another officer, by a person who is lawfully exercising authority on behalf of a provost officer.

(4)A person of or below the rate of warrant officer may be arrested under subsection (2)—

(a)by an officer;

(b)by a warrant officer or non-commissioned officer of superior rank or rate;

(c)by a service policeman;

(d)by a person who is lawfully exercising authority on behalf of a provost officer; or

(e)if a member of a ship's company or an embarked force, by a person exercising authority as a member of the staff of the officer of the day.

(5)A person to whom any provisions of Parts 1 and 2 of this Act apply by virtue of section 117 or 118 of this Act (application of Act to passengers in HM ships and aircraft and to civilians) may be arrested under subsection (2)—

(a)by an officer;

(b)by a service policeman; or

(c)by a person who is lawfully exercising authority on behalf of a provost officer.

(6)Where none of subsections (3) to (5) applies in relation to the person to be arrested, that person may be arrested under subsection (2) by a service policeman.

(7)The power of arrest conferred on any person by this section may be exercised—

(a)personally;

(b)by giving orders for the arrest of the person who is to be arrested; or

(c)where that person is subject to this Act or to military or air-force law, by ordering him into arrest.F145]

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Amendments (Textual)

[F14645APower of arrest in anticipation of commission of offenceE+W+S+N.I.
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Amendments (Textual)

(1)A service policeman may arrest a person whom he reasonably suspects of being about to commit an offence under any provision of Part 1 of this Act.

(2)Subsection (7) of section 45 of this Act applies in relation to the power of arrest conferred by this section as it applies in relation to the power of arrest conferred by that section.

(3)Where a person is arrested under this section—

(a)the arrest must be reported as soon as practicable to his commanding officer; and

(b)he may be kept in naval, military or air-force custody until such time as a service policeman is satisfied that the risk of his committing the offence concerned has passed.]

F14746. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W+S+N.I.

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Amendments (Textual)

47 Evidence of arrest or surrender.E+W+S+N.I.

(1)In any proceedings for an offence under Part I of this Act against a person who—

(a)has surrendered himself to any consular officer;

(b)has been taken on arrest or surrender into the custody of a provost officer; or

(c)has been taken on arrest or surrender into custody at any police station, guard-room or other place in any part of Her Majesty’s dominions,

a certificate purporting to be signed by the consular or provost officer, or the officer in charge of the police station, guard-room or other place, as the case may be, containing a statement of the fact, date, time and place of arrest or surrender, and whether or not the person charged was wearing the uniform of any of Her Majesty’s naval forces at the time of arrest or surrender, shall be evidence of the matter therein contained.

(2)In any proceedings for an offence of desertion, absence without leave or improperly leaving his ship . . . F148 against a person who on arrest or surrender has been brought before a court of summary jurisdiction in accordance with the provisions of Part III of this Act, a certificate purporting to be signed by a justice of the peace [F149or (in Northern Ireland) resident magistrate]F149 containing a statement of the fact, date, time and place of arrest or surrender, and whhe person charged was wearing the uniform of any of Her Majesty’s naval forces at the time of arrest og such particulars as to the proceedings before the court as may be prescribed by regulations made by [F150the Defence Council] by statutory instrument, shall be evidence of the matter therein contained.

(3)In this section “provost officer” includes a corresponding officer of any of the forces of a Commonwealth country, or of a force raised under the law of any colony.

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Amendments (Textual)

F150Words substituted by S.I. 1964/488, Sch. 1 Pt. I

Modifications etc. (not altering text)

[F151 CustodyE+W+S+N.I.

F15247A Limitations on custody without charge.E+W+S+N.I.

(1)A person arrested under section 45 of this Act shall not be kept in naval custody without being charged except in accordance with sections 47B to 47D of this Act.

(2)If at any time the commanding officer of a person who is kept in naval custody without being charged—

(a)becomes aware that the grounds for keeping that person in naval custody have ceased to apply; and

(b)is not aware of any other grounds on which continuing to keep that person in naval custody could be justified under the provisions of this Act,

it shall be the duty of the commanding officer, subject to subsection (3) below, to order his immediate release from naval custody.

(3)A person who appears to his commanding officer to have been unlawfully at large when he was arrested is not to be released under subsection (2) above.

(4)For the purposes of this section and sections 47B to 47L of this Act a person is to be treated as charged with an offence when he is informed in accordance with regulations of the Defence Council that a charge is to be reported to his commanding officer under section 52B(1) of this Act.

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Amendments (Textual)

F15347B Authorisation of custody without charge.E+W+S+N.I.

(1)Where a person is arrested under section 45 of this Act—

(a)the arrest, and

(b)any grounds on which he is being kept in naval custody without being charged,

shall be reported as soon as practicable to his commanding officer.

(2)Until such a report is made, the person may be kept in naval custody without being charged, but only if the person who made the arrest has reasonable grounds for believing that keeping him in naval custody without charge is necessary—

(a)to secure or preserve evidence relating to an offence for which he is under arrest, or

(b)to obtain such evidence by questioning him.

(3)After receiving a report under subsection (1) above the commanding officer shall as soon as practicable determine—

(a)whether the requirements of subsection (4) below are satisfied, and

(b)if so, whether to exercise his powers under that subsection;

and the person to whom the report relates may be kept in naval custody for such period as is necessary to enable the commanding officer to make that determination.

(4)If in relation to the person to whom the report relates the commanding officer has reasonable grounds for believing—

(a)that keeping him in naval custody without being charged is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning him, and

(b)that the investigation is being conducted diligently and expeditiously,

he may authorise the keeping of that person in naval custody.

(5)An authorisation under subsection (4) above—

(a)if given less than 12 hours after the relevant time, shall end not more than 12 hours after the relevant time;

(b)if given not less than 12 but less than 36 hours after the relevant time, shall end not more than 36 hours after the relevant time;

(c)if given not less than 36 but less than 48 hours after the relevant time, shall end not more than 48 hours after the relevant time.

(6)A person shall not be kept in naval custody later than 48 hours after the relevant time without being charged except in accordance with section 47D of this Act.

(7)In this Act “the relevant time” in relation to a person arrested under section 45 of this Act means the time of the arrest.

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Amendments (Textual)

Modifications etc. (not altering text)

F15447C Review of custody by commanding officer.E+W+S+N.I.

(1)The commanding officer of a person kept in naval custody in accordance with section 47B of this Act shall, subject to subsection (3) below, review the keeping of that person in naval custody not later than the end of the period for which it is authorised.

(2)Subsections (4) and (5) of section 47B of this Act shall apply on each review under this section as they apply where a report is received under subsection (1) of that section.

(3)A review may be postponed—

(a)if, having regard to all the circumstances prevailing at the expiry of the last authorisation under subsection (4) of that section, it is not practicable to carry out the review at that time;

(b)without prejudice to the generality of paragraph (a) above—

(i)if at that time the person in naval custody is being questioned and the commanding officer is satisfied that an interruption of the questioning for the purpose of carrying out the review would prejudice the investigation in connection with which he is being questioned; or

(ii)if at that time the commanding officer is not readily available.

(4)If a review is postponed under subsection (3) above—

(a)it shall be carried out as soon as practicable after the expiry of the last authorisation under section 47B(4) of this Act, and

(b)the keeping in naval custody of the person to whom the review relates shall by virtue of this paragraph be authorised until that time.

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Amendments (Textual)

F15547D Extension of custody without charge.E+W+S+N.I.

(1)If, on an application by the commanding officer of a person arrested under section 45 of this Act, a judicial officer is satisfied that there are reasonable grounds for believing that the continued keeping of that person in naval custody is justified, the judicial officer may by order authorise the keeping of that person in naval custody.

(2)A judicial officer may not hear an application under this section unless the person to whom it relates—

(a)has been informed in writing of the grounds for the application, and

(b)has been brought before him for the hearing.

(3)The person to whom the application relates shall be entitled to be legally represented at the hearing and, if he is not so represented but wishes to be so represented—

(a)the judicial officer shall adjourn the hearing to enable him to obtain representation, and

(b)he may be kept in naval custody during the adjournment.

(4)For the purposes of this section, the continued keeping of a person in naval custody is justified only if—

(a)keeping him in custody without charge is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning him, and

(b)the investigation is being conducted diligently and expeditiously.

(5)Subject to subsection (7) below, an application under this section may be made—

(a)at any time before the end of 48 hours after the relevant time; or

(b)if it is not practicable for the application to be heard at the expiry of that period, as soon as practicable thereafter but not more than 96 hours after the relevant time.

(6)Where subsection (5)(b) above applies, an authorisation on a review under section 47C of this Act may be for a period ending more than 48 hours after the relevant time, but may not be—

(a)for a period of more than six hours, or

(b)for a period ending more than 96 hours after the relevant time.

(7)If—

(a)an application under this section is made more than 48 hours after the relevant time, and

(b)it appears to the judicial officer that it would have been reasonable for the commanding officer to make the application before the end of that period,

the judicial officer shall refuse the application.

(8)Where on an application under this section relating to any person the judicial officer is not satisfied that there are reasonable grounds for believing that continuing to keep that person in naval custody is justified, he shall—

(a)refuse the application, or

(b)adjourn the hearing of it until a time not later than 48 hours after the relevant time.

(9)The person to whom the application relates may be kept in naval custody during the adjournment.

(10)The period for which a judicial officer, on an application under this section, may authorise the keeping of a person in naval custody shall be such period, ending not more than 96 hours after the relevant time, as he thinks fit having regard to the evidence before him.

(11)Where a judicial officer refuses an application under this section at any time less than 48 hours after the relevant time, he may direct that the person to whom it relates forthwith be charged or released from naval custody.

(12)Where a judicial officer refuses an application under this section at any later time, he shall direct that the person to whom it relates forthwith be charged or released from naval custody.

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Amendments (Textual)

F15647E Custody without charge: other cases.E+W+S+N.I.

(1)Sections 47A to 47D of this Act apply—

(a)where a person is delivered into naval custody under section 103(3), 108(2) or 109(1) or (3) of this Act or under Schedule 2 to the M8Reserve Forces Act 1996, and

(b)in any other case where a person arrested by a constable is delivered into naval custody,

as they apply where a person is arrested under section 45 of this Act, subject to such modifications as the Secretary of State may by regulations made by statutory instrument prescribe.

(2)In those cases references to the relevant time are—

(a)in relation to a person delivered into naval custody following arrest under section 103 or 105 of this Act or paragraph 2 of Schedule 2 to the 1996 Act or otherwise following arrest by a constable, references to the time of the arrest;

(b)in relation to a person delivered into naval custody following surrender under section 188 of this Act or paragraph 6 of that Schedule, references to the time of the surrender.

(3)Regulations under subsection (1) above shall be subject to annulment in pursuance of a resolution of either House of Parliament.

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Amendments (Textual)

Marginal Citations

F15747F Custody without charge: supplementary.E+W+S+N.I.

(1)The Defence Council may by regulations make provision with respect to—

(a)the delegation by the commanding officer of a person in naval custody of any of the commanding officer’s functions under sections 47A to 47D of this Act to any other person subject to this Act;

(b)circumstances in which a person kept in naval custody without being charged is to be informed of, or given an opportunity to make representations about, any matter;

(c)the keeping of written records relating to compliance with any requirement of sections 47A to 47D of this Act or of regulations under paragraph (b) above.

(2)Any reference in sections 47B to 47D of this Act to a period of time is to be treated as approximate only.]

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Amendments (Textual)

[F15847G Custody after charge.E+W+S+N.I.
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Amendments (Textual)

(1)Where a person subject to this Act (“the accused”) is kept in naval custody after being charged with an offence under any provision of Part I of this Act, he shall be brought before a judicial officer as soon as practicable.

(2)Where the accused is brought before a judicial officer in accordance with subsection (1) above, the judicial officer may by order authorise the keeping of the accused in naval custody, but only if—

(a)the judicial officer is satisfied that there are substantial grounds for believing that the accused, if released from naval custody, would—

(i)fail to attend any hearing in the proceedings against him,

(ii)commit an offence while released, or

(iii)interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person;

(b)the judicial officer is satisfied that the accused should be kept in naval custody for his own protection or, if he is under 17 years of age, for his own welfare;[F159 or]

F159(c)the judicial officer is satisfied that it has not been practicable to obtain sufficient information for the purpose of taking the decisions required by this subsection for want of time since the accused was charged with the offence; F160...

(d)F161. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)In taking the decision required by subsection (2)(a) above, the judicial officer shall have regard to such of the following considerations as appear to him to be relevant—

(a)the nature and seriousness of the alleged offence (and the probable method of dealing with the accused for it),

(b)the character, antecedents, associations and social ties of the accused,

(c)the accused’s behaviour on previous occasions while charged with an offence and released from naval custody or while on bail in criminal proceedings,

(d)the strength of the evidence that the accused committed the offence,

as well as to any others which appear to be relevant.

(4)If—

(a)the accused is charged with an offence to which this subsection applies;

(b)representations are made as to any of the matters mentioned in subsection (2)(a) above; and

(c)the judicial officer decides not to authorise the keeping of the accused in naval custody,

the judicial officer shall state the reasons for his decision and shall cause those reasons to be included in the record of the proceedings.

(5)Subsection (4) above applies to any offence under section 42 of this Act where the civil offence constituting the offence is—

(a)murder;

(b)manslaughter;

(c)rape;

(d)attempted murder; or

(e)attempted rape.

(6)The period for which a judicial officer may, by an order under subsection (2) above, authorise the keeping of the accused in naval custody shall be such period, ending (subject to section 47H(7) of this Act) not later than 8 days after the day on which the order is made, as he thinks fit having regard to the evidence before him.

(7)An order under subsection (2) above does not authorise the keeping of the accused in naval custody—

(a)if the accused is subsequently released from naval custody, at any time after his release; or

(b)at any time after the award of punishment on summary trial of the charge or any amended or substituted charge.

(8)Subsection (1) above does not apply where the accused is charged at a time when he is kept in naval custody by reason of an award or sentence under this Act or of an order under subsection (2) above, unless that reason ceases to apply.]

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Amendments (Textual)

[F16247H Review of custody after charge.E+W+S+N.I.
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Amendments (Textual)

(1)Where the keeping of the accused in naval custody is authorised by an order under section 47G(2) of this Act, it shall be reviewed by a judicial officer not later than the end of the period for which it is authorised.

(2)If at any time it appears to the accused’s commanding officer that the grounds on which such an order was made have ceased to exist, he shall—

(a)release the accused from naval custody, or

(b)request a review.

(3)Where a request is made under subsection (2) above, a review shall be carried out as soon as practicable.

(4)Subsections (2) to (6) of section 47G of this Act apply on a review as they apply where the accused is brought before a judicial officer under subsection (1) of that section.

(5)At the first review the accused may support an application for release from naval custody with any argument as to fact or law that he desires (whether or not he has advanced that argument previously).

(6)At subsequent reviews the judicial officer need not hear arguments as to fact or law which have been heard previously.

(7)On a review at a hearing at which the accused is legally represented, the judicial officer may, if the accused consents, authorise the keeping of the accused in naval custody for a period of not more than 28 clear days.

(8)In this section “review” means a review under subsection (1) above.]

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Modifications etc. (not altering text)

C23S. 47H(6) applied (2.10.2000) by S.I. 2000/2367, rule 23

[F16347J Custody during court-martial proceedings.E+W+S+N.I.
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Amendments (Textual)

(1)Where the accused is kept in naval custody under an order under section 47G(2) of this Act at any time after the commencement of his trial by court-martial, section 47H of this Act (and section 47G as applied by that section) shall apply with the following modifications.

(2)In relation to a review before the announcement of the court-martial’s finding on the charge or every charge against the accused, references to a judicial officer shall have effect as references to the judge advocate [F164, unless on an adjournment of the court-martial the judge advocate orders that during the adjournment matters relating to custody are to be dealt with by a judicial officer].

(3)In section 47G(2), after paragraph (d) there shall be inserted— “; or

(e)the accused’s case has been adjourned for inquiries or a report and it appears to the judicial officer that it would be impracticable to complete the inquiries or make the report without keeping the accused in naval custody.”

(4)Section 47G(3)(d) does not apply in the case of an accused who is awaiting sentence.

(5)An order under section 47G(2) does not authorise the keeping of the accused in naval custody after he is sentenced by the court-martial.

(6)Subsection (1) above shall cease to apply (but without prejudice to any order already made by virtue of that subsection) if the court-martial is dissolved.]

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Amendments (Textual)

[F16547K Release from custody after charge or during proceedings.E+W+S+N.I.
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Amendments (Textual)

(1)This section applies where, at a hearing under section 47G(1) of this Act or on a review under section 47H(1) of this Act, the judicial officer or judge advocate (as the case may be) does not authorise keeping the accused in naval custody.

(2)Where this section applies, the accused—

(a)subject to paragraph (b) below, shall be released from naval custody forthwith, but

(b)if he is a person to whom section 51 of this Act applies or is subject to this Act by virtue of section 111(3) or (5) of this Act, may be required to comply, before release or later, with such requirements as appear to the judicial officer or judge advocate (as the case may be) to be necessary for the purpose of securing his attendance at any hearing in connection with the offence to which the charge relates.

[F166(2A)On an application made—

(a)by or on behalf of the accused, or

(b)by the commanding officer of the accused,

any requirement imposed under subsection (2)(b) above (including such a requirement as previously varied under this subsection) may be varied or discharged by a judicial officer or, where section 47J(2) of this Act has effect, by the judge advocate in relation to the court-martial.]

(3)A person on whom a requirement has been imposed under subsection (2)(b) above is guilty of an offence if he fails without reasonable cause to attend any hearing to which the requirement relates.

(4)A person guilty of an offence under this section shall be liable to imprisonment for a term not exceeding two years or any less punishment authorised by this Act.

(5)Any such offence shall be treated as if it were an offence under Part I of this Act.]

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Amendments (Textual)

[F16747L Arrest during proceedings.E+W+S+N.I.
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Amendments (Textual)

(1)Except where subsection (3) below applies, the commanding officer of a person subject to this Act (“the accused”) who—

(a)has been charged with, or is awaiting sentence for, an offence under any provision of Part I of this Act, and

(b)is not in naval custody,

may, if satisfied that taking the accused into naval custody is justified, give orders for his arrest.

(2)Subject to subsection (4) below, subsection (3) below applies between the commencement of the trial of the accused by court-martial and the announcement of the court-martial’s finding on the charge or every charge against the accused.

(3)Where this subsection applies, the judge advocate, if satisfied that taking the accused into naval custody is justified, may direct the arrest of the accused; and any person with power to arrest the accused for an offence under Part I of this Act shall have the same power, exercisable in the same way, to arrest him pursuant to a direction under this subsection.

[F168(3A)Where on an adjournment of the court-martial the judge advocate has ordered that during the adjournment matters relating to custody are to be dealt with by a judicial officer, the reference in subsection (3) above to the judge advocate shall have effect as a reference to a judicial officer.]

(4)Subsection (3) above shall cease to apply (but without prejudice to any direction already given by virtue of that subsection) if the court-martial is dissolved.

(5)For the purposes of this section, taking the accused into naval custody is justified if there are substantial grounds for believing that, if not taken into naval custody, he would—

(a)fail to attend any hearing in the proceedings against him,

(b)commit an offence,

(c)injure himself, or

(d)interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person.

(6)Taking the accused into naval custody is also justified for the purposes of this section if—

(a)the accused is a person to whom section 51 of this Act applies, and

(b)he has failed to attend any hearing in the proceedings against him.

(7)A person arrested under subsection (1) above, if kept in naval custody—

(a)shall be treated as being in naval custody under an order under section 47G(2) of this Act, and

(b)shall be brought as soon as practicable before a judicial officer to be dealt with as on a review under section 47H(1) of this Act.

(8)A person arrested under subsection (3) above—

(a)shall be treated as being in naval custody under an order under section 47G(2) of this Act, and

(b)shall be brought as soon as practicable before the judge advocate on whose direction the arrest was made [F169or any judicial officer (unless already before the judge advocate or a judicial officer)], and shall be dealt with by him as on a review under section 47H(1) of this Act.]

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Amendments (Textual)

Modifications etc. (not altering text)

C24S. 47L(1)(7) modified (4.9.2000) by S.I. 2000/2366, art. 3, Sch. para. 7 (with Sch. para. 15)

[F17047M Judicial officers.E+W+S+N.I.
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Amendments (Textual)

(1)Judicial officers shall be appointed for the purposes of this Act by the [F171Judge Advocate General]F171 .

(2)No person shall be appointed under this section unless—

(a)he is qualified under section 53B(2) of this Act for appointment as the judge advocate in relation to a court-martial, F172. . .

(b)he has, and has had for at least five years, in any Commonwealth country or any colony rights and duties similar to those of a barrister or solicitor in England and Wales, and is subject to punishment or disability for breach of professional rules.][F173or]

[F173(c)immediately before his appointment, he holds a relevant judicial appointment in any Commonwealth country or colony and has professional or educational qualifications in law which appear to the [F171Judge Advocate General]F171 to be appropriate.]

[F174(3)In subsection (2)(c), “relevant judicial appointment”, in relation to a Commonwealth country or colony, means an appointment by virtue of which he is capable of exercising, in criminal proceedings in that country or colony, functions similar to the functions exercisable, in criminal proceedings in England and Wales, by a judge of the Supreme Court, a Circuit judge or a District Judge (Magistrates’ Courts).]

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Amendments (Textual)

F172Word in s. 47M(2)(a) repealed (1.10.2001) by 2001 c. 19, ss. 34, 38, Sch. 6 Pt. 6 para. 36(2), Sch. 7 Pt. 7; S.I. 2001/3234, art. 2 (subject to transitional provisions in art. 3)

F173S. 47M(2)(c) and the word “or” immediately preceding it inserted (1.10.2001) by 2001 c. 19, s. 34, Sch. 6 Pt. 6 para. 36(2); S.I. 2001/3234, art. 2 (subject to transitional provisions in art. 3)

F174S. 47M(3) inserted (1.10.2001) by 2001 c. 19, s. 34, Sch. 6 Pt. 6 para. 36(3); S.I. 2001/3234, art. 2 (subject to transitional provisions in art. 3)

[F17547N Custody rules.E+W+S+N.I.
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Amendments (Textual)

(1)The Secretary of State may make rules with respect to proceedings—

(a)on an application under section 47D of this Act;

(b)under section 47G(1) of this Act;

(c)on a review under section 47H(1) of this Act.

[F176(d)on an application under section 47K(2A) of this Act.]

(2)Rules under this section may in particular make provision with respect to—

(a)arrangements preliminary to the proceedings;

(b)the representation of the person to whom the proceedings relate;

(c)the admissibility of evidence;

(d)procuring the attendance of witnesses;

(e)the immunities and privileges of witnesses;

(f)the administration of oaths;

(g)circumstances in which a review under section 47H(1) of this Act may be carried out without a hearing;

(h)the use for the purposes of the proceedings of live television links or similar arrangements, including the use of such a link or other arrangement as a means of satisfying the requirement of section 47D(2)(b), 47G(1) or 47L(7)(b) or (8)(b) of this Act for a person to be brought before a judicial officer or judge advocate;

(i)the appointment of persons to discharge administrative functions under the rules.

(3)Rules under this section shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.]

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Amendments (Textual)

Modifications etc. (not altering text)

C25S. 47N modified (4.9.2000) by S.I. 2000/2366, art. 3, Sch. para. 7 (with Sch. para. 15)

JurisdictionE+W+S+N.I.

48 Jurisdiction of courts-martial.E+W+S+N.I.

(1)Subject to the provisions of this section, any offence under Part I of this Act may be tried and punished by court-martial; and a court-martial shall have jurisdiction to try any such offence whether committed within the United Kingdom or elsewhere.

(2)A person shall not be tried by court-martial by virtue of section forty-two of this Act for a civil offence of treason, murder, manslaughter, treason-felony F177...[F178or an offence under section 1 of the Geneva Conventions Act 1957]. . . [F179or an offence under section 1 of the M9Biological Weapons Act 1974][F180or an offence under section 2 or 11 of the Chemical Weapons Act 1996][F181or an offence under section 51 or 52 of the International Criminal Court Act 2001]committed on shore within the United Kingdom; and for the purposes of this subsection an offence of murder or manslaughter [F182, or an offence under section 1 of the Geneva Conventions Act 1957 or section 51 of the International Criminal Court Act 2001 consisting of the killing of a person,]. . .shall be deemed to have been committed at the place of the commission of the act or the occurrence of the neglect which caused the death, irrespective of the place of the death. [F183In this subsection the references to murder shall apply also to aiding, abetting, counselling or procuring suicide].

(3)Except as provided by subsection (3) of section thirty-eight of this Act, a person who commits an offence under that section in relation to a court-martial shall not be dealt with by that court for that offence.

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Amendments (Textual)

F178Words in s. 48(2) inserted (1.9.2001) by 2001 c. 17, s. 74(2)(a) (with ss. 56(2), 63(2), 78); S.I. 2001/2161, art. 2

F180Words in s. 48(2) inserted (16.9.1996) by 1996 c. 6, s. 35(c) (with s. 37); S.I. 1996/2054, art. 2

F181Words in s. 48(2) inserted (1.9.2001) by 2001 c. 17, s. 74(2)(b) (with ss. 56(2), 63(2), 78); S.I. 2001/2161, art. 2

F182Words in s. 48(2) inserted (1.9.2001) by 2001 c. 17, s. 74(3) (with ss. 56(2), 63(2), 78); S.I. 2001/2161, art. 2

Marginal Citations

F18449. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W+S+N.I.

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Amendments (Textual)

F184S. 49 repealed (1.4.1997 with savings) by 1996 c. 46, ss. 5, 35(2), Sch. 1 para. 12, Sch. 7 Pt. I; S.I. 1997/304, art. 2 (with art. 3)

F18550. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W+S+N.I.

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Amendments (Textual)

F185S. 50 repealed (1.4.1997 with savings) by 1996 c. 46, ss. 8, 35(2), Sch. 1 para. 12, Sch. 7 Pt. I; S.I. 1997/304, art. 2 (with art. 3)

51 Jurisdiction to try offenders no longer subject to this Act.E+W+S+N.I.

(1)Subject to the provisions of . . . F186 the next following section, a person who has ceased to be subject to this Act may be tried under this Part of this Act for any offence committed while subject to this Act, and [F187if arrested under section 45 of this Act may for that purpose be kept in naval, military or air-force custody]F187 , as if he had not ceased to be subject thereto.

(2) . . . F188

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Amendments (Textual)

52 Limitation of time for trial.E+W+S+N.I.

[F189(1)Where by virtue of any enactment proceedings on indictment for any civil offence must be brought within a limited period, a person shall not be tried for that offence under section 42 of this Act unless the trial is begun within that period.]

(2)Without prejudice to the foregoing subsection, but subject to the provisions of subsection (3) of this section, a person shall not be tried by virtue of section fifty-one of this Act for an offence committed while subject to this Act unless the trial is begun within three months [F190or, in the case of trial by court-martial, six months] after he ceased to be subject thereto.

[F191(3)[F192Subsection (2)] above shall not apply to an offence of mutiny or desertion; [F192or, without prejudice to subsection (1) above, to a civil offence punishable under section 42 of this Act where the civil offence is alleged to have been committed outside the United Kingdom and the Attorney General consents to the trial.]]

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Amendments (Textual)

F19352A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W+S+N.I.

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Amendments (Textual)

F193S. 52A repealed (1.4.1997 with savings) by 1996 c. 46, ss. 8, 35(2), Sch. 1 para. 12, Sch. 7 Pt. I; S.I. 1997/304, art. 2 (with art. 3)

[F194 Investigation and summary trial]E+W+S+N.I.

[F19552B Investigation of charges by commanding officerE+W+S+N.I.

(1)An allegation that a person subject to this Act (“the accused”) has committed an offence against any provision of this Act shall be reported, in the form of a charge, to his commanding officer.

(2)A commanding officer shall investigate a charge reported to him under subsection (1) above.

(3)If, in the course of investigating a charge, the commanding officer considers it appropriate to do so, he may amend the charge or substitute another charge for it and treat the amended or substituted charge as if that charge had been reported to him under subsection (1) above.

(4)If, in the course of investigating a charge, it appears to the commanding officer that proceedings in respect of the matters to which the charge relates could be, and in the interests of the better administration of justice should be, taken against the accused otherwise than under this Act he may stay further proceedings with respect to the charge.

(5)After investigating a charge, the commanding officer may, subject to [F196subsections (6) and (6A)] below—

(a)dismiss the charge;

(b)refer the charge to higher authority; or

(c)try the accused summarily.

[F197(6)The commanding officer may not try summarily any charge which is not capable of being tried summarily.

(6A)The commanding officer may not try summarily any charge against an officer unless—

(a)the commanding officer is of or above the rank of commander,

(b)the rank of the commanding officer is at least two ranks higher than that of the accused, and

(c)the accused is below the rank of captain.

(6B)For the purposes of subsection (6A) above, the holding by any person of any acting rank other than that of commodore is to be disregarded; and in this subsection “acting rank” means rank of any description (however called) such that under Queen’s Regulations a commanding officer has power to order the holder to revert from that rank.]

[F198(7)For the purposes of this Act, a charge is capable of being tried summarily if it is for an offence triable by court-martial under this Act, other than—

(a)an offence listed in subsection (8) below (offences which, before the passing of the Human Rights Act 1998, were punishable by sentence of death), or

(b)an offence under section 42 of this Act where the civil offence is one for which the sentence is fixed by law as life imprisonment.

(8)The offences are—

(a)an offence under section 2 of this Act, if it consists in an act or omission falling within subsection (1) or (2)(a) of that section and it is charged that it was committed with intent to assist the enemy;

(b)an offence under section 3 of this Act, if it consists in an act or omission falling within subsection (1)(a), (b), (c), (d) or (f) of that section and it is charged that it was committed with intent to assist the enemy;

(c)an offence under section 4 of this Act, if it is charged that it was committed with intent to assist the enemy;

(d)an offence under section 9 of this Act, if it is charged that the mutiny had as its object or one of its objects the refusal or avoidance of any duty or service against or in connection with operations against the enemy, or the impeding of the performance of any such duty or service;

(e)an offence under section 10 of this Act, if it is charged that it was committed with intent to assist the enemy;

(f)an offence under section 42 of this Act, where the civil offence is treason.]]

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Amendments (Textual)

F195Ss. 52B-52G inserted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. I para. 13; S.I. 1997/304, art. 2 (with art. 3)

F196Words in s. 52B(5) substituted (28.2.2002) by 2001 c. 19, s. 17, Sch. 1 para. 9(2); S.I. 2002/345, art. 2 (subject to art. 3)

F197S. 52B(6)-(6B) substituted (28.2.2002) for s. 52B(6) by 2001 c. 19, s. 17, Sch. 1 para. 9(3); S.I. 2002/345, art. 2 (subject to art. 3)

F198S. 52B(7)(8) substituted (11.5.2001) for s. 52B(7) by 2001 c. 19, ss. 34, 39(3)(f), Sch. 6 Pt. 4 para. 22

[F19952C Powers of higher authority.E+W+S+N.I.

(1)Where a charge is referred to higher authority, the higher authority shall refer the case to the prosecuting authority unless he takes one of the steps mentioned in this section in relation to the charge.

(2)The higher authority may refer the charge back to the commanding officer of the accused with a direction to dismiss it or to stay all further proceedings in relation to it; and the commanding officer shall deal with the charge accordingly.

(3)If the charge is against a rating and is capable of being tried summarily, the higher authority may, subject to subsection (4) below, refer it back to the commanding officer of the accused to be so tried.

[F200(3A)If the charge is against an officer below the rank of captain and is capable of being tried summarily, the higher authority may, subject to subsection (4) below—

(a)in a case where the commanding officer satisfies the conditions in section 52B(6A)(a) and (b) of this Act, refer the charge back to the commanding officer to be so tried, and

(b)in any other case, refer the charge to the appropriate superior authority to be so tried.]

(4)If the charge has been referred to the higher authority as a result of an election for court-martial trial, and that election has not been withdrawn with leave, he may not refer the charge back to the commanding officer [F201or appropriate superior authority]F201 to be tried summarily.

(5)F202. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

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Amendments (Textual)

F199Ss. 52B-52G inserted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. I para. 13; S.I. 1997/304, art. 2 (with art. 3)

F200S. 52C(3A) inserted (28.2.2002) by 2001 c. 19, s. 17, Sch. 1 para. 10; S.I. 2002/345, art. 2 (subject to art. 3)

F202S. 52C(5) repealed (28.2.2002) by 2001 c. 19, s. 38, Sch. 7 Pt. 1; S.I. 2002/345, art. 2 (subject to art. 3)

[F20352D Summary trial.E+W+S+N.I.

(1)This section applies where a charge is to be tried summarily.

[F204(2)The commanding officer or appropriate superior authority (as the case may be) shall afford the accused the opportunity of electing court-martial trial.]

[F205F204(2A)Where in accordance with regulations under section 52F of this Act two or more charges are together to be tried summarily, any election for court-martial trial must relate to all the charges concerned.]

(3)If the accused [F206elects court-martial trial] and does not withdraw his election with leave, the commanding officer [F207or appropriate superior authority] shall refer the charge to higher authority with a view to the trial of the accused by court-martial.

[F208(4)If a charge has been referred to higher authority as a result of an election for court-martial trial, and that election is withdrawn with leave, the higher authority shall—

(a)if the accused is a rating, refer the charge back to the commanding officer of the accused;

[F209(b)if the accused is an officer below the rank of captain whose commanding officer satisfies the conditions in section 52B(6A)(a) and (b), refer the charge back to the commanding officer of the accused;

(c)if the accused is an officer other than one within paragraph (b) above, refer the charge back to the appropriate superior authority;]

F209for the commanding officer or appropriate superior authority to try the charge summarily.]

[F210(4A)[F211Subsection (2) above does not]F211 enable the accused to make a further election for court-martial trial in relation to a charge which has been referred back to the commanding officer or appropriate superior authority under subsection (4) above.

(4B)If, before determining whether the charge is proved, he considers it appropriate to do so, the commanding officer or appropriate superior authority may amend the charge or substitute another charge for it and treat the amended or substituted charge as the charge to be dealt with summarily by him.

(4C)Where under subsection (4B) above a charge is amended or one charge is substituted for another, [F212subsection (2) above]F212 applies in relation to the amended or substituted charge.]

(5)If, in the course of trying the charge, the commanding officer [F213or appropriate superior authority] considers that it should not be tried summarily, he may refer the charge to higher authority.

(6)If the commanding officer [F213or appropriate superior authority] determines that the charge has not been proved, he shall acquit the accused.

(7)If the commanding officer [F213or appropriate superior authority] determines that the charge has been proved, he shall record a finding of guilt and award punishment accordingly.

(8)A commanding officer [F213or appropriate superior authority] shall not have power on a summary trial to award a sentence of dismissal with disgrace from Her Majesty’s service, a sentence of imprisonment or a sentence of detention for any term exceeding three months.

[F214(9)Nothing in this section or section 52C of this Act shall be taken to prevent an officer from acting as both higher authority and appropriate superior authority in relation to a charge.]]

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Amendments (Textual)

F203SS. 52B-52G inserted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. I para. 13; S.I. 1997/304, art. 2 (with art. 3)

F206Words in s. 52D(3) substituted (2.10.2000) by 2000 c. 4, s. 11(5); S.I. 2000/2366, art. 2 (with Sch. para. 15)

F207Words in s. 52D(3) inserted (28.2.2002) by 2001 c. 19, s. 17, Sch. 1 para. 11(4); S.I. 2002/345, art. 2 (subject to art. 3 )

F208S. 52D(4) substituted (28.2.2002) by 2001 c. 19, s. 17, Sch. 1 para. 11(5); S.I. 2002/345, art. 2 (subject to art. 3)

F213Words in s. 52D(5)-(8) inserted (28.2.2002) by 2001 c. 19, s. 17, Sch. 1 para. 11(7); S.I. 2002/345, art. 2 (subject to art. 3)

[F21552E Commanding officers.E+W+S+N.I.

(1)In this Act “the commanding officer”, in relation to a person charged with [F216, or in custody in connection with,] an offence, means the officer in command of the ship or naval establishment to which he belongs at the time of the commission of the offence [F217, while he is in custody in connection with it] or at the time of its investigation or summary trial.

(2)The Defence Council may by regulations make provision—

(a)enabling the powers conferred by this Act on the commanding officer of [F218a person charged with, or in custody in connection with, an offence] to be exercised by other persons of such descriptions as may be specified;

(b)with respect to the delegation by the commanding officer, or other person exercising the powers of a commanding officer by virtue of regulations under paragraph (a) above, of any of his powers to any officer not below the rank of lieutenant or corresponding rank.

(3)An officer to whom any powers are delegated by virtue of subsection (2)(b) above shall not have power to award any punishment other than a fine, stoppages or those described in section 43(1)(m) of this Act.

[F219(3A)Subsection (2)(b) above is without prejudice to section 47F(1)(a) of this Act.]

(4)The reference in subsection (3) above to stoppages does not include a reference to stoppages for personal injury.]

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Amendments (Textual)

F215Ss. 52B-52G inserted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. I para. 13; S.I. 1997/304, art. 2 (with art. 3)

[F22052EE Officers who may act as appropriate superior authoritiesE+W+S+N.I.
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Amendments (Textual)

F220S. 52EE inserted (28.2.2002) by 2001 c. 19, s. 17, Sch. 1 para. 12; S.I. 2002/345, art. 2 (subject to art. 3)

(1)A person may act as appropriate superior authority in relation to a person charged with an offence if—

(a)he is of or above the rank of commander, and

(b)his rank is at least two ranks higher than that of the accused.

(2)The appropriate superior authority in relation to a person charged with an offence shall be appointed by the higher authority.

(3)For the purposes of subsection (1) above, the holding by any person of any acting rank other than that of commodore is to be disregarded; and in this subsection “acting rank” means rank of any description (however called) such that under Queen’s Regulations a commanding officer has power to order the holder to revert from that rank.]

[F22152F Regulations as to summary trial etc.E+W+S+N.I.

(1)The Defence Council may make regulations with respect to the investigation of charges by commanding officers [F222, summary trial and hearings as regards the making of orders under section 91B of this Act (activation of suspended sentence by commanding officer)]F222 .

(2)Regulations under this section may in particular make provision with respect to—

(a)the reporting of a charge to a commanding officer;

(b)the procedure to be followed by a commanding officer investigating a charge;

(c)the amendment or substitution of charges;

(d)the procedure on summary trial [F223and on hearings as regards the making of orders under section 91B of this Act]F223 ;

(e)limitations on the punishments which may be awarded on summary trial by [F224a commanding officer or appropriate superior authority of a specified description;];

[F225(ee)limitations on the orders which may be made, and the directions which may be given, under section 91B of this Act by a commanding officer of a specified description;]

F225(f)limitations on the punishments which may be [F226awarded on summary trial]F226 to a specified description of accused;

(g)requirements for punishments [F227, and orders and directions under section 91B of this Act,]F227 to be approved before taking effect;

[F228(gg)the procedure for making elections under section 85A(2) of this Act and withdrawing such elections;]

(h)the information to be provided to a person afforded an opportunity of electing court-martial trial;

(i)the procedure for electing court-martial trial, including any period within which any such election may be made;

(j)the procedure for requesting leave to withdraw an election for court-martial trial and for withdrawing any such election;

[F229(k)who may act as the higher authority and the appropriate superior authority in specified descriptions of cases;

(l)who is to act as the higher authority and the appropriate superior authority in any particular case.]

(3)A regulation under this section which is inconsistent with the provisions of this Act shall to the extent of the inconsistency be void.]

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Amendments (Textual)

F221Ss. 52B-52G inserted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. I para. 13; S.I. 1997/304, art. 2 (with art. 3)

F224Words in s. 52F(2)(e) substituted (28.2.2002) by 2001 c. 19, s. 17, Sch. 1 para. 13(a); S.I. 2002/345, art. 2 (subject to art. 3)

F229S. 52F(2)(k)(l) substituted (28.2.2002) for s. 52F(2)(k) by 2001 c. 19, s. 17, Sch. 1 para. 13(b); S.I. 2002/345, art. 2 (subject to art. 3)

[F230 The summary appeal courtE+W+S+N.I.

F23152FF The summary appeal court.E+W+S+N.I.

(1)There shall be a court (in this Act referred to as “the summary appeal court”) for the purpose of hearing appeals against findings recorded and punishments awarded on summary trial.

(2)The court shall consist of—

(a)judge advocates appointed under section 52FG of this Act, F232...

(b)officers qualified under section 52FH of this Act to be members of the court [F233, and

(c)warrant officers qualified under an order made by virtue of section 20 of the Armed Forces Act 2001 to be members of the court]

F233(3)The court—

(a)may sit in two or more divisions, and

(b)may sit in any place, whether within or outside the United Kingdom.

(4)There shall be a court administration officer for the court, who shall be an officer (or other person) appointed by the Defence Council.

(5)The court shall sit at such times and in such places as may be determined by the court administration officer.

(6)The court administration officer shall perform such other functions as may be prescribed by rules under section 52FP of this Act.]

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F231S. 52FF and crossheading inserted (2.10.2000) by 2000 c. 4, s. 14(2); S.I. 2000/2366, art. 2 (with Sch. para. 15)

[F23452FG Judge advocates.E+W+S+N.I.
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Amendments (Textual)

(1)Judge advocates in relation to the summary appeal court shall be appointed by the [F235Judge Advocate General]F235 .

(2)No person shall be appointed under this section unless he is qualified under section 53B(2) of this Act for appointment as the judge advocate in relation to a court-martial.]

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

[F23652FH Officers qualified for membership of summary appeal court.E+W+S+N.I.
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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

(1)Subject to subsections (2) and (3) below, an officer is qualified under this section for membership of the summary appeal court if he is a naval officer of or above the rank of lieutenant who has held a commission in any of Her Majesty’s naval, military, or air forces for a period of not less than three years or periods amounting in the aggregate to not less than three years.

(2)Subject to subsection (3) below, rules under section 52FP of this Act may specify circumstances in which any other naval officer or a military or air-force officer is qualified under this section for membership of the court.

(3)The following are not qualified under this section for membership of the court—

(a)the court administration officer,

(b)an officer under the command of the court administration officer,

(c)the prosecuting authority,

(d)any person who has a general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990,

(e)an advocate in Scotland or a solicitor who has a right of audience in the Court of Session or the High Court of Justiciary,

(f)a member of the Bar of Northern Ireland,

(g)a person who has in any Commonwealth country rights and duties similar to those of a barrister or solicitor in England and Wales, and is subject to punishment or disability for breach of professional rules, or

(h)any person who is, or has at any time during the preceding five years been, a member of the Royal Navy Regulating Branch.

(4)In this section—

  • air-force officer” means an officer belonging to Her Majesty’s air forces and subject to air-force law;

  • military officer” means an officer belonging to Her Majesty’s military forces and subject to military law; and

  • naval officer” means an officer belonging to Her Majesty’s naval forces and subject to this Act.]

[F23752FJ Constitution of summary appeal court for appeals.E+W+S+N.I.
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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

(1)For the purpose of hearing an appeal, the summary appeal court shall consist of—

(a)one of the judge advocates appointed under section 52FG of this Act, and

[F238(b)an officer qualified under section 52FH of this Act for membership of the court, and

(c)a third person who is either—

(i)an officer qualified under that section, or

(ii)a warrant officer qualified under an order made by virtue of section 20 of the Armed Forces Act 2001,

for membership of the court.]

F238(2)Subsection (1) above has effect subject to any provision made by virtue of section 52FP of this Act [F239or section 20 of the Armed Forces Act 2001 (eligibility of warrant officers to be members of summary appeal courts)]F239 .

(3)The judge advocate for any appeal shall be specified by or on behalf of the [F240Judge Advocate General]F240 .

(4)The other members of the court for any appeal shall be specified by or on behalf of the court administration officer.

(5)In specifying members of the court under subsection (4) above the person doing so shall ensure that at least one member of the court for any appeal is of or above the rank of commander.

(6)At any sitting of the court, the most senior member of the court at that sitting shall preside.]

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

[F24152FK Right of appeal.E+W+S+N.I.
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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

(1)Any person in respect of whom—

(a)a charge has been tried summarily, and

(b)a finding of guilt has been recorded,

may appeal to the summary appeal court against the finding or against any punishment awarded (or against both).

(2)Subject to subsection (3) below, any appeal must be brought within the period of fourteen days beginning with the date on which the punishment was awarded (“the initial period”) or within such longer period as the court may (before the end of the initial period) allow.

(3)The court may at any later time give leave for an appeal to be brought.

(4)On any appeal under this section, the respondent shall be the prosecuting authority.]

[F24252FL Hearing of appeals.E+W+S+N.I.
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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

(1)An appeal under section 52FK of this Act against a finding shall be by way of a rehearing of the charge.

(2)An appeal under section 52FK of this Act which relates only to the punishment awarded shall be by way of a rehearing in relation to the award of punishment.

(3)Except in such cases as may be prescribed by rules under section 52FP of this Act, appeals shall be heard in open court.

(4)Proceedings of the summary appeal court shall be conducted in accordance with the law of England and Wales.

(5)Rulings and directions on questions of law (including questions of procedure and practice) shall be given by the judge advocate.

(6)Any directions given by the judge advocate shall be binding on the court.]

[F24352FM Powers of court.E+W+S+N.I.
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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

(1)On an appeal against a finding of guilt, the summary appeal court—

(a)may confirm or quash the finding, or

(b)in a case where the officer who conducted the summary trial could validly have recorded a finding that another charge had been proved, may substitute for the finding a finding that that other charge has been proved.

(2)Where the court quashes a finding—

(a)the court shall quash any punishment which relates only to that finding (or to that and one or more other findings which are also quashed), and

(b)the court may vary any punishment which relates both to that and one or more other findings so as to award any punishment which—

(i)it would have been within the powers of the officer who conducted the summary trial to award, and

(ii)in the opinion of the court, is no more severe than the punishment originally awarded.

(3)Where, on an appeal against a finding of guilt, the court confirms the finding or substitutes for it a finding that another charge has been proved, the court may vary the punishment awarded at the summary trial so as to award any punishment which—

(a)it would have been within the powers of the officer who conducted the summary trial to award, and

(b)in the opinion of the court, is no more severe than that originally awarded.

(4)On an appeal against the punishment awarded, the court—

(a)may confirm the punishment awarded at the summary trial, or

(b)may substitute any other punishment which—

(i)it would have been within the powers of the officer who conducted the summary trial to award, and

(ii)in the opinion of the court, is no more severe than that originally awarded.

(5)Any punishment awarded by the court shall have effect as if awarded on the day on which the original punishment was awarded on summary trial of the charge.

(6)Any finding substituted or sentence awarded by the court shall be treated for all purposes as having been awarded or made by the officer who conducted the summary trial.]

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Modifications etc. (not altering text)

C26S. 52FM(1)(b) modified (2.10.2000) by S.I. 2000/2370, rule 46(4)

[F24452FN Making of, and appeals from, decisions of court.E+W+S+N.I.
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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

(1)Subject to section 52FL(5) of this Act, any decision of the summary appeal court when constituted as mentioned in section 52FJ(1) of this Act shall be determined by a majority of the votes of the members of the court.

(2)The person who brought the appeal may question any judgment of the summary appeal court on the ground that it is wrong in law or is in excess of jurisdiction, by applying to the summary appeal court to have a case stated for the opinion of the High Court in England and Wales.]

[F24552FP Rules of summary appeal court.E+W+S+N.I.
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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

(1)The Secretary of State may make rules for the purpose of regulating the practice and procedure to be followed in the summary appeal court.

(2)Rules under this section may, in particular, make provision—

(a)as to the practice and procedure of the court in exercising functions preliminary to or incidental to the hearing of appeals under section 52FK of this Act;

(b)as to the bringing and abandonment of appeals;

(c)as to the procedure for applying for leave under section 52FK(2) or (3) of this Act;

(d)as to the procedure for applying for leave, or making a reference, under section 71B(5A) or (5B) of this Act;

(e)as to circumstances in which the jurisdiction of the court may be exercised by a judge advocate appointed under section 52FG of this Act sitting alone;

(f)enabling an uncontested appeal to be determined without a hearing;

(g)as to the convening and constitution of the court to hear any appeal;

(h)as to circumstances in which officers otherwise qualified under section 52FH of this Act are ineligible to hear particular appeals;

(i)enabling the appellant to object to members of the court;

(j)as to the representation of the appellant on the hearing of appeals under section 52FK of this Act and at any preliminary proceedings;

(k)as to the admissibility of evidence;

(l)as to the rehearing of an appeal where any member of the court originally constituted to hear it has been unable to continue hearing the appeal;

(m)as to procuring the attendance of witnesses at the hearing of appeals and at any preliminary proceedings;

(n)as to the administration of oaths;

(o)as to the recording of the proceedings of the court and custody of records of the proceedings;

(p)as to making copies of the records of proceedings available and as to the fees payable for such copies;

(q)as to the procedure for applying to have a case stated under section 52FN(2) of this Act.

(3)Rules under this section may provide for any enactment which relates to the practice or procedure of courts-martial or to the admissibility of evidence in courts-martial to apply in relation to the court with such modifications as may be specified.

(4)Rules under this section shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.]

[F24652FQ Administration of oaths to members of summary appeal court.E+W+S+N.I.
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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

(1)Every member of the summary appeal court shall, before first sitting as a member of the court, have administered to him by the prescribed person in the prescribed manner an oath in the prescribed form.

(2)In subsection (1) above “prescribed” means prescribed by the Secretary of State by order made by statutory instrument.

(3)An order made under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.]

[F24752FR Privileges of witnesses and others.E+W+S+N.I.
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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

A witness before the summary appeal court or any other person whose duty it is to attend on or before the court shall be entitled to the same immunities and privileges as a witness before the High Court in England and Wales.]

[F248Disciplinary courts]E+W+S+N.I.

52G Disciplinary courts.E+W+S+N.I.

F249. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F249S. 52G repealed (28.2.2002) by 2001 c. 19, ss. 18, 38, Sch. 7 Pt. 1; S.I. 2002/345, art. 2 (subject to art. 3)

[F250 The prosecuting authorityE+W+S+N.I.

52H The prosecuting authority.E+W+S+N.I.
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Amendments (Textual)

(1)Her Majesty may appoint a person as the prosecuting authority for the Royal Navy; and in this Act “the prosecuting authority” means the person so appointed.

(2)A person may be appointed as the prosecuting authority only if the person—

(a)has a ten year general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990 (c. 41);

(b)is an advocate or solicitor in Scotland of at least ten years' standing;

(c)is a member of the Bar of Northern Ireland, or a solicitor of the Court of Judicature of Northern Ireland, of at least ten years' standing; or

(d)has in a relevant territory rights and duties similar to those of a barrister or solicitor in England and Wales, has had those rights and duties for at least ten years, and is subject to punishment or disability for breach of professional rules.

(3)The prosecuting authority shall hold and vacate office in accordance with the terms of that authority's appointment.

(4)In this section “relevant territory” means—

(a)any of the Channel Islands;

(b)the Isle of Man;

(c)a country other than the United Kingdom that is a member of the Commonwealth; or

(d)a British overseas territory.F251]

F25252I Functions of the prosecuting authority.E+W+S+N.I.

(1)This section applies where a case has been referred to the prosecuting authority.

(2)If the case has been referred to him as a result of an election for court-martial trial, and that election is withdrawn with leave, the prosecuting authority shall refer the case to the commanding officer of the accused for the preliminary charge to be tried summarily.

(3)In subsection (2) above “the preliminary charge” means the charge which would have been tried summarily had the accused not elected court-martial trial.

(4)If the prosecuting authority considers that court-martial proceedings under this Act should be instituted, he shall determine any charge to be preferred and F253... prefer any such charge.

(5)The prosecuting authority shall, in accordance with rules under section 58 of this Act, notify the commanding officer of the accused and a court administration officer of any charge preferred; and the commanding officer shall, in accordance with any such rules, inform the accused accordingly.

(6)The prosecuting authority shall have the conduct of any court-martial proceedings under this Act against the accused.

(7)Without prejudice to any other power of his in relation to the conduct of the proceedings, the prosecuting authority may, in accordance with rules under section 58 of this Act—

(a)amend, or substitute another charge or charges for, any charge preferred;

(b)prefer an additional charge, or additional charges, against the accused;

(c)discontinue proceedings on any charge.

(8)The powers mentioned in subsection (7)(a) above may be exercised in relation to an amended or substituted charge as well as in relation to any charge preferred by the prosecuting authority.

[F254(8A)If the case has been referred to the prosecuting authority as a result of an election for court-martial trial, the prosecuting authority may not—

(a)determine under subsection (4) above that a charge which is not capable of being tried summarily is to be preferred,

(b)substitute, before the commencement of the trial, any charge which is not capable of being tried summarily for any charge preferred against the accused, or

(c)prefer any additional charge against the accused before the commencement of the trial,

unless the accused has given his written consent.]

F254(9)The prosecuting authority may not exercise any power mentioned in subsection (7)(a) or (c) above in relation to any charge against the accused after the commencement of the trial of that charge unless the court-martial gives him leave to do so.

(10)If, before the commencement of the trial of a charge against the accused (“the original charge”), the prosecuting authority exercises the power mentioned in subsection (7)(b) above, he may, in accordance with rules under section 58 of this Act, direct any additional charge to be tried by the court-martial convened to try the original charge; and where he does so, subsection (5) above shall apply with such exceptions and modifications as may be prescribed.

(11)The prosecuting authority may not exercise the power mentioned in subsection (7)(b) above after the commencement of the trial of a charge against the accused unless the court-martial gives him leave to do so; and where the prosecuting authority exercises that power with the leave of the court-martial, the court may try any additional charge preferred.

[F255(12)If the prosecuting authority—

(a)decides not to prefer any charge referred to him, or

(b)before the commencement of the trial of any charge preferred by him, discontinues proceedings on that charge,

he may direct that the accused shall not be liable to be tried summarily or by court-martial for the offence charged.]

(13)If, after the commencement of the trial of any charge, the prosecuting authority discontinues proceedings on that charge, the court-martial may give a direction such as is mentioned in subsection (12) above.

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Amendments (Textual)

F252Ss. 52H-52J inserted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. II para. 16; S.I. 1997/304, art. 2 (with art. 3)

Modifications etc. (not altering text)

52II[F257Referral of case to commanding officerF257]E+W+S+N.I.
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Amendments (Textual)

(1)F258. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)F258. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F259(2A)Where—

(a)a case has been referred to the prosecuting authority otherwise than as a result of an election for court-martial trial,

(b)the prosecuting authority—

(i)in respect of the case or part of the case, does not determine any charge to be preferred, or

(ii)before the commencement of the trial of any charge preferred, discontinues proceedings on that charge, and

(c)the accused is below the rank of captain,

the prosecuting authority may refer the case, or the part concerned, back to the commanding officer of the accused.]

[F260(3)Where a case is referred to a commanding officer under this section, he shall deal with such charge as he considers appropriate in relation to the case as if it had been reported to him under section 52B(1) of this Act.

(4)Where part of a case is referred to a commanding officer under this section, he shall deal with such charge as he considers appropriate in relation to that part of the case as if it had been reported to him under section 52B(1) of this Act.F260]]

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Amendments (Textual)

F260S. 52II(3)(4) substituted (18.7.2008) for s. 52II(3) by The Armed Forces (Alignment of Service Discipline Acts) Order 2008 (S.I. 2008/1694, art. 21(4) (with Sch. para. 2)

52IJ Power of prosecuting authority to advise police forcesE+W+S+N.I.
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Amendments (Textual)

F261S. 52IJ inserted (28.2.2002) by 2001 c. 19, s. 17, Sch. 1 para. 15; S.I. 2002/345, art. 2 (subject to art. 3)

(1)The prosecuting authority may give advice to police forces on all matters relating to offences under this Act (including offences under the Reserve Forces Act 1996 which by virtue of subsection (1) of section 103 of that Act are treated for the purposes mentioned in that subsection as being offences under this Act).

(2)In this section “police force” means any of the following—

(a)the Royal Navy Regulating Branch;

(b)the Royal Air Force Police;

(c)the Royal Military Police;

(d)the Ministry of Defence Police;

(e)any police force maintained under section 2 of the Police Act 1996 (police forces in England and Wales outside London);

(f)the metropolitan police force;

(g)the City of London police force;

(h)any police force maintained under or by virtue of section 1 of the Police (Scotland) Act 1967;

(i)the Police Service of Northern Ireland;

(j)the British Transport Police;

(k)F262. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

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Amendments (Textual)

F26352J Prosecuting officers.E+W+S+N.I.

(1)The prosecuting authority may delegate any of his functions to officers appointed by him as prosecuting officers.

(2)An officer shall not be appointed as a prosecuting officer unless he is—

(a)a person who has a general qualification within the meaning of section 71 of the M10Courts and Legal Services Act 1990;

(b)an advocate or solicitor in Scotland; or

(c)a member of the Bar of Northern Ireland or a solicitor of the Supreme Court of Northern Ireland.]

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Amendments (Textual)

F263Ss. 52H-52J inserted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. II para. 16; S.I. 1997/304, art. 2 (with art. 3)

Marginal Citations

Constitution of courts-martialE+W+S+N.I.

F26453. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W+S+N.I.

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Amendments (Textual)

[F26553A Court administration officers.E+W+S+N.I.
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Amendments (Textual)

F265Ss. 53A, 53B and 53C inserted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 51; S.I. 1997/304, art. 2 (with art. 3)

In this Act—

  • court administration officer” means an officer (or other person) appointed by the Defence Council to order courts-martial and perform such other functions as may be prescribed by rules under section 58 of this Act; and

  • the court administration officer”, in relation to a court-martial, means the court administration officer who ordered the court-martial and includes his successor or any person for the time being exercising his or his successor’s functions.]

F26653B Judge advocates.E+W+S+N.I.

(1)In this Act “the judge advocate”, in relation to a court-martial, means the judge advocate appointed by or on behalf of the [F267Judge Advocate General]F267 to be a member of the court-martial.

(2)No person shall be appointed as the judge advocate unless he is—

[F268(a)a person who satisfies the judicial-appointment eligibility condition on a 5-year basis;]

F268(b)an advocate in Scotland of at least five years’ standing or a solicitor who has had a right of audience in the Court of Session or the High Court of Justiciary for at least five years; or

(c)a member of the Bar of Northern Ireland of at least five years’ standing.

(3)Rulings and directions on questions of law (including questions of procedure and practice) shall be given by the judge advocate.

(4)Any directions given by the judge advocate shall be binding on the court.

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Amendments (Textual)

F266Ss. 53A, 53B and 53C inserted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 51; S.I. 1997/304, art. 2 (with art. 3)

F26953C Ordering of courts-martial.E+W+S+N.I.

(1)On being notified by the prosecuting authority of the charge preferred, a court administration officer shall order a court-martial.

(2)The order assembling the court-martial shall specify—

(a)the date, time and place at which the court-martial is to sit;

(b)the officers who are to be members of the court-martial;

(c)which of those officers is to be president of the court-martial;

[F270(cc)any warrant officers who are to be members of the court-martial;]

(d)any other officers [F271or warrant officers] appointed for the purpose of filling vacancies,

and shall state that a judge advocate appointed by or on behalf of the [F272Judge Advocate General]F272 is to be a member of the court-martial.

(3)At any time before the commencement of the trial, the court administration officer may, in accordance with rules under section 58 of this Act, amend or withdraw the order assembling the court-martial.

(4)The following shall not be eligible to be members of a court-martial for the trial of a charge—

(a)the court administration officer;

(b)an officer who at any time between the date on which the preliminary charge was reported to the commanding officer of the accused and the date of the trial has been the commanding officer of the accused;

(c)the higher authority to whom the preliminary charge against the accused was referred;

(d)any other officer who has investigated the subject matter of the charge against the accused;

(e)any other officer [F273or warrant officer] who under this Act has held, or has acted as one of the persons holding, an inquiry into matters relating to the subject matter of the charge against the accused.

(5)In subsection (4) above “the preliminary charge” means the charge referred to higher authority by the commanding officer of the accused.

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Amendments (Textual)

F269Ss. 53A, 53B and 53C inserted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 51; S.I. 1997/304, art. 2 (with art. 3)

F271Words in s. 53C(2)(d) inserted (28.2.2002) by 2001 c. 19, s. 19, Sch. 2 para. 15(2)(b); S.I. 2002/345, art. 2 (subject to art. 3)

F273Words in s. 53C(4)(e) inserted (28.2.2002) by 2001 c. 19, s. 19, Sch. 2 para. 15(3); S.I. 2002/345, art. 2 (subject to art. 3)

[F27454 Composition of courts-martialE+W+S+N.I.
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Amendments (Textual)

F274S. 54 substituted (28.2.2002) by 2001 c. 19, s. 19, Sch. 2 para. 16; S.I. 2002/345, art. 2 (subject to art. 3)

(1)A court-martial shall consist of—

(a)the president, who shall be a naval officer,

(b)the judge advocate, and

(c)not less than four nor more than eight other persons, of whom—

(i)two shall each be either a naval officer or a naval warrant officer, and

(ii)the rest shall be naval officers.

(2)The president of a court-martial shall not be below the rank of captain, and in the case of a court-martial for the trial of an officer of flag rank shall be an officer of flag rank.

(3)An officer shall not be appointed under subsection (1)(c) above as a member of a court-martial unless—

(a)he is of or above the rank of lieutenant and has held a commission in any of Her Majesty’s naval, military or air forces for a period of not less than three years, or for periods amounting in the aggregate to not less than three years, or

(b)immediately before he received his commission, he was a warrant officer in any of those forces.

(4)The officers and warrant officers appointed members of a court-martial shall not all belong to the same ship or naval establishment.

(5)The members appointed under subsection (1)(c) above—

(a)shall not include any warrant officer, unless the court-martial is for the trial of a person of a rank or rate below that of a warrant officer,

(b)shall not include any officer who qualifies under subsection (3) above only by virtue of paragraph (b) of that subsection, unless the court-martial is for the trial of a person of a rank or rate below that which the officer held immediately before he received his commission,

(c)in the case of a trial of an officer of flag rank, shall be of or above the rank of captain,

(d)in the case of a trial of a commodore or captain, shall be of or above the rank of commander,

(e)in the case of a trial of a commander, shall include at least two members who are of or above the rank of commander.

(6)If, in the opinion of the court administration officer, the necessary number of naval officers or naval warrant officers having suitable qualifications is not, with due regard to the public service, available for appointment under subsection (1)(c) above, he may appoint under that provision—

(a)any military or air-force officer having qualifications corresponding to those required for a naval officer, or

(b)where a naval warrant officer could be appointed, any military or air-force warrant officer having qualifications corresponding to those required for a naval warrant officer.

(7)In this section—

  • air-force officer” means an officer belonging to Her Majesty’s air forces and subject to air-force law;

  • air-force warrant officer” means a warrant officer belonging to Her Majesty’s air forces and subject to air-force law;

  • military officer” means an officer belonging to Her Majesty’s military forces and subject to military law;

  • military warrant officer” means a warrant officer belonging to Her Majesty’s military forces and subject to military law;

  • naval officer” means an officer belonging to Her Majesty’s naval forces and subject to this Act;

  • naval warrant officer” means a warrant officer belonging to Her Majesty’s naval forces and subject to this Act;

  • warrant officer” does not include an acting warrant officer (that is, a warrant officer whom a commanding officer has power under Queen’s Regulations to order to revert from the rank of warrant officer).]

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Modifications etc. (not altering text)

F27555. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W+S+N.I.

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Amendments (Textual)

56 Place and time of sittings of courts-martial.E+W+S+N.I.

(1)A court-martial shall be held on board such of Her Majesty’s ships or vessels, or at such premises on shore, whether within or out of the United Kingdom, as may be [F276specified in the order assembling the court].

(2)A court-martial may, if it appears to the court to be expedient in the interests of justice, be adjourned, either generally or for the purpose of any part of the proceedings, to any other ship, vessel or place F277. . ..

(3)Without prejudice to the provisions of the last foregoing subsection, a court-martial may, if it appears to the court that an adjournment is desirable for any reason, be adjourned for such period as the court thinks fit:

Provided that except with the consent of the accused and the [F278prosecuting authority][F279, or for the purpose of exercising powers under section 63A of this Act,]F279 the period for which the court may be adjourned under this subsection shall not on any occasion exceed six days.

(4)Subject to the provisions of this section, a court-martial shall, unless prevented by weather or other unavoidable cause, sit from day to day (with the exception of Sundays) until the court has arrived at a finding and, in the case of a conviction, until sentence is pronounced.

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Amendments (Textual)

F276words in s. 56(1) substituted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 54(2); S.I. 1997/304, art. 2 (with art. 3)

F277Words in s. 56(2) repealed (1.4.1997 with savings) by 1996 c. 46, s. 5, 35(2), Sch. 1 Pt. III para. 54(3), Sch. 7 Pt. I; S.I. 1997/304, art. 2 (with art. 3)

F278Words in s. 56(3) substituted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 PT. III para. 54(4); S.I. 1997/304, art. 2 (with art. 3)

[F28056A Dissolution of courts-martial.E+W+S+N.I.
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Amendments (Textual)

F280S. 56A inserted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 55; S.I. 1997/304, art. 2 (with art. 3)

(1)Where, before the commencement of the trial, it appears to the court administration officer necessary or expedient in the interests of the administration of justice that a court-martial be dissolved, he may by order dissolve the court-martial.

(2)Where, after the commencement of the trial, it appears to the judge advocate necessary or expedient in the interests of the administration of justice that a court-martial be dissolved, he may by order dissolve the court-martial.

(3)If after the commencement of the trial the president dies or is otherwise unable to attend, the court-martial shall be dissolved.

(4)Where a court-martial is dissolved the accused may be tried by another court.]

57 Quorum.E+W+S+N.I.

F281(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)The proceedings of a court-martial shall be valid notwithstanding the absence of one or more of the [F282officers] other than the president, so long as the number of [F282officers] present throughout the proceedings is not reduced below four:

Provided that [F283an officer appointed] a member of the court who has been absent for any time during a sitting shall take no further part in the proceedings.

F281(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

F281S. 57(1) and (3) repealed (1.4.1997 with savings) by 1996 c. 46, ss. 5, 35(2), Sch. 1 Pt. III para. 56(2), Sch. 7 Pt. I; S.I. 1997/304, art. 2 (with art. 3)

F282Word in s. 57(2) substituted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 56(3)(a); S.I. 1997/304, art. 2 (with art. 3)

F283Words in s. 57(2) inserted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 56(3)(b); S.I. 1997/304, art. 2 (with art. 3)

Proceedings of courts-martialE+W+S+N.I.

[F28458 Rules.E+W+S+N.I.
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Amendments (Textual)

F284S. 58 substituted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 57; S.I. 1997.304, art. 2 (with art. 3)

(1)The Secretary of State may make rules with respect to—

(a)the investigation, prosecution and trial of, and the awarding of punishment for, offences cognizable by courts-martial;

(b)the review of findings and sentences of courts-martial.

(2)Rules under this section may in particular make provision with respect to—

(a)proceedings preliminary to trials by courts-martial;

(b)the appointment of a judge advocate for any preliminary proceedings;

[F285(ba)appeals against orders or rulings made in preliminary proceedings;]

F285(c)the delegation by court administration officers of any of their functions;

(d)the ordering and composition of courts-martial;

(e)the sittings, adjournment and dissolution of courts-martial;

(f)the procedure to be followed in trials by courts-martial;

(g)the functions of the clerk of the court and the exercise by him of those functions;

(h)the representation of the accused at trials by courts-martial and any preliminary proceedings;

(i)procuring the attendance of witnesses at such trials and any preliminary proceedings;

(j)enabling a court-martial, in such cases and to such extent as may be prescribed by the rules, to amend a charge which is being tried by the court;

(k)enabling a court-martial, where the particulars proved or admitted at the trial differ from those alleged in the charge but are sufficient to support a finding of guilty of the like offence as that charged, to make a finding of guilty subject to exceptions or variations specified in the finding if it appears to the court that the difference is not so material as to have prejudiced the accused in his defence;

(l)directing that the powers conferred by section 7 of the M11Bankers’ Books Evidence Act 1879 (which enables orders to be made for the inspection of bankers’ books for the purposes of legal proceedings) may be exercised for the purposes of a court-martial (whether within or without the United Kingdom) by the commanding officer of the accused or a judge advocate, as well as by the court or a judge within the meaning of that Act;

(m)the forms of orders and other documents to be made for the purposes of any provision of this Act or of rules under this section;

(n)the cases in which, and extent to which, offences may be taken into consideration by a court-martial and the powers of the court in relation to any offences taken into consideration;

[F286(nn)enabling any jurisdiction conferred on a court-martial by virtue of sections 26 to 28 of the Armed Forces Act 2001 to be exercised by the judge advocate sitting alone;]

[F287F286(no)appeals against any orders (including directions) of courts-martial prohibiting or restricting the publication of any matter or excluding the public from any proceedings;]

F287(o)the recording of the proceedings of a court-martial;

(p)the procedure to be followed on review of findings and sentences of courts-martial.

[F288(2A)In subsection (2)(a), (b) and (ba), the references to proceedings preliminary to trials include hearings at which the accused is arraigned.

(2B)Rules made by virtue of subsection (2)(ba) or (no) may confer jurisdiction on the Courts-Martial Appeal Court, and rules under section 49 of the Courts-Martial (Appeals) Act 1968 may make provision about the powers of that court in relation to appeals made by virtue of subsection (2)(ba) or (no).]

F288(3)Rules made by virtue of paragraph (j) of subsection (2) above shall secure that the power to amend charges is not exercisable in circumstances substantially different from those in which indictments are amendable by a civil court in England, or otherwise than subject to the like conditions, as nearly as circumstances admit, as those subject to which indictments are so amendable.

[F289(3A)Rules under this section may make provision as to the application of sections 52I and 52II of this Act in relation to cases where an election for court-martial trial relates to two or more charges.]

(4)Rules under this section which are inconsistent with the provisions of this Act shall to the extent of the inconsistency be void.

(5)Rules under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.]

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Amendments (Textual)

Marginal Citations

[F29058APreliminary hearings as to pleaE+W+S+N.I.
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Amendments (Textual)

(1)Subsections (2) to (4) apply in relation to a charge against a person (“the accused”) preferred by the prosecuting authority.

(2)The accused shall be arraigned at a hearing before a judge advocate.

(3)That hearing may take place at any time before the time when the court-martial that is to try the charge first sits.

(4)The arraignment is to be treated as having occurred before the court-martial.

(5)Rules under section 58 may make provision for and in connection with the making of orders and rulings by a judge advocate at a hearing at which the accused is arraigned, including in particular—

(a)provision corresponding to any provision of, or that may be made by virtue of, sections 31, 33, 34 and 37 of the Criminal Procedure and Investigations Act 1996, subject to such modifications as the Secretary of State considers appropriate;

(b)provision for the variation or discharge of such orders and rulings.

(6)The reference in subsection (1) to a charge preferred by the prosecuting authority includes—

(a)a charge substituted by the prosecuting authority; and

(b)where a charge is amended by the prosecuting authority before the accused is arraigned in respect of it, the charge as so amended.

(7)Nothing in this section applies in relation to a charge preferred or substituted after the time when the court-martial first sits.]

59 Challenge by accused.E+W+S+N.I.

(1)Before the [F291officers appointed] members of a court-martial [F292, and any warrant officers so appointed,] are sworn, the names of the [F293members of] the court shall be read over in the presence of the accused, and he shall be asked whether he objects to [F293any of those members].

(2)Every objection made by the accused in respect of any [F294member]shall be [F295determined by the judge advocate].

[F296(3)If an objection to the president is allowed, the court shall be dissolved.]

(4)If [F297an objection to any other officer appointed a member of the court [F298or to any warrant officer so appointed] is allowed], the member objected to shall retire, and the vacancy shall be filled by the first officer [F299or warrant officer][F300appointed] as a spare member in accordance with the provisions of [F301section 53C] of this Act who is qualified to be and is not already a member of the court.

[F302(4A)If an objection to the judge advocate is allowed, the judge advocate shall retire and another judge advocate shall be appointed by or on behalf of the [F303Judge Advocate General]F303 .]

(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6)After the [F304officers appointed] members of a court-martial [F305, and any warrant officers so appointed,] have been duly sworn, no question as to the constitution of the court shall be raised in the proceedings, but without prejudice to any power of the Courts-Martial Appeal Court or of [F306the [F307reviewing authority]] in a case in which it appears that a substantial miscarriage of justice has occurred by reason of the court not having been duly constituted.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F291Words in s. 59(1) inserted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 58(1)(2)(a); S.I. 1997/304, art. 2 (with art. 3)

F292Words in s. 59(1) inserted (28.2.2002) by 2001 c. 19, s. 19, Sch. 2 para. 17(2); S.I. 2002/345, art. 2 (subject to art. 3)

F293Words in s. 59(1) substituted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 58(2); S.I. 1997/304, art. 2 (with art. 3)

F294Word in s. 59(2) substituted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 58(3)(a); S.I. 1997/304, art. 2 (with art. 3)

F295Words in s. 59(2) substituted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 58(3)(b); S.I. 1997/304, art. 2 (with art. 3)

F296S. 59(3) substituted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 58(4); S.I. 1997/304, art. 2 (with art. 3)

F297S. 59(4): it is provided (1.4.1997 with savings) that, for the words from "objection" to "the member" there shall be substituted the words "an objection to any other officer appointed a member of the court is allowed" by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 58(5)(a); S.I. 1997/304, art. 2 (with art. 3) [Editorial note: it is thought that it was not the drafter's intention to remove the words "the member"]

F298Words in s. 59(4) inserted (28.2.2002) by 2001 c. 19, s. 19, Sch. 2 para. 17(3)(a); S.I. 2002/345, art. 2 (subject to art. 3)

F299Words in s. 59(4) inserted (28.2.2002) by 2001 c. 19, s. 19, Sch. 2 para. 17(3)(b); S.I. 2002/345, art. 2 (subject to art. 3)

F300Word in s. 59(4) substituted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 58(5)(b); S.I. 1997/304, art. 2 (with art. 3)

F301Words in s. 59(4) substituted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 58(5)(c); S.I. 1997/304, art. 2 (with art. 3)

F302S. 59(4A) inserted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 58(6); S.I. 1997/304, art. 2 (with art. 3)

F304Words in s. 59(6) inserted (1.4.1997 with savings) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 58(8)(a); S.I. 1997/304, art. 2 (with art. 3)

F305Words in s. 59(6) inserted (28.2.2002) by 2001 c. 19, s. 19, Sch. 2 para. 17(4); S.I. 2002/345, art. 2 (subject to art. 3)

F306Words substituted by S.I. 1964/488, Sch. 1 Pt. I

F307Words in s. 59(6) substituted (1.4.1997 with savings) by virtue of 1996 c. 46, s. 5, Sch. 1 Pt. III para. 58(8)(b); S.I. 1997/304, art. 2 (with art. 3)