The Armed Forces (Alignment of Service Discipline Acts) Order 2008

EXPLANATORY NOTE

(This note is not part of the Order)

Articles 3, 4, 8 and 9 replace those provisions of the Army Act 1955 and the Air Force Act 1955 (“the 1955 Acts”) and the Naval Discipline Act 1957 (“the 1957 Act”) that confer power to arrest a person for an offence. The new provisions correspond to sections 67 and 69 of the Armed Forces Act 2006 (“the 2006 Act”). In particular they confer a new power (similar to that conferred by section 69 of the 2006 Act) to arrest a person reasonably suspected of being about to commit an offence. Articles 5 to 7 and 10 to 15 make consequential amendments.

Article 16 amends the 1955 Acts and the 1957 Act so that, where a person is brought before a judicial officer after being charged with an offence, the judicial officer may not authorise the keeping of the person in custody solely on the ground that the person has previously absconded after being released from custody. This aligns the relevant provisions with section 106 of the 2006 Act.

Articles 18 and 21 abolish the power of a prosecuting authority, following an election for court-martial trial of a charge, to refer a different charge back to the accused’s commanding officer. However, articles 17 and 20 relax the existing rule that in these circumstances the prosecuting authority may not, without the accused’s consent, prefer a different charge, amend a charge preferred by him or substitute a different charge for such a charge. Instead, the provisions as amended permit the prosecuting authority to prefer a different charge, or to substitute a different charge for a charge which he has preferred, without the accused’s consent, provided that the new charge is one which the accused’s commanding officer could have chosen to deal with if the accused had not elected court-martial trial. The prosecuting authority is also permitted to amend a charge without the accused’s consent. The existing rule that he may not add a charge without the accused’s consent is retained. Section 125(3) of the 2006 Act permits the corresponding powers of the Director of Service Prosecutions to be restricted, in corresponding circumstances, by Court Martial rules made under section 163. Articles 19 and 22 make consequential amendments.

Article 24 amends the 1955 Acts so as to abolish the power of a reviewing authority to activate a suspended sentence of imprisonment or detention, and article 23 makes a consequential amendment. Article 24 also aligns the powers of a military or air-force court-martial in respect of a suspended sentence of detention with those of the Court Martial under section 191 of the 2006 Act, and aligns the powers of such a court-martial in respect of a suspended sentence of imprisonment with those of the Court Martial under Schedule 12 to the Criminal Justice Act 2003 (c. 44) as modified by Schedule 7 to the 2006 Act. Article 25 inserts into the 1955 Acts new provisions for appeals to the Courts-Martial Appeal Court against the activation of a suspended sentences, and appeals in cases where the court-martial had power to activate such a sentence but did not so. The new provisions correspond to section 192 of the 2006 Act.

Article 26 amends the Armed Forces Act 1976 so as to abolish the powers of a reviewing authority to activate a suspended sentence passed by a Standing Civilian Court. Article 27 provides for rights of appeal in relation to the activation of such a sentence.

Article 31 replaces section 91 of the 1957 Act, which confers power to activate a suspended sentence by issuing a committal order, with five new sections, numbered 91 to 91D. The new provisions distinguish between the order activating the sentence and the committal order, which is to be issued under section 81 of the Act rather than (as at present) section 91. Article 29 amends section 81 so as to clarify the circumstances in which a committal order may be issued.

The new sections 91 and 91A inserted into the 1957 Act by article 31 make provision for the activation of suspended sentence by a naval court-martial, and in relation to appeals, which is similar to that made by the 1955 Acts as amended by articles 24 and 25.

The new section 91B of the 1957 Act provides for the activation of a suspended sentence of detention by the offender’s commanding officer, in circumstances corresponding to those in which such a sentence can be activated by a commanding officer under section 193 of the 2006 Act. Article 28 amends section 52F of the 1957 Act so that naval summary discipline regulations may include provision as to the making of orders under section 91B.

Under the 2006 Act a commanding officer cannot activate a sentence passed by a court-martial. Under section 91 of the 1957 Act as it stands, he can; and this power is retained in the new section 91B. Where the sentence was passed by a court-martial and is for more than 90 days, however, a commanding officer can only activate it for 90 days. Under the new section 91C, the remainder of the sentence continues to be suspended, and is not remitted until one year after the activation.

The new section 91D of the 1957 Act makes provision (corresponding to that made by section 195 of the 2006 Act) in relation to appeals against, and the review of, orders under section 91B, and appeals in cases where a commanding officer had power to make such an order but did not do so. As under section 292 of the 2006 Act, a sentence activated under section 91B does not take effect until the offender has had an opportunity to appeal, or he so elects.

Articles 30 and 32 make amendments consequential on those made by articles 29 and 31.

Articles 33 and 34 abolish the powers of courts-martial and reviewing authorities to postpone the date on which a sentence is to take effect.

The Schedule makes transitional provision.