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Armed Forces Act 2006

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Armed Forces Act 2006 is up to date with all changes known to be in force on or before 25 September 2020. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations. Help about Changes to Legislation

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First Group of PartsU.K.Discipline

Part 1U.K.Offences

Assisting an enemy, misconduct on operations etcU.K.

1Assisting an enemyU.K.

(1)A person subject to service law commits an offence if, without lawful excuse, he intentionally—

(a)communicates with an enemy;

(b)gives an enemy information that would or might be useful to the enemy;

(c)fails to make known to the proper authorities any information received by him from an enemy;

(d)provides an enemy with any supplies; or

(e)harbours or protects an enemy other than a prisoner of war.

(2)A person subject to service law who has been captured by an enemy commits an offence if, without lawful excuse, he intentionally serves with or assists the enemy—

(a)in the prosecution of hostilities or of measures likely to influence morale; or

(b)in any other manner not authorised by international law.

(3)A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, and any sentence of imprisonment imposed in respect of the offence may be for life.

Commencement Information

I1S. 1 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I2S. 1 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

2Misconduct on operationsU.K.

(1)A person subject to service law commits an offence if, without reasonable excuse, he—

(a)surrenders any place or thing to an enemy; or

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

(2)Subsections (3) to (5) apply to a person subject to service law who is—

(a)in the presence or vicinity of an enemy;

(b)engaged in an action or operation against an enemy; or

(c)under orders to be prepared for any action or operation by or against an enemy.

(3)A person to whom this subsection applies commits an offence if he fails to use his utmost exertions to carry out the lawful commands of his superior officers.

(4)A person to whom this subsection applies commits an offence if he is on guard duty and posted or ordered to patrol, or is on watch, and—

(a)without reasonable excuse, he sleeps; or

(b)(without having been regularly relieved) he leaves any place where it is his duty to be.

(5)A person to whom this subsection applies commits an offence if, without reasonable excuse, he intentionally communicates with a person who is—

(a)a member of any of Her Majesty's forces or of any force co-operating with them, or

(b)a relevant civilian,

and the communication is likely to cause that person to become despondent or alarmed.

(6)In subsection (5) “relevant civilian” means a person who—

(a)is a civilian subject to service discipline; and

(b)is accompanying a person subject to service law who is—

(i)in the presence or vicinity of an enemy; or

(ii)engaged in an action or operation against an enemy.

(7)A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, and any sentence of imprisonment imposed in respect of the offence may be for life.

Modifications etc. (not altering text)

Commencement Information

I3S. 2 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I4S. 2 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

3Obstructing operationsU.K.

(1)A person subject to service law commits an offence if—

(a)he does an act that is likely to put at risk the success of an action or operation of any of Her Majesty's forces; and

(b)he intends to prevent, or is reckless as to whether he prevents, the success of the action or operation.

(2)A person subject to service law commits an offence if—

(a)without lawful excuse, he does an act that delays or discourages an action or operation of any of Her Majesty's forces; and

(b)he intends to delay or discourage the action or operation.

(3)In this section “act” includes an omission and references to the doing of an act are to be read accordingly.

(4)A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, and any sentence of imprisonment imposed in respect of the offence—

(a)if the offence relates to an action or operation against an enemy, may be for life;

(b)otherwise, must not exceed ten years.

Commencement Information

I5S. 3 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I6S. 3 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

4LootingU.K.

(1)A person within subsection (4) commits an offence if, without lawful excuse—

(a)he takes any property from a person who has been killed, injured, captured or detained in the course of an action or operation of any of Her Majesty's forces or of any force co-operating with them; or

(b)he searches such a person with the intention of taking property from him.

(2)A person within subsection (4) commits an offence if, without lawful excuse—

(a)he takes any property which has been left exposed or unprotected in consequence of—

(i)an action or operation of any of Her Majesty's forces or of any force co-operating with them; or

(ii)an event, or state of affairs, in relation to which such an action or operation is undertaken; or

(b)he searches any place or thing with the intention of taking property of a description mentioned in paragraph (a).

(3)A person within subsection (4) commits an offence if he takes otherwise than for the public service any vehicle, equipment or stores abandoned by an enemy.

(4)A person is within this subsection if he is—

(a)a person subject to service law; or

(b)a civilian subject to service discipline.

(5)A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, and any sentence of imprisonment imposed in respect of the offence—

(a)in the case of an offence under subsection (1) or (2), may be for life;

(b)in the case of an offence under subsection (3), must not exceed seven years.

Commencement Information

I7S. 4 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I8S. 4 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

5Failure to escape etcU.K.

(1)Subsections (2) and (3) apply to a person subject to service law who has been captured by an enemy.

(2)A person to whom this subsection applies commits an offence if—

(a)he is aware of steps that he could take to rejoin Her Majesty's forces;

(b)he could reasonably be expected to take those steps; and

(c)without lawful excuse, he fails to take them.

(3)A person to whom this subsection applies commits an offence if, without lawful excuse, he intentionally prevents or discourages another person subject to service law who has been captured by an enemy from taking any reasonable steps to rejoin Her Majesty's forces.

(4)A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, but any sentence of imprisonment imposed in respect of the offence must not exceed ten years.

Commencement Information

I9S. 5 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I10S. 5 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

MutinyU.K.

6MutinyU.K.

(1)A person subject to service law commits an offence if he takes part in a mutiny.

(2)For the purposes of this section a person subject to service law takes part in a mutiny if—

(a)in concert with at least one other person subject to service law, he—

(i)acts with the intention of overthrowing or resisting authority; or

(ii)disobeys authority in such circumstances as to subvert discipline;

(b)he agrees with at least one other person subject to service law to overthrow or resist authority; or

(c)he agrees with at least one other person subject to service law to disobey authority, and the agreed disobedience would be such as to subvert discipline.

(3)For the purposes of subsection (2)—

(a)authority” means lawful authority in any part of Her Majesty's forces or of any force co-operating with them;

(b)the reference to acting includes omitting to act.

(4)A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, and any sentence of imprisonment imposed in respect of the offence may be for life.

Commencement Information

I11S. 6 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I12S. 6 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

7Failure to suppress mutinyU.K.

(1)A person subject to service law commits an offence if—

(a)he knows that a mutiny is occurring or is intended; and

(b)he fails to take such steps as he could reasonably be expected to take to prevent or suppress it.

(2)For the purposes of this section a mutiny occurs when a person subject to service law, in concert with at least one other person subject to service law—

(a)acts with the intention of overthrowing or resisting authority; or

(b)disobeys authority in such circumstances as to subvert discipline.

(3)A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, and any sentence of imprisonment imposed in respect of the offence may be for life.

Commencement Information

I13S. 7 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I14S. 7 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

Desertion and absence without leaveU.K.

8DesertionU.K.

(1)A person subject to service law commits an offence if he deserts.

(2)For the purposes of this Act a person deserts if he is absent without leave and—

(a)he intends to remain permanently absent without leave; or

(b)he intends to avoid a period of active service.

(3)In this section “active service” means service in—

(a)an action or operation against an enemy;

(b)an operation outside the British Islands for the protection of life or property; or

(c)the military occupation of a foreign country or territory.

(4)A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, and any sentence of imprisonment imposed in respect of the offence—

(a)if the offender intended to avoid a period of active service, may be for life;

(b)otherwise, must not exceed two years.

Commencement Information

I15S. 8 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I16S. 8 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

9Absence without leaveU.K.

(1)A person subject to service law commits an offence if subsection (2) or (3) applies to him.

(2)This subsection applies to a person if he is intentionally or negligently absent without leave.

(3)This subsection applies to a person if—

(a)he does an act, being reckless as to whether it will cause him to be absent without leave; and

(b)it causes him to be absent without leave.

(4)In subsection (3) “act” includes an omission and the reference to the doing of an act is to be read accordingly.

(5)A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, but any sentence of imprisonment imposed in respect of the offence must not exceed two years.

Commencement Information

I17S. 9 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I18S. 9 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

10Failure to cause apprehension of deserters or absenteesU.K.

(1)A person subject to service law commits an offence if—

(a)he knows that another person—

(i)has committed, is committing or is attempting to commit an offence under section 8 (desertion); or

(ii)is committing or attempting to commit an offence under section 9 (absence without leave); and

(b)he fails to take such steps as he could reasonably be expected to take to cause that person to be apprehended.

(2)A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, but any sentence of imprisonment imposed in respect of the offence must not exceed two years.

Commencement Information

I19S. 10 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I20S. 10 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

Insubordination etcU.K.

11Misconduct towards a superior officerU.K.

(1)A person subject to service law commits an offence if—

(a)he uses violence against a superior officer (“B”); and

(b)he knows or has reasonable cause to believe that B is a superior officer.

(2)A person subject to service law commits an offence if—

(a)his behaviour towards a superior officer (“B”) is threatening or disrespectful; and

(b)he knows or has reasonable cause to believe that B is a superior officer.

(3)For the purposes of this section—

(a)the behaviour of a person (“A”) towards another person (“B”) includes any communication made by A to B (whether or not in B's presence);

(b)“threatening” behaviour is not limited to behaviour that threatens violence.

(4)A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, but any sentence of imprisonment imposed in respect of the offence must not exceed—

(a)in the case of an offence under subsection (1), or an offence under subsection (2) of behaviour that is threatening, ten years;

(b)in any other case, two years.

Modifications etc. (not altering text)

Commencement Information

I21S. 11 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I22S. 11 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

12Disobedience to lawful commandsU.K.

(1)A person subject to service law commits an offence if—

(a)he disobeys a lawful command; and

(b)he intends to disobey, or is reckless as to whether he disobeys, the command.

(2)A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, but any sentence of imprisonment imposed in respect of the offence must not exceed ten years.

Commencement Information

I23S. 12 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I24S. 12 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

13Contravention of standing ordersU.K.

(1)A person subject to service law, or a civilian subject to service discipline, commits an offence if—

(a)he contravenes a lawful order to which this section applies; and

(b)he knows or could reasonably be expected to know of the order.

(2)This section applies to standing orders, and other routine orders of a continuing nature, of any of Her Majesty's forces, made for any—

(a)part of Her Majesty's forces;

(b)area or place; or

(c)ship, train or aircraft;

but paragraph (a) of this subsection does not apply in relation to a civilian subject to service discipline.

(3)A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, but any sentence of imprisonment imposed in respect of the offence must not exceed two years.

Commencement Information

I25S. 13 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I26S. 13 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

14Using force against a sentry etcU.K.

(1)A person subject to service law commits an offence if—

(a)he uses force against a member of any of Her Majesty's forces, or of any force co-operating with them, who is—

(i)on guard duty and posted or ordered to patrol;

(ii)on watch; or

(iii)under orders to regulate traffic by land, water or air; or

(b)by the threat of force he compels such a person to let him or any other person pass.

(2)A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, but any sentence of imprisonment imposed in respect of the offence must not exceed two years.

Commencement Information

I27S. 14 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I28S. 14 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

Neglect of duty and misconductU.K.

15Failure to attend for or perform duty etcU.K.

(1)A person subject to service law commits an offence if, without reasonable excuse, he—

(a)fails to attend for any duty;

(b)leaves any duty before he is permitted to do so; or

(c)fails to perform any duty.

(2)A person subject to service law commits an offence if he performs any duty negligently.

(3)A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, but any sentence of imprisonment imposed in respect of the offence must not exceed two years.

Modifications etc. (not altering text)

Commencement Information

I29S. 15 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I30S. 15 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

16MalingeringU.K.

(1)A person subject to service law commits an offence if, to avoid service—

(a)he pretends to have an injury;

(b)by any act he causes himself an injury;

(c)by any act or omission he aggravates or prolongs any injury of his; or

(d)he causes another person to injure him.

(2)A person subject to service law commits an offence if, at the request of another person subject to service law (“B”) and with the intention of enabling B to avoid service—

(a)by any act he causes B an injury; or

(b)by any act or omission he aggravates or prolongs any injury of B.

(3)In this section—

  • injury” includes any disease and any impairment of a person's physical or mental condition, and the reference to injuring is to be read accordingly;

  • service” includes any particular duty or kind of duty.

(4)A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, but any sentence of imprisonment imposed in respect of the offence must not exceed two years.

Commencement Information

I31S. 16 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I32S. 16 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

17Disclosure of information useful to an enemyU.K.

(1)A person subject to service law commits an offence if—

(a)without lawful authority, he discloses information that would or might be useful to an enemy; and

(b)he knows or has reasonable cause to believe that the information would or might be useful to an enemy.

(2)A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, but any sentence of imprisonment imposed in respect of the offence must not exceed two years.

Commencement Information

I33S. 17 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I34S. 17 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

18Making false records etcU.K.

(1)A person subject to service law commits an offence if—

(a)he makes an official record, knowing that it is false in a material respect; and

(b)he knows or has reasonable cause to believe that the record is official.

(2)A person who adopts as his own a record made by another person is for the purposes of subsection (1) to be treated, as well as that other person, as making the record.

(3)A person subject to service law commits an offence if—

(a)with intent to deceive, he tampers with or suppresses an official document; and

(b)he knows or has reasonable cause to believe that the document is official.

(4)A person subject to service law commits an offence if—

(a)with intent to deceive, he fails to make a record which he is under a duty to make; and

(b)he knows or has reasonable cause to believe that the record would, if made, be official.

(5)For the purposes of this section—

(a)record” means a document or an entry in a document;

(b)document” means anything in which information is recorded;

(c)a record or 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 the Crown or is in the service of the Crown.

(6)A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, but any sentence of imprisonment imposed in respect of the offence must not exceed two years.

Commencement Information

I35S. 18 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I36S. 18 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

19Conduct prejudicial to good order and disciplineU.K.

(1)A person subject to service law commits an offence if he does an act that is prejudicial to good order and service discipline.

(2)In this section “act” includes an omission and the reference to the doing of an act is to be read accordingly.

(3)A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, but any sentence of imprisonment imposed in respect of the offence must not exceed two years.

Modifications etc. (not altering text)

Commencement Information

I37S. 19 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I38S. 19 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

20Unfitness or misconduct through alcohol or drugsU.K.

(1)A person subject to service law commits an offence if, due to the influence of alcohol or any drug—

(a)he is unfit to be entrusted with his duty or any duty which he might reasonably expect to be called upon to perform; or

(b)his behaviour is disorderly or likely to bring discredit to Her Majesty's forces.

[F1(1A)For the purposes of subsection (1) a person is to be taken to be unfit to be entrusted with his duty, or a duty which he might reasonably expect to be called upon to perform, if his ability to carry out the duty in question is impaired.]

(2)Subsection (1) does not apply to the influence of a drug on a person (“A”) if—

(a)the drug was taken or administered on medical advice and A complied with any directions given as part of that advice;

(b)the drug was taken or administered for a medicinal purpose, and A had no reason to believe that the drug might impair his ability to carry out the duties mentioned in subsection (1)(a) or (as the case may be) result in his behaving in a way mentioned in subsection (1)(b);

(c)the drug was taken on the orders of a superior officer of A; or

(d)the drug was administered to A on the orders of a superior officer of the person administering it.

(3)In this section—

(a)drug” includes any intoxicant other than alcohol;

(b)a person's “behaviour” includes anything said by him.

(4)In proceedings for an offence under this section, any paragraph of subsection (2) is to be treated as not having applied in relation to the defendant unless sufficient evidence is adduced to raise an issue as to whether it did.

(5)A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, but any sentence of imprisonment imposed in respect of the offence must not exceed two years.

Textual Amendments

Modifications etc. (not altering text)

Commencement Information

I39S. 20 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I40S. 20 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

[F220AExceeding alcohol limit for prescribed safety-critical dutiesU.K.

(1)A person subject to service law (“P”) commits an offence if the proportion of alcohol in P's breath, blood or urine exceeds the relevant limit at a time when P—

(a)is performing, or purporting to perform, a prescribed duty; or

(b)might reasonably expect to be called on to perform such a duty.

(2)In subsection (1) “prescribed duty” means a duty specified, or of a description specified, by regulations; but a duty or description may be specified only if performing that duty (or a duty of that description) with ability impaired by alcohol would result in a risk of—

(a)death;

(b)serious injury to any person;

(c)serious damage to property; or

(d)serious environmental harm.

(3)In this section “the relevant limit”, in relation to a duty specified or of a description specified by regulations, means the limit prescribed by regulations in relation to that duty or duties of that description.

(4)In this section “regulations” means regulations made by the Defence Council for the purposes of this section.

(5)A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, but any sentence of imprisonment imposed in respect of the offence must not exceed two years.]

Textual Amendments

F2S. 20A inserted (8.3.2012 for specified purposes, 1.11.2013 in so far as not already in force) by Armed Forces Act 2011 (c. 18), ss. 10, 32(3); S.I. 2012/669, art. 3(b); S.I. 2013/2501, art. 3(b)

21Fighting or threatening behaviour etcU.K.

(1)A person subject to service law commits an offence if, without reasonable excuse, he fights another person.

(2)A person subject to service law commits an offence if—

(a)without reasonable excuse, his behaviour is—

(i)threatening, abusive, insulting or provocative; and

(ii)likely to cause a disturbance; and

(b)he intends to be, or is aware that his behaviour may be, threatening, abusive, insulting or provocative.

(3)For the purposes of this section a person's “behaviour” includes anything said by him.

(4)A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, but any sentence of imprisonment imposed in respect of the offence must not exceed two years.

Commencement Information

I41S. 21 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I42S. 21 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

22Ill-treatment of subordinatesU.K.

(1)A person subject to service law who is an officer, warrant officer or non-commissioned officer commits an offence if—

(a)he ill-treats a subordinate (“B”);

(b)he intends to ill-treat B or is reckless as to whether he is ill-treating B; and

(c)he knows or has reasonable cause to believe that B is a subordinate.

(2)For the purposes of this section a person (“B”) is a subordinate of another person (“A”) if—

(a)B is subject to service law; and

(b)A is a superior officer of B.

(3)A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, but any sentence of imprisonment imposed in respect of the offence must not exceed two years.

Modifications etc. (not altering text)

Commencement Information

I43S. 22 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I44S. 22 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

23Disgraceful conduct of a cruel or indecent kindU.K.

(1)A person subject to service law commits an offence if—

(a)he does an act which is cruel or indecent; and

(b)his doing so is disgraceful.

(2)In this section “act” includes an omission and the reference to the doing of an act is to be read accordingly.

(3)A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, but any sentence of imprisonment imposed in respect of the offence must not exceed two years.

Commencement Information

I45S. 23 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I46S. 23 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

Property offencesU.K.

24Damage to or loss of public or service propertyU.K.

(1)A person subject to service law commits an offence if—

(a)he does an act that causes damage to or the loss of any public or service property or any property belonging to another person subject to service law; and

(b)either—

(i)he intends to cause damage to or the loss of the property, and there is no lawful excuse for his act; or

(ii)he is reckless as to whether he causes damage to or the loss of the property.

(2)A person subject to service law commits an offence if—

(a)negligently, he does an act that causes damage to or the loss of any public or service property; or

(b)he does an act that is likely to cause damage to or the loss of any public or service property and—

(i)he is reckless as to whether he causes damage to or the loss of the property; or

(ii)he is negligent.

(3)For the purposes of this section—

(a)act” includes an omission and references to the doing of an act are to be read accordingly;

(b)references to causing include allowing;

(c)loss” includes temporary loss;

(d)property” means property of a tangible nature, and references to public or service property are to be read accordingly.

(4)A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, but any sentence of imprisonment imposed in respect of the offence must not exceed—

(a)in the case of an offence under subsection (1), ten years;

(b)in the case of an offence under subsection (2), two years.

Commencement Information

I47S. 24 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I48S. 24 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

25Misapplying or wasting public or service propertyU.K.

(1)A person subject to service law commits an offence if he misapplies or wastes any public or service property.

(2)A person guilty of an offence under this section is liable to any punishment mentioned in rows 2 to 12 of the Table in section 164.

Commencement Information

I49S. 25 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I50S. 25 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

26Sections 24 and 25: “public property” and “service property”U.K.

(1)This section applies for the purposes of sections 24 and 25.

(2)Public property” means property belonging to or held for the purposes of—

(a)a department of the Government of the United Kingdom;

(b)any part of the Scottish Administration;

(c)a Northern Ireland department; or

(d)the National Assembly for Wales.

(3)Service property” means property—

(a)belonging to or used for the purposes of any of Her Majesty's forces;

(b)belonging to a Navy, Army and Air Force Institute; or

(c)belonging to an association established, or having effect as if established, under section 110 of the Reserve Forces Act 1996 (c. 14) (reserve associations).

Commencement Information

I51S. 26 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I52S. 26 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

Offences against service justiceU.K.

27Obstructing or failing to assist a service policemanU.K.

(1)A person within subsection (2) commits an offence if—

(a)he intentionally obstructs, or intentionally fails to assist when called upon to do so, a person who is—

(i)a service policeman acting in the course of his duty; or

(ii)a person subject to service law lawfully exercising authority on behalf of a provost officer; and

(b)he knows or has reasonable cause to believe that that person is a service policeman or a person exercising authority on behalf of a provost officer.

(2)A person is within this subsection if he is—

(a)a person subject to service law; or

(b)a civilian subject to service discipline.

(3)A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, but any sentence of imprisonment imposed in respect of the offence must not exceed two years.

Commencement Information

I53S. 27 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I54S. 27 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

28Resistance to arrest etcU.K.

(1)A person subject to service law (“A”) commits an offence if another person (“B”), in the exercise of a power conferred by or under this Act, orders A into arrest and—

(a)A disobeys the order;

(b)A uses violence against B; or

(c)A's behaviour towards B is threatening.

(2)A person subject to service law, or a civilian subject to service discipline, commits an offence if—

(a)he uses violence against a person who has a duty to apprehend him, or his behaviour towards such a person is threatening; and

(b)he knows or has reasonable cause to believe that the person has a duty to apprehend him.

(3)For the purposes of this section—

(a)a person's “behaviour” includes anything said by him;

(b)“threatening” behaviour is not limited to behaviour that threatens violence;

(c)a “duty” to apprehend a person means such a duty arising under service law.

(4)A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, but any sentence of imprisonment imposed in respect of the offence must not exceed two years.

Commencement Information

I55S. 28 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I56S. 28 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

29Offences in relation to service custodyU.K.

(1)A person subject to service law, or a civilian subject to service discipline, commits an offence if he escapes from lawful custody.

(2)A person subject to service law, or a civilian subject to service discipline, commits an offence if—

(a)he uses violence against a person in whose lawful custody he is, or his behaviour towards such a person is threatening; and

(b)he knows or has reasonable cause to believe that the custody is lawful.

(3)For the purposes of this section—

(a)references to custody are to service custody;

(b)a person's behaviour includes anything said by him;

(c)“threatening” behaviour is not limited to behaviour that threatens violence.

(4)A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, but any sentence of imprisonment imposed in respect of the offence must not exceed two years.

Commencement Information

I57S. 29 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I58S. 29 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

30Allowing escape, or unlawful release, of prisoners etcU.K.

(1)A person subject to service law commits an offence if—

(a)he knows that a person is committed to his charge, or that it is his duty to guard a person;

(b)he does an act that results in that person's escape; and

(c)he intends to allow, or is reckless as to whether the act will allow, that person to escape, or he is negligent.

(2)A person subject to service law commits an offence if—

(a)he knows that a person is committed to his charge;

(b)he releases that person without authority to do so; and

(c)he knows or has reasonable cause to believe that he has no such authority.

(3)In this section “act” includes an omission and the reference to the doing of an act is to be construed accordingly.

(4)A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, but any sentence of imprisonment imposed in respect of the offence must not exceed—

(a)in the case of an offence under subsection (1) where the offender intended to allow the person to escape, or an offence under subsection (2) where the offender knew he had no authority to release the person, ten years;

(b)in any other case, two years.

Commencement Information

I59S. 30 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I60S. 30 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

Ships and aircraftU.K.

31Hazarding of shipU.K.

(1)A person subject to service law commits an offence if he does an act that causes the hazarding of any of Her Majesty's ships and—

(a)he intends to cause damage to or the stranding or loss of the ship, and there is no lawful excuse for his act; or

(b)he is reckless as to whether he causes damage to or the stranding or loss of the ship.

(2)A person subject to service law commits an offence if, negligently, he does an act that causes the hazarding of any of Her Majesty's ships.

(3)For the purposes of this section—

(a)act” includes an omission and references to the doing of an act are to be read accordingly;

(b)references to causing include allowing;

(c)Her Majesty's ships” means all ships belonging to or used for the purposes of any of Her Majesty's forces.

(4)A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, and any sentence of imprisonment imposed in respect of the offence—

(a)in the case of an offence under subsection (1), may be for life;

(b)in the case of an offence under subsection (2), must not exceed two years.

Commencement Information

I61S. 31 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I62S. 31 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

32Giving false air signals etcU.K.

(1)A person subject to service law commits an offence if, without lawful excuse, he intentionally—

(a)gives a false air signal; or

(b)alters or interferes with an air signal or any equipment for giving an air signal.

(2)In this section “air signal” means a message, signal or indication given (by any means) for the guidance of aircraft or a particular aircraft.

(3)A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, and any sentence of imprisonment imposed in respect of the offence may be for life.

Commencement Information

I63S. 32 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I64S. 32 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

33Dangerous flying etcU.K.

(1)A person subject to service law commits an offence if—

(a)he does an act—

(i)when flying or using an aircraft, or

(ii)in relation to an aircraft or aircraft material,

that causes or is likely to cause loss of life or injury to any person; and

(b)either—

(i)he intends to cause loss of life or injury to any person, and there is no lawful excuse for his act; or

(ii)he is reckless as to whether he causes loss of life or injury to any person.

(2)A person subject to service law commits an offence if, negligently, he does an act—

(a)when flying or using an aircraft, or

(b)in relation to an aircraft or aircraft material,

that causes or is likely to cause loss of life or injury to any person.

(3)In this section—

  • act” includes an omission and the reference to the doing of an act is to be read accordingly;

  • aircraft material” includes—

    (a)

    parts of and accessories for aircraft (whether or not for the time being in aircraft);

    (b)

    armaments in or for use in aircraft;

    (c)

    any other equipment or instrument in or for use in aircraft;

    (d)

    any equipment for use in connection with the taking-off or landing of aircraft or for detecting the movement of aircraft;

    (e)

    any fuel for the propulsion of aircraft; and

    (f)

    any lubricant for aircraft or for anything within any of paragraphs (a) to (d).

(4)A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, and any sentence of imprisonment imposed in respect of the offence—

(a)in the case of an offence under subsection (1), may be for life;

(b)in the case of an offence under subsection (2), must not exceed two years.

Commencement Information

I65S. 33 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I66S. 33 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

34Low flyingU.K.

(1)A person subject to service law commits an offence if—

(a)he flies an aircraft at a height less than the minimum height, other than—

(i)when taking off or landing; or

(ii)in any other circumstances prescribed by regulations made by the Defence Council; and

(b)he intends to fly, or is reckless as to whether he flies, the aircraft at a height less than the minimum height, or he is negligent.

(2)If a person flies an aircraft in contravention of subsection (1) on the orders of another person who is in command of the aircraft, that other person is for the purposes of this section to be treated as flying the aircraft.

(3)In this section “minimum height” means the height prescribed by regulations made by the Defence Council.

(4)A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, but any sentence of imprisonment imposed in respect of the offence must not exceed two years.

Commencement Information

I67S. 34 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I68S. 34 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

35Annoyance by flyingU.K.

(1)A person subject to service law commits an offence if—

(a)he flies an aircraft so as to annoy or be likely to annoy any person;

(b)he can reasonably avoid flying the aircraft as mentioned in paragraph (a); and

(c)he intends to fly, or is reckless as to whether he flies, the aircraft so as to annoy any person, or he is negligent.

(2)If a person flies an aircraft in contravention of subsection (1) on the orders of another person who is in command of the aircraft, that other person is for the purposes of this section to be treated as flying the aircraft.

(3)A person guilty of an offence under this section is liable to any punishment mentioned in rows 3 to 12 of the Table in section 164.

Commencement Information

I69S. 35 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I70S. 35 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

36Inaccurate certificationU.K.

(1)A person subject to service law commits an offence if he makes or signs a relevant certificate without having ensured its accuracy.

(2)In this section “relevant certificate” means a certificate (including an electronic certificate) relating to—

(a)any matter affecting the seagoing or fighting efficiency of any of Her Majesty's ships;

(b)any of Her Majesty's aircraft;

(c)any aircraft material; or

(d)any equipment of a description prescribed by regulations made by the Defence Council.

(3)In subsection (2)—

  • Her Majesty's ships” has the meaning given by section 31;

  • Her Majesty's aircraft” means all aircraft belonging to or used for the purposes of any of Her Majesty's forces;

  • aircraft material” has the meaning given by section 33.

(4)A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, but any sentence of imprisonment imposed in respect of the offence must not exceed two years.

Commencement Information

I71S. 36 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I72S. 36 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

37Prize offences by officer in command of ship or aircraftU.K.

(1)A person subject to service law who, while in command of any of Her Majesty's ships or aircraft, takes any ship or aircraft as prize commits an offence if he unlawfully fails to ensure that all the ship papers or aircraft papers found on board are sent to a prize court of competent jurisdiction.

(2)A person subject to service law who, while in command of any of Her Majesty's ships or aircraft, takes any ship, aircraft or goods as prize commits an offence if he unlawfully fails to ensure that—

(a)the ship is brought to a convenient port for adjudication;

(b)the aircraft is brought to a convenient airfield for adjudication; or

(c)the goods are brought to a convenient port or airfield for adjudication.

(3)In this section—

  • “Her Majesty's ships” and “Her Majesty's aircraft” have the meanings given (respectively) by sections 31 and 36;

  • prize court” means a prize court within the meaning of the Naval Prize Act 1864 (c. 25);

  • “ship papers” and “aircraft papers” have the meanings given by section 2 of that Act.

(4)A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, but any sentence of imprisonment imposed in respect of the offence must not exceed two years.

Commencement Information

I73S. 37 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I74S. 37 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

38Other prize offencesU.K.

(1)A person subject to service law commits an offence if—

(a)he ill-treats a person who is on board a ship or aircraft when it is taken as prize; or

(b)he unlawfully takes anything in the possession of such a person.

(2)A person subject to service law commits an offence if he unloads, unpacks or otherwise interferes with any goods that are on board a ship or aircraft which has been taken as prize, unless—

(a)the goods have been adjudged by a prize court (within the meaning of the Naval Prize Act 1864 (c. 25)) to be lawful prize; or

(b)the goods are removed for safe keeping or for necessary use by any of Her Majesty's forces or any force co-operating with them.

(3)A person subject to service law commits an offence if, without lawful excuse, he unloads, unpacks or otherwise interferes with any goods that are on board a ship or aircraft that has been detained in exercise of a belligerent right or under an enactment.

(4)A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, but any sentence of imprisonment imposed in respect of the offence must not exceed two years.

Commencement Information

I75S. 38 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I76S. 38 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

Attempts, [F3encouragement and assistance] , and aiding and abettingU.K.

Textual Amendments

F3Words in s. 39 cross-heading substituted (1.10.2008) by Serious Crime Act 2007 (c. 27), s. 94(1), Sch. 5 para. 10 (with Sch. 13 para. 5); S.I. 2008/2504, art. 2(a)

39AttemptsU.K.

(1)A person subject to service law commits an offence if he attempts to commit an offence to which this subsection applies.

(2)Subsection (1) applies to any service offence except—

(a)an offence committed by virtue of section 41 (aiding and abetting);

(b)an offence under this section or section 42.

(3)A civilian subject to service discipline commits an offence if he attempts to commit an offence to which this subsection applies.

(4)Subsection (3) applies to—

(a)an offence under section 4, 13, 27, 28(2), 29, 107 or 306 of this Act or under section 18 or 20 of the Armed Forces Act 1991 (c. 62); and

(b)an offence under section 40 of [F4encouraging or assisting the commission of] an offence mentioned in paragraph (a).

(5)For the purposes of this section a person attempts to commit an offence if, with intent to commit the offence, he does an act which is more than merely preparatory to the commission of the offence.

(6)For those purposes, a person may attempt to commit an offence even though the facts are such that the commission of the offence is impossible.

(7)Where—

(a)apart from this subsection a person's intention would not be regarded as having amounted to an intent to commit an offence, but

(b)if the facts of the case had been as he believed them to be his intention would be so regarded,

then for the purposes of this section he shall be regarded as having had an intent to commit that offence.

(8)Where in proceedings for an offence under this section there is evidence sufficient in law to support a finding that the defendant did an act falling within subsection (5), the question whether his act fell within that subsection is a question of fact.

(9)A person guilty of an offence under this section is liable to the same punishment as he would be liable to if guilty of the offence attempted.

Textual Amendments

F4Words in s. 39(4)(b) substituted (1.10.2008) by Serious Crime Act 2007 (c. 27), s. 94(1), Sch. 5 para. 8 (with Sch. 13 para. 5); S.I. 2008/2504, art. 2(a)

Commencement Information

I77S. 39 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I78S. 39 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

[F540Encouraging and assistingU.K.

(1)A person subject to service law commits an offence if he encourages or assists the commission of a service offence (other than an offence under section 42).

(2)A civilian subject to service discipline commits an offence if he encourages or assists the commission of an offence mentioned in section 39(4).

(3)Reference in this section to encouraging or assisting the commission of an offence is to the doing of an act that would have constituted an offence under Part 2 of the Serious Crime Act 2007 if the offence encouraged or assisted had been an offence under the law of England and Wales.

(4)In determining whether an act would have constituted an offence under that Part, section 49(4) of that Act has effect as if for “offences under this Part and listed offences” it read “offences under sections 39 and 40 of the Armed Forces Act 2006”.

(5)Any requirement in that Part to specify matters in an indictment applies for the purposes of this section as it applies for the purposes of that Part, but with references to the indictment being read as references to the charge sheet.

(6)A person guilty of an offence under this section is liable to the same punishment as he would be liable to if guilty of—

(a)the service offence encouraged or assisted; or

(b)if convicted of the offence under this section by reference to more than one such service offence, any one of those service offences.]

Textual Amendments

Commencement Information

I79S. 40 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I80S. 40 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

41Aiding, abetting, counselling or procuringU.K.

(1)Where a person subject to service law aids, abets, counsels or procures the commission by another person of an offence to which this subsection applies, he commits that offence.

(2)Subsection (1) applies to any service offence except an offence under section 42.

(3)A person who by virtue of subsection (1) commits an offence is liable to be charged, tried (including dealt with at a summary hearing) and punished as a principal offender.

(4)Where a civilian subject to service discipline aids, abets, counsels or procures the commission by another person of an offence mentioned in section 39(4), he commits that offence and is liable to be charged, tried and punished as a principal offender.

Commencement Information

I81S. 41 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I82S. 41 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

Criminal conductU.K.

42Criminal conductU.K.

(1)A person subject to service law, or a civilian subject to service discipline, commits an offence under this section if he does any act that—

(a)is punishable by the law of England and Wales; or

(b)if done in England or Wales, would be so punishable.

(2)A person may be charged with an offence under this section even if he could on the same facts be charged with a different service offence.

(3)A person guilty of an offence under this section is liable to—

(a)if the corresponding offence under the law of England and Wales is under that law an offence punishable with imprisonment, any punishment mentioned in the Table in section 164;

(b)otherwise, any punishment mentioned in rows 5 to 12 of that Table.

(4)Any sentence of imprisonment or fine imposed in respect of an offence under this section must not exceed—

(a)if the corresponding offence under the law of England and Wales is a summary offence, the maximum term of imprisonment or fine that could be imposed by a magistrates' court on summary conviction;

(b)if that corresponding offence is an indictable offence, the maximum sentence of imprisonment or fine that could be imposed by the Crown Court on conviction on indictment.

(5)In subsection (4) “a summary offence” and “an indictable offence” mean, respectively, a summary offence under the law of England and Wales and an indictable offence under that law.

(6)In this section and sections 45 to 49 “act” includes an omission and references to the doing of an act are to be read accordingly.

(7)In subsections (1) and (8) and sections 45 to 49 “punishable” means punishable with a criminal penalty.

(8)In this Act “the corresponding offence under the law of England and Wales”, in relation to an offence under this section, means—

(a)the act constituting the offence under this section; or

(b)if that act is not punishable by the law of England and Wales, the equivalent act done in England or Wales.

Commencement Information

I83S. 42 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I84S. 42 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

43Attempting criminal conductU.K.

(1)Subsection (2) applies for the purpose of determining whether an attempt is an offence under section 42.

(2)For that purpose section 1(4) of the Criminal Attempts Act 1981 (c. 47) (offences that it is an offence to attempt) has effect as if for the words from “offence which” to “other than” there were substituted “ offence under section 42 of the Armed Forces Act 2006 consisting of an act punishable by the law of England and Wales as an indictable offence or an act that, if done in England or Wales, would be so punishable by that law; but “indictable offence” here does not include ”.

(3)Section 42(6) applies for the purposes of section 1(4) of the Criminal Attempts Act 1981 as modified by this section.

Commencement Information

I85S. 43 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I86S. 43 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

44Trial of section 42 offence of attemptU.K.

(1)Where, in proceedings for a section 42 offence of attempt, there is evidence sufficient in law to support a finding that the defendant did an act falling within subsection (1) of section 1 of the Criminal Attempts Act 1981, the question whether his act fell within that subsection is a question of fact.

(2)In this section “a section 42 offence of attempt” means an offence under section 42 consisting of an act that is, or that would be if done in England or Wales, an offence under section 1(1) of the Criminal Attempts Act 1981 (c. 47).

(3)References in subsections (1) and (2) to section 1(1) of the Criminal Attempts Act 1981 are to that provision as it has effect by virtue of section 43 above.

Commencement Information

I87S. 44 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I88S. 44 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

45Conspiring to commit criminal conductU.K.

(1)For the purpose of determining whether an agreement that a course of conduct be pursued is an offence under section 42—

(a)sections 1(1) and 2 of the Criminal Law Act 1977 (c. 45) (conspiracy) have effect as if any reference to an offence included a reference to an act that, if done in England or Wales, would be punishable by the law of England and Wales; and

(b)section 1(2) of that Act has effect as if it read—

(2)Where liability for any offence may be incurred without knowledge on the part of the person committing it of any particular fact or circumstance necessary for the commission of it, a person is nevertheless not guilty by virtue of subsection (1) above of conspiracy to commit—

(a)that offence, or

(b)an act that would amount to that offence if done in England or Wales,

unless he and at least one other party to the agreement intend or know that that fact or circumstance shall or will exist at the time when the conduct constituting the offence, or the act, is to take place.

(2)Section 42(6) applies for the purposes of section 1(2) of the Criminal Law Act 1977 as substituted by this section.

Commencement Information

I89S. 45 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I90S. 45 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

[F646Encouraging or assisting criminal conductU.K.

(1)Subsection (2) applies if a person subject to service law, or a civilian subject to service discipline, encourages or assists the doing of an act (or one or more of a number of acts) that, if done in England or Wales, would be punishable by the law of England and Wales.

(2)Regardless of where that act (or those acts) might be done and of his state of mind with respect to that question, his encouragement or assistance shall be treated for the purposes of section 42(1) as an act that is punishable by the law of England and Wales (so far as it is not such an act in any event).

(3)Reference in this section to encouraging or assisting is to an act that would constitute an offence under Part 2 of the Serious Crime Act 2007 disregarding any provision in that Part about the place where the act (or acts) being encouraged or assisted might be done or the accused's state of mind with respect to that question.]

Textual Amendments

Commencement Information

I91S. 46 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I92S. 46 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

47Aiding, abetting, counselling or procuring criminal conductU.K.

(1)Subsection (2) applies if—

(a)any person (“A”) does an act that is punishable by the law of England and Wales or would be so punishable if done in England or Wales; and

(b)a person subject to service law, or a civilian subject to service discipline, aids, abets, counsels or procures A's doing of that act.

(2)Regardless of where the act aided, abetted, counselled or procured was done, the aiding, abetting, counselling or procuring shall be treated for the purposes of section 42(1) as an act that is punishable by the law of England and Wales.

(3)For the purpose of determining whether an attempt is an act that falls within subsection (1)(a) above, section 1(4) of the Criminal Attempts Act 1981 (c. 47) has effect with the modification made by section 43.

Commencement Information

I93S. 47 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I94S. 47 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

48Provision supplementary to sections 43 to 47U.K.

(1)This section applies where—

(a)an attempt, agreement or [F7encouragement or assistance], or a person's aiding, abetting, counselling or procuring, is an offence under section 42 by reason of section 43, 45, 46 or 47; and

(b)the act to which it relates (“the contemplated act”) is not an act that is (or that if done would have been) punishable by the law of England and Wales.

(2)For the following purposes it shall be assumed that the contemplated act amounted to the offence under the law of England and Wales that it would have amounted to if it had been the equivalent act in England or Wales.

(3)Those purposes are—

(a)the purpose of determining what punishment may be imposed for the offence under section 42;

(b)the purpose of determining for the purposes of any of the following provisions of this Act whether the act constituting the offence under section 42, or the equivalent act done in England or Wales, is or would be—

(i)an offence under the law of England and Wales;

(ii)any particular such offence;

(iii)such an offence of any particular description.

Textual Amendments

F7Words in s. 48(1)(a) substituted (1.10.2008) by Serious Crime Act 2007 (c. 27), s. 94(1), Sch. 5 para. 12 (with Sch. 13 para. 5); S.I. 2008/2504, art. 2(a)

Modifications etc. (not altering text)

C7S. 48 applied (with modifications) by 2003 c. 44, Sch. 15A para. 52(2) (as inserted (14.7.2008) by Criminal Justice and Immigration Act 2008 (c. 4), ss. 13(2), 153(7), Sch. 5; S.I. 2008/1586, art. 2(1), Sch. 1 para. 4 (with Sch. 2 para. 2))

C8S. 48 applied (with modifications) by 2003 c. 44, s. 233(2) (as substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 16 para. 218 (with s. 385); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4)

C9S. 48 applied (with modifications) by 2000 c. 6, s. 114(3) (as substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 16 para. 166 (with s. 385); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4)

C10S. 48 applied (with modifications) by 2000 c. 43, s. 27(3) (as substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 16 para. 179(3) (with s. 385); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4)

C11S. 48 applied (with modifications) by 1992 c. 34, s. 6(1A) (as inserted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 16 para. 127(3) (with s. 385); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4)

C12S. 48 applied (with modifications) by 2003 c. 42, Sch. 5 para. 172A(2) (as inserted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 16 para. 213 (with s. 385); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4)

C13S. 48 applied (with modifications) by 2003 c. 42, Sch. 3 para. 93A(3) (as inserted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 16 para. 212(3) (with s. 385); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4)

C14S. 48 applied (with modifications) by 1982 c. 48, s. 32(2A) (as inserted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 16 para. 94(4) (with s. 385); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4)

C16S. 48 applied (with modifications) by 1991 c. 53, s. 33(1D) (as inserted (31.10.2009) by Criminal Justice and Immigration Act 2008 (c. 4), ss. 26(2), 153(7) (with Sch. 27 paras. 89); S.I. 2009/2606, art. 3(b))

C17S. 48 applied (with modifications) by 2003 c. 44, s. 255A(10) (as inserted (31.10.2009) by Criminal Justice and Immigration Act 2008 (c. 4), ss. 29(2), 153(7) (with Sch. 27 para. 11); S.I. 2009/2606, art. 3(c))

Commencement Information

I95S. 48 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I96S. 48 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

49Air Navigation Order offencesU.K.

(1)If a person subject to service law, or a civilian subject to service discipline, does in or in relation to a military aircraft any act that if done in or in relation to a civil aircraft would amount to a prescribed Air Navigation Order offence, the act shall be treated for the purposes of section 42(1) as punishable by the law of England and Wales.

(2)Where an act is an offence under section 42 by reason of subsection (1) above—

(a)section 42(8)(b) does not apply; and

(b)it shall be assumed for the following purposes that the act amounted to the offence under the law of England and Wales that it would have amounted to if it had been done in or in relation to a civil aircraft.

(3)Those purposes are—

(a)the purpose of determining what punishment may be imposed for the offence under section 42;

(b)the purpose of determining for the purposes of any of the following provisions of this Act whether the act constituting the offence under section 42 is—

(i)an offence under the law of England and Wales;

(ii)any particular such offence;

(iii)such an offence of any particular description.

(4)In this section—

  • military aircraft” has the meaning given by section 92 of the Civil Aviation Act 1982 (c. 16);

  • civil aircraft” means an aircraft that is registered in the United Kingdom and is not a military aircraft;

  • Air Navigation Order offence” means an offence under an Order in Council made under section 60 of the Civil Aviation Act 1982 (whenever made, and whether or not also made under any other enactment);

  • prescribed” means prescribed by an order made by the Secretary of State for the purposes of this section.

Commencement Information

I97S. 49 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I98S. 49 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

Part 2U.K.Jurisdiction and Time Limits

Chapter 1U.K.Jurisdiction

Court MartialU.K.

50Jurisdiction of the Court MartialU.K.

(1)The Court Martial has jurisdiction to try any service offence.

(2)In this Act “service offence” means—

(a)any offence under Part 1;

[F8(aa)an offence under section 93A, 93E or 93G (testing for alcohol or drugs on suspicion);]

(b)an offence under section 107 (breach of requirement imposed on release from custody);

(c)an offence under section 229 (breach of service restraining order);

(d)an offence under section 266 (failure to comply with financial statement order);

[F9(e)an offence under section 305 (random drug testing);]

(f)any offence under regulations under section 328 (false answer during enlistment in a regular force) or section 343 (service inquiries) that the regulations provide is a service offence;

[F10(fa)an offence under paragraph 2, 3 or 4 of Schedule 2A (offences committed by a lay member of the Court Martial);

(fb)an offence under paragraph 5 of that Schedule (disclosing information about members' deliberations etc) committed by a person described in sub-paragraph (2) of that paragraph;]

(g)an offence under section 18 or 20 of the Armed Forces Act 1991 (c. 62) (orders for the protection of children);

(h)an offence under any of sections 95 to 97 of the Reserve Forces Act 1996 (c. 14) (reserve forces offences); or

(i)an offence under paragraph 5(1) of Schedule 1 to that Act (false answer during enlistment in a reserve force) committed by a person within paragraph 5(3) of that Schedule.

Textual Amendments

Commencement Information

I99S. 50 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I100S. 50 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

Service Civilian CourtU.K.

51Jurisdiction of the Service Civilian CourtU.K.

(1)The Service Civilian Court has jurisdiction to try any service offence committed outside the British Islands by a civilian, except an offence within subsection (3) or an offence in relation to which subsection (6) applies.

(2)For the purposes of subsection (1) an offence is committed by a civilian if it is committed by a person who, at the time when it is committed, is a civilian subject to service discipline.

(3)The offences within this subsection are—

(a)an indictable-only offence under section 42;

(b)an offence under section 266 committed in respect of a financial statement order made by a court other than the Service Civilian Court;

(c)any service offence under regulations under section 328 or 343;

[F11(ca)an offence under paragraph 2, 3, 4 or 5 of Schedule 2A (offences relating to members of the Court Martial);]

(d)an offence within section 50(2)(h) or (i) (Reserve Forces Act offences).

(4)For the purposes of subsection (3)(a) an offence under section 42 is “indictable-only” if the corresponding offence under the law of England and Wales is under that law an offence which, if committed by an adult, is triable only on indictment; but this is subject to subsection (5).

(5)Where the defendant is aged under 18 at the time a decision under section 279 is made, an offence under section 42 is “indictable-only” for the purposes of subsection (3)(a) above if (and only if)—

(a)the corresponding offence under the law of England and Wales is murder, manslaughter or an offence under section 5 of the Domestic Violence, Crime and Victims Act 2004 (c. 28) [F12of causing or allowing the death of a child or vulnerable adult]; or

(b)section 227 (firearms offences) would apply if the accused were convicted by the Court Martial of the offence under section 42.

(6)This subsection applies in relation to an offence if the defendant is for the time being—

(a)a member of the regular or reserve forces; or

(b)liable to recall.

(7)For the purposes of subsection (6) a person is “liable to recall” if—

(a)under section 65(1) of the Reserve Forces Act 1996 (c. 14) he is liable to be recalled for service; or

(b)he is liable to be recalled as mentioned in section 35(1) of the Reserve Forces Act 1980 (c. 9).

Textual Amendments

Commencement Information

I101S. 51 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I102S. 51 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

Commanding officersU.K.

52Charges capable of being heard summarilyU.K.

(1)A charge against a person (“the accused”) in respect of an offence is capable of being heard summarily if (and only if) conditions A to C are met.

(2)Condition A is that the offence is one that may be dealt with at a summary hearing (see section 53).

(3)Condition B is that the accused is—

(a)an officer of or below the rank of commander, lieutenant-colonel or wing commander; or

(b)a person of or below the rank or rate of warrant officer.

(4)Condition C is (subject to subsections (5) and (6)) that the accused is—

(a)subject to service law,

(b)a member of a volunteer reserve force, or

(c)a member of an ex-regular reserve force who is subject to an additional duties commitment,

from the time the offence is committed to the end of the summary hearing of the charge.

(5)If the offence is one under section 96(1) of the Reserve Forces Act 1996 (c. 14) committed by virtue of section 96(2) of that Act, condition C is that the accused is—

(a)liable to recall, or

(b)a member of the regular forces,

from the time the offence is committed to the end of the summary hearing of the charge.

(6)If the offence is any other Reserve Forces Act offence, condition C is that the accused is a member of a reserve force from the time the offence is committed to the end of the summary hearing of the charge.

(7)For the purposes of this section—

(a)a person is “liable to recall” if—

(i)under section 65(1) of the Reserve Forces Act 1996 he is liable to be recalled for service; or

(ii)he is liable to be recalled as mentioned in section 35(1) of the Reserve Forces Act 1980 (c. 9);

(b)Reserve Forces Act offence” means an offence within section 53(1)(k).

(8)Where at any time it falls to a person to determine for the purposes of any provision of this Act whether a charge is or would be capable of being heard summarily, the references in subsections (4) to (6) to the end of the summary hearing of the charge are to be read as references to that time.

Modifications etc. (not altering text)

Commencement Information

I103S. 52 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I104S. 52 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

53Offences that may be dealt with at a summary hearingU.K.

(1)The following service offences may be dealt with at a summary hearing—

(a)an offence under section 4(3);

(b)an offence under any of sections 9 to 15;

(c)an offence under section 16(1)(a), or an offence under section 16(1)(c) committed by omission;

(d)an offence under any of sections 17 to 29;

(e)an offence under section 30(1) of negligently doing an act that results in a person's escape, or an offence under section 30(2);

(f)an offence under any of sections 34 to 36;

(g)an offence under section 42 (criminal conduct) within subsection (3);

[F13(ga)an offence under section 93A, 93E or 93G (testing for alcohol or drugs on suspicion);]

(h)an offence under section 107;

[F14(i)an offence under section 305 (random drug testing);]

(j)any service offence under regulations under section 328 or 343;

(k)an offence under section 96 or 97 of the Reserve Forces Act 1996 of absence without leave.

(2)Any reference in a paragraph of subsection (1), except paragraph (g), to an offence includes an offence under section 39 of attempting to commit that offence.

(3)An offence under section 42 is within this subsection if the corresponding offence under the law of England and Wales is—

(a)an offence listed in either Part of Schedule 1 (criminal conduct offences that may be dealt with at a summary hearing); or

(b)an offence under section 1 of the Criminal Attempts Act 1981 (c. 47) of attempting to commit an (indictable) offence so listed.

(4)The Secretary of State may by order amend Schedule 1.

Textual Amendments

Commencement Information

I105S. 53 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I106S. 53 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

54Charges which may be heard summarily only with permission or by senior officerU.K.

(1)An officer may not hear summarily a charge in respect of an offence within subsection (2) unless—

(a)he has obtained the permission of higher authority; or

(b)he is of or above the rank of rear admiral, major-general or air vice-marshal.

(2)An offence is within this subsection if it is an offence under section 42 as respects which the corresponding offence under the law of England and Wales is—

(a)an offence listed in Part 2 of Schedule 1; or

(b)an offence under section 1 of the Criminal Attempts Act 1981 of attempting to commit an (indictable) offence so listed.

Commencement Information

I107S. 54 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I108S. 54 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

Chapter 2U.K.Time Limits for Commencing Proceedings

Time limits for offences other than Reserve Forces Act offencesU.K.

55Time limit for charging former member of a regular or reserve forceU.K.

(1)This section applies where a person ceases to be a member of a regular or reserve force.

(2)The person may not, after the end of six months beginning with the date he ceased to be a member of that force, be charged with a service offence committed while he was a member.

(3)Subsection (2) applies even if the person rejoins the force within those six months.

Commencement Information

I109S. 55 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I110S. 55 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

56Time limit for charging certain members or former members of ex-regular reserve forcesU.K.

(1)This section applies where—

(a)a person, while a member of an ex-regular reserve force, has been subject to an additional duties commitment; and

(b)the person ceases to be subject to the commitment.

(2)The person may not, after the end of six months beginning with the date he ceased to be subject to the commitment, be charged with a service offence committed while he was so subject.

Commencement Information

I111S. 56 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I112S. 56 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

57Time limit for charging person formerly subject to service lawU.K.

(1)This section applies where a person ceases to be subject to service law.

(2)The person may not, after the end of six months beginning with the date he ceased to be subject to service law, be charged with a service offence committed while he was so subject.

(3)Subsection (2) applies even if the person (again) becomes subject to service law within those six months.

(4)Subsection (2) does not apply in relation to an offence committed by a person when he was—

(a)a member of a volunteer reserve force; or

(b)a member of an ex-regular reserve force who was subject to an additional duties commitment.

Commencement Information

I113S. 57 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I114S. 57 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

58Time limit for charging civilian formerly subject to service disciplineU.K.

(1)Subsection (2) applies in any case where a person ceases to be a civilian subject to service discipline, except a case where at the time he does so he becomes subject to service law.

(2)Where this subsection applies—

(a)the person may not, after the end of six months beginning with the date he ceased to be a civilian subject to service discipline, be charged with a service offence committed while he was such a civilian; and

(b)this applies even if he (again) becomes such a civilian within those six months.

(3)Where a person ceases to be a civilian subject to service discipline and at the time he does so becomes subject to service law, section 57 has effect as if—

(a)the reference in subsection (2) to a service offence committed while the person was subject to service law included a service offence committed during the relevant period; and

(b)the reference in subsection (3) to becoming subject to service law included becoming a civilian subject to service discipline.

(4)In subsection (3)(a) above “the relevant period” means the period while the person was a civilian subject to service discipline that ended with his becoming subject to service law.

(5)Subsection (6) applies to a person—

(a)who ceases to be a civilian subject to service discipline by reason only of—

(i)leaving an area designated for the purposes of Schedule 15;

[F15(ia)leaving a country in which he fell within paragraph 5 of that Schedule;]

(ii)entering the British Islands; or

(iii)leaving an area which a designation under paragraph 7 of Schedule 15 specifies as an area that he must be in for the designation to apply to him; and

(b)who is residing or staying in a qualifying place at the time he does so.

(6)As regards that time, and for so long after that time as he continues—

(a)to reside or stay in a qualifying place, and

(b)to be a person who is not a civilian subject to service discipline but who would be such a civilian if he were in a qualifying place,

he is to be treated for the purposes of this section (apart from subsection (5)) as being such a civilian.

(7)In subsections (5) and (6) “in a qualifying place” means—

(a)in relation to a person who falls within subsection (5)(a) by reason of leaving an area designated for the purposes of Schedule 15, in any such area;

[F16(aa)in relation to a person who falls within subsection (5)(a) by reason of leaving a country in which he fell within paragraph 5 of that Schedule, in that country or any other country in which he falls within that paragraph;]

(b)in relation to a person who falls within subsection (5)(a) by reason of entering the British Islands, outside the British Islands;

(c)in relation to a person who falls within subsection (5)(a) by reason of leaving an area mentioned in subsection (5)(a)(iii), in that area.

[F17(8)In subsections (5)(a)(ia) and (7)(aa) “country” is to be read in accordance with paragraph 14 of Schedule 15.]

Textual Amendments

Commencement Information

I115S. 58 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I116S. 58 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

59Time limit for charging offence under section 107U.K.

(1)A person may not be charged with an offence under section 107 (breach of requirement imposed on release from custody) after the end of whichever of the following periods ends last—

(a)six months beginning with the date of commission of the offence;

(b)two months beginning with the date the person is apprehended.

(2)Where subsection (1) prohibits the charging of a person with an offence, the power under section 123(2)(c) or 125(2)(c) may not be exercised so as to charge that person with that offence.

Commencement Information

I117S. 59 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I118S. 59 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

60Time limit for charging offence under section 266U.K.

A person may not be charged with an offence under section 266 (failure to comply with financial statement order) after the end of whichever of the following periods ends first—

(a)two years beginning with the date of commission of the offence;

(b)six months beginning with the date the offence becomes known to a member of the Service Prosecuting Authority.

Commencement Information

I119S. 60 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I120S. 60 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

61Sections 55 to 60: exceptions and interpretationU.K.

(1)References in sections 55 to 60 and this section to charging (except the second such reference in section 59(2)) are to charging under section 120 or 122.

(2)Where any of sections 55 to 58 prohibits the charging of a person with an offence, the person may be charged with the offence if the Attorney General consents.

(3)Each of sections 55 to 60 is without prejudice to the rest of those sections.

(4)Nothing in those sections applies in relation to a Reserve Forces Act offence (as defined by section 62).

Commencement Information

I121S. 61 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I122S. 61 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

Time limit for Reserve Forces Act offencesU.K.

62Time limit for charging Reserve Forces Act offencesU.K.

(1)A person may not be charged with a Reserve Forces Act offence after the end of whichever of the following periods ends last—

(a)six months beginning with the date of commission of the offence;

(b)two months beginning with the date the offence becomes known to the person's commanding officer;

(c)two months beginning with the date the person is apprehended;

(d)if the offence was committed when the person was a relevant reservist, six months beginning with the date he ceases to be a relevant reservist.

(2)If—

(a)the offence was committed when the person was a relevant reservist, and

(b)he ceases to be a relevant reservist after committing it,

the period in subsection (1)(d) is not extended by his (again) becoming a relevant reservist within the six months beginning with the date he so ceased.

(3)In this section—

(a)the reference in subsection (1) to charging is to charging under section 120 or 122;

(b)Reserve Forces Act offence” means an offence within section 50(2)(h) or (i);

(c)relevant reservist” means—

(i)a member of a volunteer reserve force; or

(ii)a member of an ex-regular reserve force who is in full-time service or subject to an additional duties commitment;

(d)in full-time service” means in such service under a commitment entered into under section 24 of the Reserve Forces Act 1996 (c. 14).

(4)Where subsection (1) prohibits the charging (as defined by subsection (3)(a)) of a person with an offence, the power under section 123(2)(c) or 125(2)(c) may not be exercised so as to charge that person with that offence.

Commencement Information

I123S. 62 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I124S. 62 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

Chapter 3U.K.Double Jeopardy

63Service proceedings barring subsequent service proceedingsU.K.

(1)This section applies where a person—

(a)has been convicted or acquitted of a service offence; or

(b)has had a service offence taken into consideration when being sentenced;

and in this section “offence A” means the offence mentioned in paragraph (a) or (b).

(2)The Court Martial may not try that person for an offence (“offence B”) if—

(a)offence B is the same offence in law as offence A, or subsection (3) applies; and

(b)the alleged facts on which the charge in respect of offence B is based are the same, or substantially the same, as those on which the charge in respect of offence A was based.

(3)This subsection applies if—

(a)the person was convicted of offence A, or offence A was taken into consideration, and offence B is an offence all of whose elements are elements of offence A;

(b)the person was acquitted of offence A and offence B is an offence whose elements include all the elements of offence A; or

(c)the person was convicted or acquitted of offence A by the Court Martial or the Service Civilian Court and offence B is an offence of which under section 161 (alternative offences) he could have been convicted on acquittal of offence A.

(4)Where offence A is an offence taken into consideration which was not charged, the reference in subsection (2)(b) to the facts on which the charge in respect of offence A was based is to be read as a reference to the facts on which a charge in respect of offence A would have been based.

(5)Where by reason of this section a person cannot be tried by the Court Martial for an offence—

(a)the Service Civilian Court may not try him for that offence; and

(b)a charge against him in respect of that offence may not be heard summarily by an officer.

Commencement Information

I125S. 63 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I126S. 63 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

64Service proceedings barring subsequent civilian proceedingsU.K.

(1)This section applies where a person—

(a)has been convicted or acquitted of an offence under section 42 (criminal conduct); or

(b)has had such an offence taken into consideration when being sentenced.

(2)A civilian court in a relevant territory may not try that person for any offence for which, under the law of that territory, it would be debarred from trying him if he had been convicted or (as the case may be) acquitted by a court in England and Wales of the relevant offence.

(3)The relevant offence” means the offence under the law of England and Wales which the act (or alleged act) constituting the offence under section 42 amounted to.

(4)Where that act (or alleged act) would amount to an offence under the law of England and Wales if it had been done in England or Wales, for the purposes of subsection (3) it shall be assumed to amount to that offence.

(5)In this section “relevant territory” means—

(a)England and Wales;

(b)Scotland;

(c)Northern Ireland; or

(d)the Isle of Man.

(6)In this section “act” includes an omission and references to the doing of an act are to be read accordingly.

Commencement Information

I127S. 64 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I128S. 64 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

65Sections 63 and 64: supplementaryU.K.

(1)If a direction under section 127(1) or (2) has been made in relation to an offence, the person to whom the direction relates shall be treated—

(a)for the purposes of section 63, and

(b)in the case of a direction under section 127(2), for the purposes of section 64,

as if he had been acquitted of the offence.

(2)The reference in subsection (1)(a) above to section 63 does not include subsection (3)(c) of that section.

(3)For the purposes of sections 63 and 64 a person shall be taken not to have had an offence taken into consideration when being sentenced if the sentence has been quashed.

Commencement Information

I129S. 65 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I130S. 65 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

66Civilian proceedings barring subsequent service proceedingsU.K.

(1)The Court Martial may not try a person for an offence under section 42 (criminal conduct) if the act constituting the offence amounts to an offence under the law of England and Wales for which a civilian court in England and Wales would on the ground of autrefois acquit or autrefois convict be debarred from trying him.

(2)The Court Martial may not try a person for a non-criminal service offence (that is, a service offence not under section 42) if—

(a)any act constituting an element of the offence amounts to an offence under the law of England and Wales (“offence X”); and

(b)a civilian court in England and Wales would on the ground of autrefois acquit be debarred from trying the person for offence X.

(3)Where an act constituting—

(a)an offence under section 42, or

(b)an element of a non-criminal service offence,

would amount to an offence under the law of England and Wales if it had been done in England or Wales, it shall be assumed for the purposes of subsection (1) or (2) to amount to that offence.

(4)Where a civilian court (anywhere) has taken an offence into consideration in sentencing a person and the sentence has not been quashed, the person shall be treated for the purposes of subsection (1) as having been convicted by that court of that offence.

(5)Where by reason of this section a person cannot be tried by the Court Martial for an offence—

(a)the Service Civilian Court may not try him for that offence; and

(b)a charge against him in respect of that offence may not be heard summarily by an officer.

(6)This section does not apply in any case where the question whether a person can be tried for an offence (or dealt with summarily for it) is determined by section 63.

(7)In this section “act” includes an omission and references to the doing of an act are to be read accordingly.

Commencement Information

I131S. 66 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I132S. 66 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

Part 3U.K.Powers of Arrest, Search and Entry

Chapter 1U.K.Arrest etc

Powers of arrestU.K.

67Power of arrest for service offenceU.K.

(1)A person who is reasonably suspected of being engaged in committing, or of having committed, a service offence may be arrested in accordance with subsection (2), (3), (4) or (5) by a person subject to service law.

(2)An officer may be arrested under subsection (1)—

(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

[F18(c)by a person who is lawfully exercising authority on behalf of a provost officer, and who—

(i)is an officer; or

(ii)is acting on the order of an officer.]

(3)A person of or below the rank or rate of warrant officer may be arrested under subsection (1)—

(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.

(4)A civilian subject to service discipline may be arrested under subsection (1)—

(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.

(5)Where none of subsections (2) to (4) applies in relation to the person to be arrested, that person may be arrested under subsection (1) by a service policeman.

(6)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 service law, by ordering him into arrest.

Textual Amendments

Modifications etc. (not altering text)

Commencement Information

I133S. 67 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I134S. 67 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

68Section 67: supplementaryU.K.

(1)In section 67(2)(a) the reference to being engaged in a mutiny is a reference to committing an offence under section 6.

(2)For the purposes of section 67(3), a person who—

(a)is suspected of having committed a service offence while a member of Her Majesty's forces, and

(b)is not a member of Her Majesty's forces or a civilian subject to service discipline,

is to be treated in relation to the offence as being of the rank or rate which he held when he was last a member of Her Majesty's forces.

(3)For the purposes of section 67(4), a person who—

(a)is suspected of having committed a service offence while a civilian subject to service discipline, and

(b)is not a member of Her Majesty's forces or a civilian subject to service discipline,

is to be treated in relation to the offence as if he were a civilian subject to service discipline.

(4)Where a person may be charged (within the meaning of section 61(1)) with an offence only with the consent of the Attorney General (see section 61(2)), section 67(1) has effect in relation to the offence as if for the words from “in accordance with” to the end there were substituted “ by a service policeman ” (and as if section 67(2) to (5) were omitted).

Commencement Information

I135S. 68 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I136S. 68 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

69Power of arrest in anticipation of commission of service offenceU.K.

(1)A service policeman may arrest a person whom he reasonably suspects of being about to commit a service offence.

(2)Subsection (6) of section 67 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 service custody until such time as a service policeman is satisfied that the risk of his committing the service offence concerned has passed.

Commencement Information

I137S. 69 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I138S. 69 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

Search on arrestU.K.

70Search by service policeman upon arrestU.K.

(1)A service policeman may search an arrested person if he has reasonable grounds for believing that the arrested person may present a danger to himself or others.

(2)A service policeman may search an arrested person for anything that is subject to search if he has reasonable grounds for believing that the arrested person may have any such thing concealed on him.

(3)For the purposes of this section a thing is “subject to search” if—

(a)the arrested person might use it to assist him to escape from service custody; or

(b)in the case of an arrest under section 67 or 69, it might be evidence relating to a service offence.

(4)References in this section to an arrested person are to a person arrested under section 67, 69, 110, 111 or 303.

Modifications etc. (not altering text)

Commencement Information

I139S. 70 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I140S. 70 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

71Search by other persons upon arrestU.K.

(1)A person (other than a service policeman) who is exercising a power of arrest may search the arrested person if he has reasonable grounds for believing that the arrested person may present a danger to himself or others.

(2)Subsection (4) (power to search arrested person for things subject to search) applies where—

(a)a person (“the arrested person”) is to be or has been arrested by a person other than a service policeman; and

(b)the commanding officer of the arrested person has reasonable grounds for believing that it is likely that that person would—

(i)escape from service custody, or

(ii)conceal, damage, alter or destroy evidence,

if a search for things subject to search could not be carried out before the earliest time by which it would be practicable to obtain the assistance mentioned in subsection (3).

(3)That assistance is—

(a)the assistance of a service policeman; or

(b)in a case where corresponding powers conferred by section 32(2)(a) of PACE or any other enactment are exercisable by a member of a UK police force, the assistance of a member of such a force who is capable of exercising those corresponding powers.

(4)Where this subsection applies, the commanding officer of the arrested person may order or authorise the person exercising the power of arrest to search the arrested person, on or after exercising the power, for anything that is subject to search.

(5)A commanding officer may give an order under subsection (4) only if he has reasonable grounds for believing that the arrested person may have concealed on him anything that is subject to search.

(6)A person authorised under subsection (4) may exercise the power of search conferred by that subsection only if he has reasonable grounds for believing that the arrested person may have concealed on him anything that is subject to search.

(7)Section 70(3) (meaning of things “subject to search”) applies for the purposes of this section.

(8)References in this section to arrest are to arrest under section 67, 110 or 111, and related expressions in this section are to be read accordingly.

(9)The Defence Council may by regulations provide for the delegation by a commanding officer of his functions under this section.

Commencement Information

I141S. 71 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I142S. 71 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

72Sections 70 and 71: supplementaryU.K.

(1)A person exercising the power conferred by section 70(2), or ordered or authorised under section 71(4), may search the arrested person only to the extent that is reasonably required for the purpose of discovering anything that is subject to search (within the meaning of those sections).

(2)Nothing in section 70 or 71 authorises anyone to require an arrested person to remove any of his clothing in public other than an outer coat, jacket, headgear or gloves.

(3)The reference in subsection (2) to headgear does not include headgear worn for religious reasons.

(4)Any power of search conferred by section 70 or 71 authorises the search of the arrested person's mouth.

Commencement Information

I143S. 72 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I144S. 72 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

73Seizure and retention after search upon arrestU.K.

(1)A person exercising the power conferred by section 70(1) or 71(1) may seize and retain anything he finds, if he has reasonable grounds for believing that the person searched might use it to cause physical injury to himself or to any other person.

(2)A person exercising the power conferred by section 70(2), or ordered or authorised under section 71(4), may seize and retain anything he finds, other than an item subject to legal privilege, if he has reasonable grounds for believing—

(a)that the person searched might use it to assist him to escape from service custody; or

(b)in the case of an arrest under section 67 or 69, that it is evidence of a service offence or has been obtained in consequence of the commission of a service offence.

(3)In subsection (2) “item subject to legal privilege” has the meaning given by section 10 of PACE.

Commencement Information

I145S. 73 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I146S. 73 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

74Power to make provision conferring power to search premises at which person arrestedU.K.

The Secretary of State may by order make provision, in relation to premises in which a person was when or immediately before he was arrested under section 67, which is equivalent to that made by any of the provisions of section 32 of PACE which relate to the power to enter and search premises, subject to such modifications as the Secretary of State considers appropriate.

Commencement Information

I147S. 74 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I148S. 74 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

Chapter 2U.K.Stop and Search

75Power of service policeman to stop and search persons, vehicles etcU.K.

(1)A service policeman may, in the circumstances mentioned in subsection (2) and in a place permitted by section 78, search any of the following for stolen or prohibited articles, controlled drugs [F19, psychoactive substances] or Her Majesty's stores—

(a)any person who is, or whom the service policeman has reasonable grounds for believing to be, a person subject to service law or a civilian subject to service discipline;

(b)a service vehicle which is in the charge of any person;

(c)any vehicle which is, or which the service policeman has reasonable grounds for believing to be, in the charge of a person subject to service law or a civilian subject to service discipline;

(d)anything which is in or on a service vehicle or a vehicle within paragraph (c).

(2)The circumstances are that the service policeman has reasonable grounds for suspecting—

(a)that the search will reveal stolen or prohibited articles;

(b)that the search will reveal Her Majesty's stores that have been unlawfully obtained;

[F20(c)in the case of the search of a person, that—

(i)the person is in possession of a controlled drug in circumstances in which he commits an offence under section 42 as respects which the corresponding offence under the law of England and Wales is an offence under the Misuse of Drugs Act 1971, or

(ii)the person is in possession of a psychoactive substance in circumstances in which he commits an offence under section 42 as respects which the corresponding offence under the law of England and Wales is an offence under the Psychoactive Substances Act 2016; or

(d)in the case of the search of a vehicle, that—

(i)the search will reveal a controlled drug that is in a person's possession in the circumstances mentioned in paragraph (c)(i), or

(ii)the search will reveal a psychoactive substance that is in a person's possession in the circumstances mentioned in paragraph (c)(ii).]

(3)A service policeman may detain for the purposes of a search under subsection (1)—

(a)any person who is, or whom the service policeman has reasonable grounds for believing to be, a person subject to service law or a civilian subject to service discipline;

(b)any person in charge of a service vehicle;

(c)any service vehicle; and

(d)any vehicle within subsection (1)(c).

(4)A service policeman may seize any article that he discovers in the course of a search under subsection (1) and that he has reasonable grounds for suspecting to be—

(a)a stolen or prohibited article;

(b)evidence of an offence under section 42 as respects which the corresponding offence under the law of England and Wales is an offence under the Misuse of Drugs Act 1971; F21...

[F22(ba)evidence of an offence under section 42 as respects which the corresponding offence under the law of England and Wales is an offence under the Psychoactive Substances Act 2016; or]

(c)any of Her Majesty's stores that have been unlawfully obtained.

Textual Amendments

Commencement Information

I149S. 75 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I150S. 75 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

76Stop and search by persons other than service policemenU.K.

(1)An officer may order or authorise a person subject to service law (other than a service policeman)—

(a)to search, in a place permitted by section 78—

(i)a person within subsection (2),

(ii)a vehicle in the charge of such a person, or

(iii)anything which is in or on such a vehicle,

for stolen or prohibited articles, controlled drugs [F23, psychoactive substances] or Her Majesty's stores;

(b)to detain such a person or vehicle for the purposes of such a search; and

(c)to seize any article that he discovers in the course of such a search and that he has reasonable grounds for suspecting to be an article within section 75(4)(a) to (c);

but this is subject to subsections (3) to (7).

(2)A person is within this subsection if he is—

(a)a person subject to service law whose commanding officer is the officer mentioned in subsection (1);

(b)a civilian subject to service discipline whose commanding officer is that officer;

(c)a person whom—

(i)that officer (in the case of an order under subsection (1)), or

(ii)the authorised person (in the case of an authorisation under that subsection),

has reasonable grounds for believing to be a person within paragraph (a) or (b).

(3)An order under subsection (1) may be given only in relation to a particular person or vehicle.

(4)An officer may give an order under subsection (1) only in the circumstances mentioned in section 75(2) (references to the service policeman being read as references to the officer).

(5)A person authorised under subsection (1) may exercise the power of search conferred by virtue of that subsection only in the circumstances mentioned in section 75(2) (references to the service policeman being read as references to the authorised person).

(6)An officer may give an order or authorisation under subsection (1) only if he has reasonable grounds for believing that it is likely that—

(a)an offence under section 42 would be committed, or

(b)a person who has committed such an offence would avoid apprehension,

if the powers conferred by this section could not be exercised before the earliest time by which it would be practicable to obtain the assistance mentioned in subsection (7).

(7)That assistance is—

(a)the assistance of a service policeman; or

(b)in a case where corresponding powers conferred by section 1 of PACE or any other enactment are exercisable by a member of a UK police force, the assistance of a member of such a force who is capable of exercising those corresponding powers.

Textual Amendments

Commencement Information

I151S. 76 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I152S. 76 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

77Sections 75 and 76: definitionsU.K.

(1)Subsections (2) to (6) apply for the purposes of sections 75 and 76.

(2)Controlled drug” has the meaning given by section 2 of the Misuse of Drugs Act 1971 (c. 38).

(3)Her Majesty's stores” has the same meaning as in the Public Stores Act 1875 (c. 25).

(4)Prohibited article” means—

(a)an offensive weapon, other than one in the possession of a person who is permitted to have it in his possession for the purposes of any of Her Majesty's forces;

(b)an article made or adapted for use in the course of or in connection with an offence under section 42 as respects which the corresponding offence under the law of England and Wales is an offence mentioned in subsection (8); or

(c)an article intended by the person having it with him for such use by him or by some other person.

[F24(4A)Psychoactive substance” has the meaning given by section 2(1) of the Psychoactive Substances Act 2016.]

(5)Service vehicle” means a vehicle which—

(a)belongs to any of Her Majesty's forces; or

(b)is in use for the purposes of any of those forces.

(6)Stolen”, in relation to an article, has the same meaning as it has by virtue of section 24 of the Theft Act 1968 (c. 60) in the provisions of that Act relating to goods which have been stolen.

(7)In subsection (4)(a) “offensive weapon” means any article—

(a)made or adapted for use for causing injury to persons; or

(b)intended by the person having it with him for such use by him or by some other person.

(8)The offences referred to in subsection (4)(b) are—

(a)an offence under section 1 of the Theft Act 1968 (theft);

(b)an offence under section 9 of that Act (burglary);

(c)an offence under section 12 of that Act (taking vehicle etc without consent);

(d)an offence under section 1 of the Criminal Damage Act 1971 (c. 48) (destroying or damaging property);

(e)an offence under section 1 of the Fraud Act 2006 (fraud).

(9)The reference in subsection (4)(b) to an offence under section 42 includes an act or omission which would constitute such an offence if done or made by a person subject to service law.

Textual Amendments

Commencement Information

I153S. 77 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I154S. 77 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

78Places in which powers under sections 75 and 76 may be exercisedU.K.

The powers conferred by sections 75 and 76 may be exercised only in—

(a)any place to which (at the time of exercise of the power) the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission;

(b)any other place to which people have ready access (at the time of exercise of the power) but which is not a dwelling or service living accommodation; and

(c)any premises which (at the time of exercise of the power) are permanently or temporarily occupied or controlled for the purposes of any of Her Majesty's forces but are not service living accommodation.

Commencement Information

I155S. 78 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I156S. 78 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

79Sections 75 and 76: limitation on searching persons or vehicles in certain gardens etcU.K.

(1)Subsection (2) applies if a person (“A”) is in a garden or yard, or on other land, occupied with and used for the purposes of—

(a)a dwelling; or

(b)any service living accommodation within section 96(1)(a).

(2)A person (“B”) may not by virtue of section 78(a) or (b) search A in the exercise of the power conferred by section 75 or 76 unless B has reasonable grounds for believing—

(a)that A does not reside in the dwelling or service living accommodation; and

(b)that A is not in the place in question with the express or implied permission of a person who resides in the dwelling or service living accommodation.

(3)Subsection (4) applies if a vehicle is in a garden or yard, or on other land, occupied with and used for the purposes of—

(a)a dwelling; or

(b)any service living accommodation within section 96(1)(a).

(4)A person may not by virtue of section 78(a) or (b) search the vehicle or anything in or on it in the exercise of the power conferred by section 75 or 76 unless he has reasonable grounds for believing—

(a)that the person in charge of the vehicle does not reside in the dwelling or service living accommodation; and

(b)that the vehicle is not in the place in question with the express or implied permission of a person who resides in the dwelling or service living accommodation.

(5)In this section “dwelling” does not include any dwelling which is permanently or temporarily occupied or controlled for the purposes of any of Her Majesty's forces.

Commencement Information

I157S. 79 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I158S. 79 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

80Searches under sections 75 and 76: supplementaryU.K.

(1)The time for which a person or vehicle may be detained for the purposes of a search under section 75 or 76 is such time as is reasonably required to permit a search to be carried out either at the place where the person or vehicle was first detained or nearby.

(2)Nothing in section 75 or 76 authorises anyone to require a person to remove any of his clothing in public other than an outer coat, jacket, headgear or gloves.

(3)The reference in subsection (2) to headgear does not include headgear worn for religious purposes.

(4)Nothing in this Chapter limits the powers exercisable on any premises if, or to the extent that, the premises are being used for keeping persons in service custody.

Commencement Information

I159S. 80 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I160S. 80 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

81Power to make further provision about searches under sections 75 and 76U.K.

The Secretary of State may by order make provision, in relation to the search of persons or vehicles under section 75 or 76, which is equivalent to that made by any provision of—

(a)section 2(1) to (7) and (9)(b) of PACE (provisions relating to search under section 1 of that Act and other powers), and

(b)section 3 of PACE (duty to make records concerning searches),

subject to such modifications as the Secretary of State considers appropriate.

Commencement Information

I161S. 81 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I162S. 81 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

82Application of Chapter to ships and aircraftU.K.

This Chapter applies to ships and aircraft as it applies to vehicles.

Commencement Information

I163S. 82 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I164S. 82 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

Chapter 3U.K.Powers of Entry, Search and Seizure

Entry for purposes of obtaining evidence etcU.K.

[F2583Power of judge advocate to authorise entry and searchU.K.

(1)On an application made by a service policeman, a judge advocate may, if the relevant requirements are met, issue a warrant authorising a service policeman to enter and search—

(a)one or more sets of premises specified in the application; or

(b)any relevant residential premises occupied or controlled by a person specified in the application, including such sets of premises as are so specified.

(2)The relevant requirements are met (subject to subsection (3)) if the judge advocate is satisfied that each set of premises specified in the application is relevant residential premises and that there are reasonable grounds for believing—

(a)that a relevant offence has been committed;

(b)that material which is likely to be of substantial value (whether by itself or together with other material) to the investigation of the offence is—

(i)in the case of a warrant authorising entry and search of specified premises, on those premises;

(ii)in the case of a warrant authorising entry and search of any relevant residential premises occupied or controlled by a specified person, on one or more sets of such premises occupied or controlled by that person;

(c)that the material would be likely to be admissible in evidence at a trial for the offence;

(d)that it does not consist of or include items subject to legal privilege, excluded material or special procedure material; and

(e)that at least one of the conditions specified in subsection (4) applies in relation to each set of premises specified in the application.

(3)If the application is for a warrant authorising entry and search of any relevant residential premises occupied or controlled by a specified person, the judge advocate must also be satisfied—

(a)that, because of the particulars of the offence mentioned in subsection (2)(a), there are reasonable grounds for believing that in order to find the material mentioned in subsection (2)(b) it is necessary to search relevant residential premises that are occupied or controlled by the person in question and are not specified in the application; and

(b)that it is not reasonably practicable to specify in the application all the relevant residential premises that the person occupies or controls and that might need to be searched.

(4)The conditions mentioned in subsection (2)(e) are—

(a)that it is not practicable to communicate with any person entitled to grant entry to the premises;

(b)that it is practicable to communicate with a person entitled to grant entry to the premises, but it is not practicable to communicate with any person entitled to grant access to the evidence;

(c)that entry to the premises will not be granted unless a warrant is produced;

(d)in the case of service living accommodation within section 96(1)(b) or (c)—

(i)that it is not practicable to communicate with the person or (as the case may be) any of the persons for whom the accommodation is provided; or

(ii)that there is no such person with whom it is practicable to communicate who will agree to grant access to the accommodation without the production of a warrant;

(e)that the purpose of a search may be frustrated or seriously prejudiced unless a service policeman arriving at the premises can secure immediate entry to them.

(5)A warrant under this section may authorise entry to and search of premises on more than one occasion if, on the application for the warrant, the judge advocate is satisfied that it is necessary to authorise multiple entries in order to achieve the purpose for which the warrant is issued.

(6)If the warrant authorises multiple entries, the number of entries authorised may be unlimited, or limited to a maximum.

(7)A service policeman may seize and retain anything for which a search has been authorised under subsection (1).]

Textual Amendments

Commencement Information

I165S. 83 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I166S. 83 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

84Section 83: definitionsU.K.

(1)Subsections (2) to (4) apply for the purposes of section 83.

(2)Relevant offence” means any of the following—

(a)an offence under section 42 as respects which the corresponding offence under the law of England and Wales is an indictable offence;

(b)a service offence specified for the purposes of this subsection in an order made by the Secretary of State;

(c)a service offence whose commission has led to, or is intended or is likely to lead to, any of the consequences mentioned in subsection (5).

[F26(2A)In subsection (2)(a), the reference to an “indictable offence” has effect as if it included a reference to low-value shoplifting (as defined in section 22A(3) of the Magistrates' Courts Act 1980).]

(3)Relevant residential premises” means—

(a)service living accommodation; or

(b)premises occupied as a residence (alone or with other persons) by—

(i)a person subject to service law;

(ii)a civilian subject to service discipline; or

(iii)a person who is suspected of having committed an offence in relation to which the warrant is sought.

(4)Items subject to legal privilege”, “excluded material” and “special procedure material” have the meanings given (respectively) by sections 10, 11 and 14 of PACE, but as if in section 11(2)(b) of PACE “enactment” included any provision of—

(a)an Act of the Scottish Parliament or Northern Ireland legislation; or

(b)an instrument made under such an Act or under Northern Ireland legislation.

(5)The consequences referred to in subsection (2)(c) are—

(a)serious harm to the security of the State or to public order;

(b)serious interference with the administration of justice or with the investigation of offences or of a particular offence;

(c)the death of any person;

(d)serious injury to any person;

(e)substantial financial gain to any person;

(f)serious financial loss to any person;

(g)the undermining of discipline or morale among members of any of Her Majesty's forces.

(6)In subsection (5)(d) “injury” includes any disease and any impairment of a person's physical or mental condition.

(7)For the purposes of subsection (5)(f), loss is serious if (having regard to all the circumstances) it is serious for the person who suffers it.

Textual Amendments

Commencement Information

I167S. 84 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I168S. 84 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

85Section 83: power to make supplementary provisionU.K.

The Secretary of State may by order—

(a)make provision authorising the use, in connection with applications under section 83 to judge advocates, of live television or telephone links or similar arrangements;

(b)make provision, in relation to warrants issued under that section or entry and search under such a warrant, which is equivalent to that made by any provision of sections 15 and 16 of PACE (which relate to the issue to constables of warrants to enter and search premises), subject to such modifications as the Secretary of State considers appropriate.

Commencement Information

I169S. 85 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I170S. 85 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

86Power to make provision as to access to excluded material etcU.K.

[F27(1)The Secretary of State may by order make provision that enables a service policeman, for the purposes of an investigation of a relevant offence and by making an application to a judge advocate in accordance with the order—

(a)to obtain access to excluded material or special procedure material on relevant residential premises; or

(b)to obtain access to material (other than items subject to legal privilege) on premises other than relevant residential premises.

(2)An order under this section (an “enabling order”) may in particular—

(a)so far as it relates to obtaining access to material on relevant residential premises, make provision equivalent to any provision of Schedule 1 to PACE (special procedure for obtaining production orders and warrants);

(b)so far as it relates to obtaining access to material on premises other than relevant residential premises, make provision equivalent to any provision of paragraphs 1 to 11 of that Schedule (special procedure for obtaining production orders);

(c)make provision equivalent to section 311(2) and (3) of this Act (certification to civil court of offences akin to contempt) in relation to a failure by a person within section 309(6) to comply with an order made by a judge advocate under the enabling order;

(d)authorise the use, in connection with any application made by virtue of the enabling order, of live television or telephone links or similar arrangements.

(2A)Any power under subsection (2) to make provision which is equivalent to another provision includes power to make provision which is equivalent subject to such modifications as the Secretary of State considers appropriate.]

(3)In this section “relevant residential premises” means—

(a)service living accommodation; or

(b)premises occupied as a residence (alone or with other persons) by—

(i)a person subject to service law;

(ii)a civilian subject to service discipline; or

(iii)a person who is suspected of having committed the relevant offence concerned.

[F28(4)In this section the following expressions have the meanings given by section 84—

  • “excluded material”;

  • “items subject to legal privilege”;

  • “relevant offence”;

  • “special procedure material”.]

Textual Amendments

F27S. 86(1)-(2A) substituted for s. 86(1)(2) (8.3.2012) by Armed Forces Act 2011 (c. 18), ss. 8(2), 32(3); S.I. 2012/669, art. 3(a)

Commencement Information

I171S. 86 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I172S. 86 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

87Power of CO to authorise entry and search by service policemanU.K.

(1)An officer may authorise a service policeman to enter and search premises within subsection (3) if the officer has reasonable grounds for believing—

[F29(a)that a relevant offence within the meaning of section 84 has been committed;

(b)that material which is likely to be of substantial value (whether by itself or together with other material) to the investigation of the offence is on the premises;

(c)that the material would be likely to be admissible in evidence at a trial for the offence;

(d)that it does not consist of or include items subject to legal privilege, excluded material or special procedure material (within the meaning given by section 84);

(e)that at least one of the conditions specified in section 83(4) applies; and

(f)that it is likely that the purpose of the search would be frustrated or seriously prejudiced if no search could be carried out before the time mentioned in subsection (2).]

(2)That time is the earliest time by which it would be practicable—

(a)for a service policeman to obtain and execute a warrant under section 83 authorising the entry and search of the premises; or

(b)in a case where a member of a UK police force could obtain a warrant under section 8 of PACE or any other enactment authorising the entry and search of the premises, for a member of such a force to obtain and execute such a warrant.

(3)The premises referred to in subsection (1) are—

(a)service living accommodation of a person whose commanding officer is the officer mentioned in that subsection;

(b)premises occupied as a residence (alone or with other persons) by—

(i)a person subject to service law whose commanding officer is that officer; or

(ii)a civilian subject to service discipline whose commanding officer is that officer;

(c)premises which that officer has reasonable grounds for believing to be within paragraph (b).

(4)A person authorised under subsection (1) may seize and retain anything for which the search under that subsection was authorised; but this is subject to section 89.

Textual Amendments

F29S. 87(1)(a)-(f) substituted for s. 87(1)(a)(b) (14.12.2012) by Armed Forces Act 2011 (c. 18), s. 32(3), Sch. 4 para. 6; S.I. 2012/2921, art. 3(b)

Commencement Information

I173S. 87 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I174S. 87 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

88Power of CO to authorise entry and search by other personsU.K.

(1)An officer may authorise a person subject to service law (other than a service policeman) to enter and search service living accommodation within subsection (3) if the officer has reasonable grounds for believing—

[F30(a)that a relevant offence within the meaning of section 84 has been committed;

(b)that material which is likely to be of substantial value (whether by itself or together with other material) to the investigation of the offence is on the premises;

(c)that the material would be likely to be admissible in evidence at a trial for the offence;

(d)that it does not consist of or include items subject to legal privilege, excluded material or special procedure material (within the meaning given by section 84);

(e)that at least one of the conditions specified in section 83(4) applies (the reference in section 83(4)(e) to a service policeman being read as a reference to a person authorised under this subsection); and

(f)that it is likely that the purpose of the search would be frustrated or seriously prejudiced if no search could be carried out before the time mentioned in subsection (2).]

(2)That time is the earliest time by which it would be practicable—

(a)to obtain the assistance of a service policeman; or

(b)in a case where a member of a UK police force could obtain a warrant under section 8 of PACE or any other enactment authorising the entry and search of the premises, for a member of such a force to obtain and execute such a warrant.

(3)Service living accommodation is within this subsection if it is—

(a)service living accommodation of a person whose commanding officer is the officer mentioned in subsection (1); and

(b)within section 96(1)(b) or (c).

(4)A person authorised under subsection (1) may seize and retain anything for which the search under that subsection was authorised; but this is subject to section 89.

Textual Amendments

F30S. 88(1)(a)-(f) substituted for s. 88(1)(a)(b) (14.12.2012) by Armed Forces Act 2011 (c. 18), s. 32(3), Sch. 4 para. 7; S.I. 2012/2921, art. 3(b)

Commencement Information

I175S. 88 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I176S. 88 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

89Review by judge advocate of certain searches under section 87 or 88U.K.

(1)Where any property has been seized and retained during a search under section 87 or 88, the officer who authorised the search must as soon as practicable request a judge advocate to undertake a review of the search and of the seizure and retention of anything seized and retained during it.

(2)The Secretary of State may by order make provision—

(a)with respect to the practice and procedure which is to apply in connection with reviews under this section;

(b)conferring functions on judge advocates in relation to such reviews.

Commencement Information

I177S. 89 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I178S. 89 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

Entry for purposes of arrest etcU.K.

90Entry for purpose of arrest etc by a service policemanU.K.

(1)A service policeman may for the purpose of arresting a person enter and search premises within subsection (2), but only if he has reasonable grounds for believing that the person is on the premises.

(2)The premises referred to in subsection (1) are—

(a)service living accommodation;

(b)premises occupied as a residence (alone or with other persons) by—

(i)a person subject to service law;

(ii)a civilian subject to service discipline; or

(iii)the person to be arrested;

(c)premises which the service policeman has reasonable grounds for believing to be within paragraph (b).

(3)In relation to premises containing two or more separate dwellings, the powers conferred by subsection (1) are powers to enter and search—

(a)any parts of the premises which the occupiers of any dwelling contained in the premises use in common with the occupiers of any other such dwelling; and

(b)any such dwelling that the service policeman has reasonable grounds for believing the person to be arrested to be in.

(4)A service policeman may, for the purpose of saving life or limb or preventing serious damage to property, enter and search any—

(a)service living accommodation;

(b)premises occupied as a residence (alone or with other persons) by—

(i)a person subject to service law; or

(ii)a civilian subject to service discipline; or

(c)premises which the service policeman has reasonable grounds for believing to be within paragraph (b).

(5)Any power of search conferred by this section is a power to search only to the extent that is reasonably required for the purpose for which the power of entry is exercised.

(6)References in this section to arrest are to arrest under section 67, 69, 110[F31, 111 or 303,] and related expressions in this section are to be read accordingly.

Textual Amendments

F31Words in s. 90(6) substituted (2.4.2012) by Armed Forces Act 2011 (c. 18), s. 32(3), Sch. 3 para. 3; S.I. 2012/669, art. 4(d)

Modifications etc. (not altering text)

Commencement Information

I179S. 90 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I180S. 90 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

91Entry for purpose of arrest etc by other personsU.K.

(1)An officer may authorise a person subject to service law (other than a service policeman) to exercise, in relation to premises within subsection (2), the powers conferred by section 90(1) on a service policeman; but this is subject to subsection (3).

(2)The premises are—

(a)service living accommodation of a person whose commanding officer is the officer mentioned in subsection (1);

(b)premises occupied as a residence (alone or with other persons) by—

(i)a person subject to service law whose commanding officer is that officer; or

(ii)a civilian subject to service discipline whose commanding officer is that officer;

(c)premises which that officer has reasonable grounds for believing to be within paragraph (b).

(3)An officer may give an authorisation under subsection (1) only if—

(a)the arrest is to be made under section 67;

(b)the offence in respect of which the arrest is to be made is a relevant offence (as defined by section 84); and

(c)the officer has reasonable grounds for believing that, if the arrest could not be made before the earliest time by which it would be practicable to obtain the assistance mentioned in subsection (4)—

(i)the person to be arrested might evade arrest, conceal, damage, alter or destroy evidence, or present a danger to himself or others; or

(ii)discipline or morale among members of any of Her Majesty's forces might be undermined.

(4)That assistance is—

(a)the assistance of a service policeman, or

(b)in a case where corresponding powers conferred by section 17(1)(b) or (c) of PACE or any other enactment are exercisable by a member of a UK police force, the assistance of a member of such a force capable of exercising those corresponding powers.

(5)An officer may authorise a person subject to service law (other than a service policeman) to exercise, in relation to premises within subsection (2), the powers conferred by section 90(4) on a service policeman; but this is subject to subsection (6).

(6)An officer may give an authorisation under subsection (5) in relation to premises within section 90(4)(b) or (c) only if it is not practicable to obtain the assistance of a service policeman in time to take the necessary action to save life or limb or prevent serious damage to property.

(7)The Defence Council may by regulations provide for the delegation by a commanding officer of his functions under this section.

Commencement Information

I181S. 91 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I182S. 91 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

Additional powers of entry, search and seizureU.K.

92Power to make provision conferring powers of entry and search after arrestU.K.

The Secretary of State may by order make provision, in relation to premises occupied or controlled by a person who—

(a)has been arrested under section 67, and

(b)is being held in service custody without being charged with a service offence,

which is equivalent to that made by any provision of section 18 of PACE (entry and search after arrest), subject to such modifications as the Secretary of State considers appropriate.

Commencement Information

I183S. 92 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I184S. 92 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

93Power to make provision conferring power of seizure etcU.K.

The Secretary of State may by order make provision, in relation to—

(a)a service policeman who, in connection with the investigation of a service offence, is lawfully on premises which are searchable by virtue of this Part, or

(b)any power of seizure or retention conferred by or under this Part,

which is equivalent to that made by any provision of sections 19 to 21 of PACE (which relate to seizure) or section 22(1) to (4) of that Act (power to retain property seized), subject to such modifications as the Secretary of State considers appropriate.

Commencement Information

I185S. 93 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I186S. 93 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

[F32CHAPTER 3AU.K.Testing for alcohol and drugs [F33in connection with a suspected offence or accident]

Textual Amendments

F32Pt. 3 Ch. 3A inserted (8.3.2012 for specified purposes, 1.11.2013 in so far as not already in force) by Armed Forces Act 2011 (c. 18), ss. 11(1), 32(3); S.I. 2012/669, art. 3(c); S.I. 2013/2501, art. 3(b)

F33Words in Pt. 3 Ch. 3A heading substituted (19.7.2018 for specified purposes, 1.1.2019 in so far as not already in force) by Armed Forces Act 2016 (c. 21), ss. 2(1), 19(1); S.I. 2018/876, reg. 2(a)(b)

Preliminary testing for alcohol and drugsU.K.

93ACommanding officer's power to require preliminary testsU.K.

[F34(A1)This section applies in the situations described in subsections (1) to (3C).]

(1)[F35The first situation is] where the commanding officer of a person subject to service law has reasonable cause to believe that that person—

(a)is committing a [F36safety-critical duty offence]; or

(b)has committed [F37such an] offence and still has alcohol or a drug in the body or is still under the influence of a drug.

F38(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)[F39The second situation is] where the commanding officer of a person who is a civilian subject to service discipline has reasonable cause to believe that that person—

(a)is committing an offence under section 42 as respects which the corresponding offence under the law of England and Wales is an offence under section 78, 79, 92 or 93 of the Railways and Transport Safety Act 2003 (maritime and aviation offences); or

(b)has committed such an offence under section 42 and still has alcohol or a drug in the body or is still under the influence of a drug.

[F40(3A)The third situation is where the commanding officer of a person subject to service law or of a person who is a civilian subject to service discipline has reasonable cause to believe that—

(a)there has been an accident involving an aircraft or a ship; and

(b)at the time of the accident, the person was carrying out an aviation function in relation to the aircraft or a marine function in relation to the ship.

(3B)The fourth situation is where the commanding officer of a person subject to service law or of a person who is a civilian subject to service discipline has reasonable cause to believe that—

(a)there has been an accident involving an aircraft or a ship;

(b)before the accident, the person carried out an aviation function in relation to the aircraft or a marine function in relation to the ship; and

(c)it is possible that the carrying out of the function by the person may have caused or contributed to—

(i)the occurrence of the accident;

(ii)any death, injury to a person, damage to property or environmental harm resulting from the accident; or

(iii)any risk of death or of such injury, damage or harm created by the accident.

(3C)The fifth situation is where the commanding officer of a person subject to service law or of a person who is a civilian subject to service discipline has reasonable cause to believe that—

(a)there has been an accident which resulted in or created a risk of—

(i)death;

(ii)serious injury to any person;

(iii)serious damage to property; or

(iv)serious environmental harm;

(b)the person—

(i)was carrying out a safety-critical function at the time of the accident; or

(ii)carried out a safety-critical function before the accident; and

(c)it is possible that the carrying out of the safety-critical function by the person may have caused or contributed to—

(i)the occurrence of the accident;

(ii)the death, injury, damage or harm; or

(iii)the risk of death, injury, damage or harm.]

(4)[F41Where this section applies,] the commanding officer may require the person mentioned in [F42subsection (1), (3), (3A), (3B) or (3C) (“the affected person”)] to co-operate with any one or more of—

(a)a preliminary breath test (see section 93B);

(b)a preliminary impairment test (see section 93C);

(c)a preliminary drug test (see section 93D).

(5)The Defence Council may by regulations provide for the delegation by a commanding officer of the commanding officer's functions under this section.

(6)A person who, without reasonable excuse, fails to comply with a requirement imposed under subsection (4) commits an offence.

(7)A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, but any sentence of imprisonment imposed in respect of the offence must not exceed two years.

(8)For the purposes of this section, a person does not co-operate with a preliminary test unless the person's co-operation—

(a)is sufficient to enable the test to be carried out; and

(b)is provided in such a way as to enable the objective of the test to be satisfactorily achieved.

Textual Amendments

F34S. 93A(A1) inserted (19.7.2018 for specified purposes, 1.1.2019 in so far as not already in force) by Armed Forces Act 2016 (c. 21), ss. 2(2)(a), 19(1); S.I. 2018/876, reg. 2(a)(b)

F35Words in s. 93A(1) substituted (19.7.2018 for specified purposes, 1.1.2019 in so far as not already in force) by Armed Forces Act 2016 (c. 21), ss. 2(2)(b), 19(1); S.I. 2018/876, reg. 2(a)(b)

F36Words in s. 93A(1)(a) substituted (19.7.2018 for specified purposes, 1.1.2019 in so far as not already in force) by Armed Forces Act 2016 (c. 21), ss. 2(2)(c), 19(1); S.I. 2018/876, reg. 2(a)(b)

F37Words in s. 93A(1)(b) substituted (19.7.2018 for specified purposes, 1.1.2019 in so far as not already in force) by Armed Forces Act 2016 (c. 21), ss. 2(2)(d), 19(1); S.I. 2018/876, reg. 2(a)(b)

F38S. 93A(2) omitted (19.7.2018 for specified purposes, 1.1.2019 in so far as not already in force) by virtue of Armed Forces Act 2016 (c. 21), ss. 2(2)(e), 19(1); S.I. 2018/876, reg. 2(a)(b)

F39Words in s. 93A(3) substituted (19.7.2018 for specified purposes, 1.1.2019 in so far as not already in force) by Armed Forces Act 2016 (c. 21), ss. 2(2)(f), 19(1); S.I. 2018/876, reg. 2(a)(b)

F40S. 93A(3A)-(3C) inserted (19.7.2018 for specified purposes, 1.1.2019 in so far as not already in force) by Armed Forces Act 2016 (c. 21), ss. 2(2)(g), 19(1); S.I. 2018/876, reg. 2(a)(b)

F41Words in s. 93A(4) inserted (19.7.2018 for specified purposes, 1.1.2019 in so far as not already in force) by Armed Forces Act 2016 (c. 21), ss. 2(2)(h)(i), 19(1); S.I. 2018/876, reg. 2(a)(b)

F42Words in s. 93A(4) substituted (19.7.2018 for specified purposes, 1.1.2019 in so far as not already in force) by Armed Forces Act 2016 (c. 21), ss. 2(2)(h)(ii), 19(1); S.I. 2018/876, reg. 2(a)(b)

[F4393AASection 93A: interpretationU.K.

(1)In section 93A(1), “safety-critical duty offence” means—

(a)an offence under section 20A; or

(b)an offence under section 20(1)(a) in respect of a safety-critical duty (as defined in section 93I).

(2)In section 93A(3A) and (3B)—

  • aviation function” means a role or activity in connection with aviation that is specified, or of a description specified, by regulations made by the Defence Council for the purposes of those subsections;

  • marine function” means a role or activity in connection with a ship or ships that is specified, or of a description specified, by regulations made by the Defence Council for the purposes of those subsections.

(3)The Defence Council may specify a role or activity (or description of role or activity) under subsection (2) only if carrying it out with ability impaired by alcohol or drugs would result in a risk of—

(a)death,

(b)serious injury to any person,

(c)serious damage to property, or

(d)serious environmental harm,

but this is subject to subsection (4).

(4)The Defence Council's powers under subsection (2) include power to specify a role or activity that is undertaken in preparation for, or in connection with, the carrying out of a role or activity (or description of role or activity) that satisfies the test in subsection (3), either by specifying such a role or activity generally or by specifying a particular role or activity.

(5)For the purposes of section 93A(3A) and (3B), an accident does not involve an aircraft or a ship simply because it takes place on an aircraft or ship.

(6)In section 93A(3C), references to the carrying out of a safety-critical function are to—

(a)the performance by a person subject to service law of a duty specified, or of a description specified, by regulations under section 20A(2) or of any other safety-critical duty (as defined in section 93I); or

(b)the carrying out by a person who is a civilian subject to service discipline, in the course of the person's employment, of a role or activity which, if it were carried out by a person subject to service law in the course of his or her duty, would be a safety-critical duty.

(7)References in section 93A and this section to a person carrying out a function include a failure by the person to carry out a function at a time when the person is responsible for carrying it out (and related expressions are to be read accordingly).]

Textual Amendments

F43S. 93AA inserted (19.7.2018 for specified purposes, 1.1.2019 in so far as not already in force) by Armed Forces Act 2016 (c. 21), ss. 2(3), 19(1); S.I. 2018/876, reg. 2(a)(b)

93BPreliminary breath testU.K.

(1)[F44 In a situation described in section 93A(1) or (3),] a preliminary breath test is a procedure administered by a service policeman under which—

(a)the [F45affected] person provides a specimen of breath; and

(b)the specimen is used for the purpose of obtaining, by means of an approved device, an indication whether the proportion of alcohol in the person's breath or blood is likely to be such as is necessary for the commission of the suspected offence.

[F46(1A)In a situation described in section 93A(3A), (3B) or (3C), a preliminary breath test is a procedure administered by a service policeman under which—

(a)the affected person provides a specimen of breath; and

(b)the specimen is used for the purpose of obtaining, by means of an approved device, an indication of the proportion of alcohol in the person's breath or blood.]

(2)A preliminary breath test may be administered only—

(a)at or near the place where the requirement to co-operate with the test is imposed;

(b)at a service police establishment determined by the service policeman; or

(c)at a medical establishment.

(3)In this section “the suspected offence” means an offence mentioned in section [F4793A(1)(a)] or (3)(a) which the commanding officer has reasonable cause to believe has been committed.

Textual Amendments

F44Words in s. 93B(1) inserted (19.7.2018 for specified purposes, 1.1.2019 in so far as not already in force) by Armed Forces Act 2016 (c. 21), ss. 2(4)(a), 19(1); S.I. 2018/876, reg. 2(a)(b)

F45Word in s. 93B(1)(a) substituted (19.7.2018 for specified purposes, 1.1.2019 in so far as not already in force) by Armed Forces Act 2016 (c. 21), ss. 2(4)(b), 19(1); S.I. 2018/876, reg. 2(a)(b)

F46S. 93B(1A) inserted (19.7.2018 for specified purposes, 1.1.2019 in so far as not already in force) by Armed Forces Act 2016 (c. 21), ss. 2(4)(c), 19(1); S.I. 2018/876, reg. 2(a)(b)

F47Word in s. 93B(3) substituted (19.7.2018 for specified purposes, 1.1.2019 in so far as not already in force) by Armed Forces Act 2016 (c. 21), ss. 2(4)(d), 19(1); S.I. 2018/876, reg. 2(a)(b)

93CPreliminary impairment testU.K.

(1)A preliminary impairment test is a procedure under which a service policeman—

(a)observes the [F48affected] person performing tasks specified by the service policeman; and

(b)makes such other observations of the [F49affected] person's physical state as the service policeman thinks expedient.

(2)A preliminary impairment test may be administered only—

(a)at or near the place where the requirement to co-operate with the test is imposed;

(b)at a service police establishment determined by the service policeman; or

(c)at a medical establishment.

(3)The Provost Marshals (acting jointly) must issue, and may from time to time revise, a code of practice about—

(a)the kind of task that may be specified for the purposes of a preliminary impairment test;

(b)the kind of observation of physical state that may be made in the course of a preliminary impairment test;

(c)the way in which a preliminary impairment test should be administered; and

(d)the inferences that may be drawn by a service policeman from observations made in the course of a preliminary impairment test.

(4)In subsection (3) “the Provost Marshals” means the Provost Marshals of each of the service police forces.

(5)A service policeman administering a preliminary impairment test must have regard to the code of practice.

(6)A service policeman may administer a preliminary impairment test only if the service policeman is approved for that purpose by a Provost Marshal of a service police force.

(7)A code of practice under this section may include provision about—

(a)the giving of approval under subsection (6); and

(b)in particular, the kind of training that a service policeman should have undergone, or the kind of qualification that a service policeman should possess, before being approved under that subsection.

Textual Amendments

F48Word in s. 93C(1)(a) substituted (19.7.2018 for specified purposes, 1.1.2019 in so far as not already in force) by Armed Forces Act 2016 (c. 21), ss. 2(5), 19(1); S.I. 2018/876, reg. 2(a)(b)

F49Word in s. 93C(1)(b) substituted (19.7.2018 for specified purposes, 1.1.2019 in so far as not already in force) by Armed Forces Act 2016 (c. 21), ss. 2(5), 19(1); S.I. 2018/876, reg. 2(a)(b)

93DPreliminary drug testU.K.

(1)A preliminary drug test is a procedure administered by a service policeman under which—

(a)a specimen of sweat or saliva is obtained from the [F50affected] person; and

(b)the specimen is used for the purpose of obtaining, by means of an approved device, an indication whether there is a drug in the person's body.

(2)A preliminary drug test may be administered only—

(a)at or near the place where the requirement to co-operate with the test is imposed;

(b)at a service police establishment determined by the service policeman; or

(c)at a medical establishment.

Textual Amendments

F50Word in s. 93D(1)(a) substituted (19.7.2018 for specified purposes, 1.1.2019 in so far as not already in force) by Armed Forces Act 2016 (c. 21), ss. 2(6), 19(1); S.I. 2018/876, reg. 2(a)(b)

Provision of specimens for analysisU.K.

93EProvision of specimens for analysisU.K.

(1)This section applies in relation to an investigation into whether a person has committed—

(a)an offence under section 20A;

(b)an offence under section 20(1)(a) in respect of a safety-critical duty (as defined by section 93I); or

(c)an offence under section 42 as respects which the corresponding offence under the law of England and Wales is an offence under section 78, 79, 92 or 93 of the Railways and Transport Safety Act 2003.

(2)In the course of the investigation a service policeman may require the person—

(a)to provide two specimens of breath for analysis by means of an approved device;

(b)to provide a specimen of blood or urine for a laboratory test.

(3)A requirement under this section may be imposed only at a service police establishment or a medical establishment.

(4)For the purposes of this section and section 93F, a person does not provide a specimen of breath for analysis unless the specimen—

(a)is sufficient to enable the analysis to be carried out; and

(b)is provided in such a way as to enable the objective of the analysis to be satisfactorily achieved.

(5)For the purposes of this section and section 93F, a person provides a specimen of blood if and only if—

(a)he consents to the taking of such a specimen from him;

(b)the specimen is taken from him by a registered medical practitioner or registered nurse; and

(c)the specimen is of sufficient quantity to enable it to be divided into two parts for the purposes of analysis.

(6)For the purposes of this section and section 93F, a person provides a specimen of urine if and only if the specimen—

(a)is provided within one hour of the requirement for its provision being made and after the provision of a previous specimen of urine; and

(b)is of sufficient quantity to enable it to be divided into two parts for the purposes of analysis.

(7)Where the provision of a specimen may be required under this section, the question of whether it is to be breath, blood or urine, and in the case of blood the question of who is to be asked to take it, is to be decided by the service policeman imposing the requirement.

(8)But where a service policeman decides for the purposes of subsection (7) to require the provision of a specimen of blood, there shall be no requirement to provide such a specimen if—

(a)the registered medical practitioner who is asked to take the specimen is of the opinion that, for medical reasons, it cannot or should not be taken; or

(b)the registered nurse who is asked to take it is of that opinion and there is no contrary opinion from a registered medical practitioner;

and where by virtue of this subsection there can be no requirement to provide a specimen of blood, the service policeman may require a specimen of urine instead.

(9)A service policeman must, on requiring a person to provide a specimen in pursuance of this section, warn the person that a failure to provide it may render the person liable to proceedings for a service offence.

(10)A person who, without reasonable excuse, fails to provide a specimen when required to do so in pursuance of this section is guilty of an offence.

(11)A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, but any sentence of imprisonment imposed in respect of the offence must not exceed two years.

93FFurther provision about specimens under section 93EU.K.

(1)Where two specimens of breath are provided by a person in pursuance of section 93E, the one with the lower proportion of alcohol in the breath is to be used and the other is to be disregarded.

(2)If the specimen with the lower proportion of alcohol contains no more than a prescribed proportion of alcohol, the person who provided it may claim that it should be replaced by such a specimen of blood or urine as may be required under section 93E.

(3)If the person then provides such a specimen, neither specimen of breath is to be used.

(4)In subsection (2) “prescribed” means prescribed by regulations made by the Defence Council for the purposes of this section; and the regulations may prescribe different proportions of alcohol in relation to different kinds of offence.

(5)On a request made at the time a specimen of blood or urine is provided under section 93E, the person who provided the specimen must be given a part of the specimen sufficient for the purposes of analysis.

93GSpecimens of blood from persons incapable of consentingU.K.

(1)A service policeman may request a registered medical practitioner to take a specimen of blood from a person (“the person concerned”), irrespective of whether that person consents, if—

(a)the service policeman would (in the absence of any incapacity of the person concerned and of any objection under section 93H) be entitled under section 93E to require the person concerned to provide a specimen of blood for a laboratory test;

(b)it appears to the service policeman that the person concerned has been involved in an accident that constitutes or is comprised in the matter that is under investigation or the circumstances of that matter;

(c)it appears to the service policeman that the person concerned is or may be incapable of giving a valid consent to the taking of a specimen of blood (whether or not consent has purportedly been given); and

(d)it appears to the service policeman that that person's incapacity is attributable to medical reasons.

(2)It is lawful for a registered medical practitioner to whom a request is made under this section, if that practitioner thinks fit—

(a)to take a specimen of blood from the person concerned irrespective of whether that person consents; and

(b)to provide the specimen to a service policeman.

(3)The specimen must be of sufficient quantity to enable it to be divided into two parts for the purposes of analysis.

(4)If a specimen is taken in pursuance of a request under this section, it must not be subjected to a laboratory test unless the person concerned—

(a)has been informed that it was taken;

(b)has been required by a service policeman to give permission for a laboratory test of the specimen; and

(c)has given permission.

(5)A service policeman, on requiring a person to give permission for the purposes of this section for a laboratory test of a specimen, must warn the person that a failure to give the permission may render the person liable to proceedings for a service offence.

(6)On a request made at the time a person gives permission under this section for a laboratory test of a specimen, that person must be given a part of the specimen sufficient for the purposes of analysis.

(7)A person who, without reasonable excuse, fails to give permission for a laboratory test of a specimen taken from the person under this section is guilty of an offence.

(8)A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, but any sentence of imprisonment imposed in respect of the offence must not exceed two years.

General provisions relating to testingU.K.

93HPatients in medical establishmentsU.K.

(1)This section applies in relation to a person who is at a medical establishment as a patient.

(2)The person shall not be required to co-operate with a preliminary test or to provide a specimen under section 93E unless the responsible medical professional has been notified of the proposal to impose the requirement.

(3)If the responsible medical professional objects on medical grounds the requirement must not be imposed.

(4)If the responsible medical professional does not object on medical grounds and the requirement is imposed, the requirement must be for co-operation with a preliminary test administered, or for the provision of a specimen, at the medical establishment.

(5)No specimen of blood may be taken from the person under section 93G, and the person may not be required to give permission for a laboratory test of a specimen taken under that section, unless the responsible medical professional—

(a)has been notified of the proposal that the specimen be taken or of the proposal to make the requirement; and

(b)has not objected on medical grounds.

(6)In this section “the responsible medical professional” means—

(a)the registered medical practitioner in immediate charge of the person's case; or

(b)if there is no such registered medical practitioner, the registered nurse in immediate charge of the person's case.

(7)In this section “medical grounds” means—

(a)in relation to a requirement to co-operate with a preliminary test or to provide a specimen under section 93E, the ground that the requirement, or compliance with it by the patient, or any warning required by section 93E(9), would be prejudicial to the proper care and treatment of the patient;

(b)in relation to the taking of a specimen under section 93G or a requirement to give permission for a laboratory test of a specimen taken under that section, the ground that the taking of the specimen, the requirement, or any warning required by section 93G(5), would be so prejudicial.

93IDefinitions for purposes of Chapter 3AU.K.

(1)In this Chapter—

  • approved”, in relation to a device, means approved by the Secretary of State;

  • drug” includes any intoxicant other than alcohol;

  • medical establishment” means any facility at which medical or surgical treatment for in- or out-patients is provided;

  • preliminary test” means—

    (a)

    a preliminary breath test within the meaning of section 93B;

    (b)

    a preliminary impairment test within the meaning of section 93C; or

    (c)

    a preliminary drug test within the meaning of section 93D;

  • safety-critical duty” means a duty which the commanding officer of the person mentioned in section 93A(1) [F51, 93AA(6)(a)] or 93E(1) reasonably believes is such that performing the duty with ability impaired by alcohol or drugs would result in a risk of—

    (a)

    death;

    (b)

    serious injury to any person;

    (c)

    serious damage to property; or

    (d)

    serious environmental harm;

  • service police establishment” means any building or part of a building, any structure, or any room (whether on land or on a ship) which is used by a service policeman for the performance of his duties.

(2)In this Chapter any reference to a service policeman includes a Royal Navy coxswain.]

Textual Amendments

F51Word in s. 93I inserted (19.7.2018 for specified purposes, 1.1.2019 in so far as not already in force) by Armed Forces Act 2016 (c. 21), ss. 2(7), 19(1); S.I. 2018/876, reg. 2(a)(b)

Chapter 4U.K.Supplementary

94Property in possession of service police or COU.K.

(1)The Secretary of State may by regulations make provision with respect to the disposal of property which has come into the possession of a service policeman or a person's commanding officer in connection with the investigation of a service offence.

(2)The regulations may in particular—

(a)enable the Court Martial, the Service Civilian Court or a judge advocate to make an order for the delivery of the property to the person appearing to the court or judge advocate to be the owner of the property or, if the owner cannot be ascertained, to make such order with respect to the property as the court or judge advocate considers appropriate;

(b)enable the commanding officer of a person charged with a service offence—

(i)to determine that any property seized under this Part in connection with the investigation of a service offence should be delivered to the person appearing to the commanding officer to be the owner of the property; or

(ii)if the owner cannot be ascertained, to make such other determination with respect to the delivery of the property as the commanding officer considers appropriate;

(c)enable the commanding officer of a person—

(i)in whose possession the property was before it was seized under this Part, or

(ii)who claims to be the owner of the property,

to determine that it should be delivered to that person;

(d)make provision as to appeals against orders made by virtue of paragraph (a) and determinations made by virtue of paragraph (b) or (c); and

(e)provide that, at the end of a specified period from the making of an order by virtue of paragraph (a), the right of any person to take proceedings for the recovery of the property is to cease.

(3)A determination made by virtue of subsection (2)(b) or (c) does not affect the right of any person to recover any property delivered in pursuance of the determination from the person to whom it is delivered.

Commencement Information

I187S. 94 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I188S. 94 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

95Saving provisionU.K.

(1)Nothing in this Part affects—

(a)any power of a service policeman or commanding officer to enter and search, or order the entry and search of, premises which are occupied for the purposes of any of Her Majesty's forces, to the extent that the premises do not constitute service living accommodation;

(b)any power of a commanding officer, otherwise than in connection with the investigation of a service offence or the exercise of any power of arrest, to enter and search, or order the entry and search of, service living accommodation;

(c)any power of a commanding officer, otherwise than in connection with the investigation of a service offence or the exercise of any power of arrest, to search, or order the search of, a person or to stop and search, or order the stop and search of, a service vehicle; or

(d)any power of a service policeman or commanding officer to search, or order the search of, a service vehicle which is not in the charge of any person.

(2)In subsection (1) “service vehicle” means a vehicle, ship or aircraft which—

(a)belongs to any of Her Majesty's forces; or

(b)is in use for the purposes of any of those forces.

Commencement Information

I189S. 95 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I190S. 95 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

96“Service living accommodation”, “premises” and other definitionsU.K.

(1)In this Part “service living accommodation” means (subject to subsection (2))—

(a)any building or part of a building which is occupied for the purposes of any of Her Majesty's forces but is provided for the exclusive use of a person [F52within subsection (1A)], or of such a person and members of his family, as living accommodation or as a garage;

(b)any other room, structure or area (whether on land or on a ship) which is occupied for the purposes of any of Her Majesty's forces and is used for the provision of sleeping accommodation for one or more persons [F53within subsection (1A)]; or

(c)any locker which—

(i)is provided by any of Her Majesty's forces for personal use by a person [F54within subsection (1A)] in connection with his sleeping accommodation, but

(ii)is not in a room, structure or area falling within paragraph (b).

[F55(1A)The following are persons within this subsection—

(a)a person subject to service law;

(b)a civilian subject to service discipline.]

(2)Premises are not service living accommodation for the purposes of this Part if, or to the extent that, they are being used for keeping persons in service custody.

(3)In this Part “premises” includes any place and, in particular, includes—

(a)any vehicle, ship or aircraft; and

(b)any tent or movable structure.

(4)In this Part “enactment” includes any provision of—

(a)an Act of the Scottish Parliament or Northern Ireland legislation, or

(b)an instrument made under such an Act or under Northern Ireland legislation,

and also includes any rule of law in Scotland.

Textual Amendments

F52Words in s. 96(1)(a) substituted (2.4.2012) by Armed Forces Act 2011 (c. 18), s. 32(3), Sch. 3 para. 4(2); S.I. 2012/669, art. 4(d)

F53Words in s. 96(1)(b) substituted (2.4.2012) by Armed Forces Act 2011 (c. 18), s. 32(3), Sch. 3 para. 4(2); S.I. 2012/669, art. 4(d)

F54Words in s. 96(1)(c) substituted (2.4.2012) by Armed Forces Act 2011 (c. 18), s. 32(3), Sch. 3 para. 4(2); S.I. 2012/669, art. 4(d)

Commencement Information

I191S. 96 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I192S. 96 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

97Power to use reasonable forceU.K.

[F56(1)]Where a power is conferred on any person by or under this Part, he may use reasonable force, if necessary, in the exercise of the power.

[F57(2)Subsection (1) does not apply in relation to powers conferred by Chapter 3A of this Part.]

Textual Amendments

F56S. 97(1): s. 97 renumbered as s. 97(1) (1.11.2013) by Armed Forces Act 2011 (c. 18), s. 32(3), Sch. 4 para. 8(1); S.I. 2013/2501, art. 3(d)

Commencement Information

I193S. 97 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I194S. 97 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

Part 4U.K.Custody

Modifications etc. (not altering text)

C22Pt. 4 modified by 1968 c. 20, s. 20(1G)(1H) (as substituted (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force) by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 8 para. 21(a); S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4)

Chapter 1U.K.Custody without Charge

98Limitations on custody without chargeU.K.

(1)Except in accordance with sections 99 to 102, a person arrested under section 67 may not be kept in service custody without being charged with a service offence.

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

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

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

the commanding officer must, subject to subsection (3), order his immediate release from service custody.

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

(4)Section 301(4) (cases where persons temporarily released from service detention are unlawfully at large) applies for the purposes of this section.

Modifications etc. (not altering text)

Commencement Information

I195S. 98 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I196S. 98 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

99Authorisation by commanding officer of custody without chargeU.K.

(1)Where a person is arrested under section 67—

(a)the arrest, and

(b)any grounds on which he is being kept in service custody without being charged with a service offence,

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

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

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

(b)to obtain such evidence by questioning him.

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

(a)whether the requirements of subsection (4) 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 service 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 service custody without being charged with a service offence is necessary to secure or preserve evidence relating to a service 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 service custody.

(5)Subject to subsection (6), an authorisation under subsection (4) ends not more than 12 hours after it is given.

(6)Except in accordance with section 101 or 102, a person may not be kept in service custody later than 48 hours after the arrest without being charged with a service offence.

(7)Where a person, while kept in service custody without being charged with a service offence, is arrested under section 67 for another service offence—

(a)subsections (1) to (5) apply in relation to the arrest for that other offence;

(b)the reference in subsections (2)(a) and (4)(a) to a service offence for which he is under arrest includes the service offence for which he was originally arrested;

(c)the reference in subsection (6) to the arrest is to be read as a reference to the arrest for the service offence for which he was originally arrested; and

(d)the last authorisation under subsection (4) (if any) given in relation to him ceases to have effect (and accordingly section 100 ceases to apply in relation to that authorisation).

Modifications etc. (not altering text)

Commencement Information

I197S. 99 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I198S. 99 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

100Review of custody by commanding officerU.K.

(1)The commanding officer of a person kept in service custody in accordance with section 99 must, subject to subsections (3) and (4), review the keeping of that person in service custody not later than the end of the period for which it is authorised.

(2)Subsections (4) and (5) of section 99 apply on each review under this section as they apply where a report is received under section 99(1).

(3)A review may be postponed if, having regard to all the circumstances prevailing at the expiry of the last authorisation under section 99(4), it is not practicable to carry out the review at that time.

(4)A review may also be postponed if at the expiry of the last authorisation under section 99(4)—

(a)the person in service 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 the person is being questioned; or

(b)the commanding officer is not readily available.

(5)Subsection (4) does not limit the power to postpone under subsection (3).

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

(a)it must be carried out as soon as practicable after the expiry of the last authorisation under section 99(4); and

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

Modifications etc. (not altering text)

Commencement Information

I199S. 100 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I200S. 100 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

101Extension by judge advocate of custody without chargeU.K.

(1)If, on an application by the commanding officer of a person arrested under section 67, a judge advocate is satisfied that there are reasonable grounds for believing that the continued keeping of that person in service custody is justified, the judge advocate may by order authorise the keeping of that person in service custody.

(2)A judge advocate 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 is entitled to be legally represented at the hearing and, if he is not so represented but wishes to be so represented—

(a)the judge advocate must adjourn the hearing to enable him to obtain representation; and

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

(4)The period for which a judge advocate, on an application under this section, may authorise the keeping of a person in service custody is such period, ending not more than 96 hours after the arrest, as he considers appropriate having regard to the evidence before him.

(5)Where a person, while kept in service custody without being charged with a service offence, is arrested under section 67 for another service offence, the reference in subsection (4) to the arrest is to be read as a reference to the arrest for the service offence for which he was originally arrested.

(6)For the purposes of this section and section 102, the continued keeping of a person in service custody is justified only if—

(a)keeping him in custody without being charged with a service offence is necessary to secure or preserve evidence relating to a service 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.

Modifications etc. (not altering text)

Commencement Information

I201S. 101 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I202S. 101 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

102Further provision about applications under section 101U.K.

(1)Subject to subsection (2), an application under section 101 may be made—

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

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

(2)Where subsection (1)(b) applies, an authorisation on a review under section 100 may be for a period ending more than 48 hours after the arrest, 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 arrest.

(3)If—

(a)an application under section 101 is made more than 48 hours after the arrest, and

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

the judge advocate must refuse the application.

(4)Where on an application under section 101 relating to any person the judge advocate is not satisfied that there are reasonable grounds for believing that the continued keeping of that person in service custody is justified, he must—

(a)refuse the application; or

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

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

(6)Where a judge advocate refuses an application under section 101 at any time less than 48 hours after the arrest, he may direct that the person to whom it relates must, without delay, be charged with a service offence or released from service custody.

(7)Where a judge advocate refuses an application under section 101 at any later time, he must direct that the person to whom it relates must, without delay, be charged with a service offence or released from service custody.

(8)Where a person, while kept in service custody without being charged with a service offence, is arrested under section 67 for another service offence, any reference in this section to the arrest is to be read as a reference to the arrest for the service offence for which he was originally arrested.

Modifications etc. (not altering text)

Commencement Information

I203S. 102 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I204S. 102 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

103Custody without charge: other casesU.K.

Sections 98 to 102 apply—

(a)where a person is transferred to or taken into service custody under section 313(4), 315(4), 316(3) or 317(4), and

(b)in any other case where a person arrested by a member of a UK police force or overseas police force is transferred to service custody,

as they apply where a person is arrested under section 67, subject to such modifications as the Secretary of State may by order prescribe.

Commencement Information

I205S. 103 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I206S. 103 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

104Custody without charge: supplementaryU.K.

(1)The Secretary of State may by regulations make provision—

(a)for the delegation by the commanding officer of a person in service custody of any of the commanding officer's functions under sections 98 to 102;

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

(c)for the keeping of written records relating to compliance with any requirement of sections 69(3)(a) and 98 to 102 or of regulations under paragraph (b).

(2)Any reference in sections 99 to 102 to a period of time is to be treated as approximate only.

Modifications etc. (not altering text)

Commencement Information

I207S. 104 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I208S. 104 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

Chapter 2U.K.Custody etc after Charge

Custody after chargeU.K.

105Custody after chargeU.K.

(1)Where a person (referred to in this section and sections 106 to 109 as “the accused”) is kept in service custody after being charged with a service offence, he must be brought before a judge advocate as soon as practicable.

(2)At a hearing under subsection (1), the judge advocate may by order authorise the keeping of the accused in service custody, but only if one or more of conditions A to C in section 106 are met.

(3)The period for which a judge advocate may, by an order under subsection (2), authorise the keeping of the accused in service custody is such period, ending not later than eight days after the day on which the order is made, as he considers appropriate having regard to the evidence before him.

(4)For the purpose of deciding whether condition A in section 106 is met, the judge advocate must have regard to such of the following considerations as appear to him to be relevant—

(a)the nature and seriousness of the offence with which the accused is charged (and the probable method of dealing with him for it),

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

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

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

as well as to any other considerations which appear to be relevant.

(5)If—

(a)the accused is charged with an offence under section 42 as respects which the corresponding offence under the law of England and Wales is—

(i)murder,

(ii)manslaughter,

(iii)an offence under section 1 of the Sexual Offences Act 2003 (c. 42) (rape), or

(iv)an attempt to commit an offence within sub-paragraph (i) or (iii),

(b)representations are made as to any of the matters mentioned in condition A in section 106, and

(c)the judge advocate decides not to authorise the keeping of the accused in service custody,

the judge advocate must state the reasons for his decision and must cause those reasons to be included in the record of the proceedings.

(6)An order under subsection (2) does not authorise the keeping of the accused in service custody—

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

(b)at any time after he is sentenced in respect of the offence with which he is charged.

(7)Subsection (1) does not apply where the accused is charged with a service offence at a time when he is kept in service custody by reason of a sentence passed in respect of a service offence or of an order under subsection (2), unless that reason ceases to apply.

Modifications etc. (not altering text)

Commencement Information

I209S. 105 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I210S. 105 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

106Conditions A to DU.K.

(1)Condition A is that the judge advocate is satisfied that there are substantial grounds for believing that the accused, if released from service custody, would—

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

(b)commit an offence while released; or

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

(2)Condition B is that the judge advocate is satisfied that the accused should be kept in service custody for his own protection or, if he is aged under 17, for his own welfare or in his own interests.

(3)Condition C is that the judge advocate is satisfied that, because of lack of time since the accused was charged, it has not been practicable to obtain sufficient information for the purpose of deciding whether condition A or B is met.

(4)Condition D is that the accused's case has been adjourned for inquiries or a report and it appears to the judge advocate that it would be impracticable to complete the inquiries or make the report without keeping the accused in service custody.

Commencement Information

I211S. 106 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I212S. 106 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

107Release from custody after chargeU.K.

(1)Subsections (2) and (3) apply where, at a hearing under section 105(1), the judge advocate does not authorise keeping the accused in service custody.

(2)Subject to subsection (3), the accused must be released from service custody without delay.

(3)The accused may be required to comply, before release or later, with such requirements as appear to the judge advocate to be necessary—

(a)to secure his attendance at any hearing in the proceedings against him;

(b)to secure that he does not commit an offence while released from custody;

(c)to secure that he does not interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person; or

(d)for his own protection or, if he is aged under 17, for his own welfare or in his own interests.

(4)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 (3) (including such a requirement as previously varied under this subsection) may be varied or discharged by a judge advocate.

(5)A person on whom a requirement has been imposed by virtue of subsection (3)(a) commits an offence if, without reasonable excuse, he fails to attend any hearing to which the requirement relates.

(6)A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, but any sentence of imprisonment imposed in respect of the offence must not exceed two years.

Modifications etc. (not altering text)

Commencement Information

I213S. 107 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I214S. 107 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

108Review of custody after chargeU.K.

(1)Where the keeping of the accused in service custody is authorised by an order under section 105(2), it must be reviewed by a judge advocate 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 must—

(a)release the accused from service custody; or

(b)request a review.

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

(4)Sections 105(2) to (6), 106 and 107 apply in relation to a review as they apply in relation to a hearing under section 105(1); but the application of section 105(3) is subject to subsection (7).

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

(6)At subsequent reviews the judge advocate 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 judge advocate may, if the accused consents, authorise the keeping of the accused in service custody for a period of not more than 28 days.

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

Modifications etc. (not altering text)

Commencement Information

I215S. 108 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I216S. 108 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

109Custody during proceedings of Court Martial or Service Civilian CourtU.K.

(1)In relation to a review under section 108(1) which takes place between—

(a)the arraignment of the accused before the Court Martial or the Service Civilian Court, and

(b)the conclusion of proceedings before the court,

section 105(2) to (6) (as applied by section 108(4)) apply with the following modifications.

(2)The reference in section 105(2) to conditions A to C is to be read as a reference to conditions A to D.

(3)Where the accused is awaiting sentence—

(a)references in section 105(4)(a) and (5) to an offence with which the accused is charged are to be read as references to the offence for which he is awaiting sentence; and

(b)section 105(4)(d) does not apply.

Commencement Information

I217S. 109 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I218S. 109 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

Arrest after chargeU.K.

110Arrest after charge or during proceedings by order of commanding officerU.K.

(1)The commanding officer of a person who—

(a)has been charged with, or is awaiting sentence for, a service offence, and

(b)is not in service custody,

may, if satisfied that taking that person into service custody is justified, give orders for his arrest.

(2)For the purposes of this section, taking a person into service custody is justified if there are reasonable grounds for suspecting that, if not taken into service custody, he would—

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

(b)commit an offence; or

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

(3)Taking a person into service custody is also justified for the purposes of this section if—

(a)he has failed to attend any hearing in the proceedings against him;

(b)there are reasonable grounds for suspecting that he should be taken into service custody for his own protection or, if he is aged under 17, for his own welfare or in his own interests; or

(c)there are reasonable grounds for suspecting that—

(i)if not taken into service custody, he would fail to comply with a requirement imposed under section 107(3); or

(ii)he has failed to comply with such a requirement.

(4)A person arrested under subsection (1) who is kept in service custody—

(a)must as soon as is practicable be brought before a judge advocate for a review of whether he should continue to be kept in service custody; and

(b)on that review is to be dealt with as on a review under section 108(1) (see sections 108(4) to (8) and 109).

(5)Where a power of arrest is conferred on any person by virtue of this section, he may use reasonable force, if necessary, in the exercise of the power.

Commencement Information

I219S. 110 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I220S. 110 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

111Arrest during proceedings at direction of courtU.K.

(1)Where—

(a)a person has been arraigned before the Court Martial or the Service Civilian Court, and

(b)proceedings before the court have not concluded,

a judge advocate, if satisfied that taking him into service custody is justified, may direct the arrest of that person.

(2)Any person with power to arrest that person for a service offence has the same power, exercisable in the same way, to arrest him pursuant to a direction under subsection (1).

(3)Subsections (2) and (3) of section 110 apply for the purposes of this section.

(4)A person arrested under this section who is kept in service custody—

(a)must as soon as is practicable be brought before a judge advocate for a review of whether he should continue to be kept in service custody; and

(b)on that review is to be dealt with as on a review under section 108(1) (see sections 108(4) to (8) and 109).

Modifications etc. (not altering text)

Commencement Information

I221S. 111 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I222S. 111 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

Chapter 3U.K.Custody Proceedings Rules

112Custody proceedings rulesU.K.

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

(a)on an application under section 101;

(b)under section 105(1);

(c)on an application under section 107(4);

(d)on a review under section 108(1), 110(4), 111(4) or 171(2).

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

(a)with respect to arrangements preliminary to the proceedings;

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

(c)with respect to evidence, including the admissibility of evidence;

(d)for procuring the attendance of witnesses;

(e)with respect to the immunities and privileges of witnesses;

(f)with respect to oaths and affirmations;

(g)with respect to circumstances in which a review under section 108(1), 110(4), 111(4) or 171(2) may be carried out without a hearing;

(h)with respect to the use for the purposes of the proceedings of live television or telephone links or similar arrangements, including the use of such links or other arrangements as a means of satisfying any requirement imposed by this Act for a person to be brought before a judge advocate;

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

Commencement Information

I223S. 112 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I224S. 112 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

Part 5U.K.Investigation, Charging and Mode of Trial

Chapter 1U.K.Investigation

Duties of commanding officersU.K.

113CO to ensure service police aware of possibility serious offence committedU.K.

(1)If an officer becomes aware of an allegation or circumstances within subsection (2), he must as soon as is reasonably practicable ensure that a service police force is aware of the matter.

(2)An allegation is, or circumstances are, within this subsection if it or they would indicate to a reasonable person that a Schedule 2 offence has or may have been committed by a relevant person.

(3)In subsection (2) “relevant person” means a person whose commanding officer is the officer mentioned in subsection (1).

(4)In this Chapter “Schedule 2 offence” means a service offence listed in Schedule 2.

(5)The Secretary of State may by order amend Schedule 2.

Commencement Information

I225S. 113 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I226S. 113 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

114CO to ensure service police aware of certain circumstancesU.K.

(1)If an officer of a prescribed description becomes aware of circumstances of a prescribed description, he must as soon as is reasonably practicable ensure that a service police force is aware of the matter.

(2)In this section “prescribed” means prescribed by regulations under section 128.

Commencement Information

I227S. 114 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I228S. 114 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

115Duty of CO with respect to investigation of service offencesU.K.

(1)This section applies where—

(a)an officer becomes aware of an allegation or circumstances within subsection (2); and

(b)the officer is not required by section 113(1) or 114(1) to ensure that a service police force is aware of the matter.

(2)An allegation is, or circumstances are, within this subsection if it or they would indicate to a reasonable person that a service offence has or may have been committed by a relevant person.

(3)In subsection (2) “relevant person” means a person whose commanding officer is the officer mentioned in subsection (1).

(4)The officer must either—

(a)ensure that the matter is investigated in such way and to such extent as is appropriate; or

(b)ensure, as soon as is reasonably practicable, that a service police force is aware of the matter.

(5)Subsection (4) does not apply if the matter has already been investigated in such way and to such extent as is appropriate.

Commencement Information

I229S. 115 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I230S. 115 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

[F58Provost Marshal's duty in relation to independence of investigationsU.K.

Textual Amendments

F58S. 115A and cross-heading inserted (2.4.2012) by Armed Forces Act 2011 (c. 18), ss. 3, 32(3); S.I. 2012/669, art. 4(a)

115AProvost Marshal's duty in relation to independence of investigationsU.K.

(1)This section applies in relation to each service police force.

(2)The Provost Marshal of the force has a duty, owed to the Defence Council, to seek to ensure that all investigations carried out by the force are free from improper interference.

(3)Improper interference” includes, in particular, any attempt by a person who is not a service policeman to direct an investigation which is being carried out by the force.]

Duty of service policeman following investigationU.K.

116Referral of case following investigation by service or civilian policeU.K.

(1)This section applies where—

(a)a service police force has investigated an allegation which indicates, or circumstances which indicate, that a service offence has or may have been committed; or

(b)a UK police force or overseas police force has investigated such an allegation or such circumstances and has referred the matter to a service police force.

(2)If—

(a)a service policeman considers that there is sufficient evidence to charge a person with [F59a service offence that is not a CO offence], or

(b)a service policeman considers that there is sufficient evidence to charge a person with [F60a service offence that is a CO offence], and is aware of circumstances of a description prescribed by regulations under section 128 for the purposes of this paragraph,

he must refer the case to the Director of Service Prosecutions (“the Director”).

(3)If—

(a)a service policeman considers that there is sufficient evidence to charge a person with a service offence, F61...

(b)subsection (2) does not apply [F62, and

(c)section 117(5) (referral of connected cases to DSP) does not apply,]

he must refer the case to the person's commanding officer.

[F63(4)Subsection (4A) applies if—

(a)the allegation or circumstances would indicate to a reasonable person that [F64a person has committed, or might have committed, a service offence which is not one that may be dealt with at a summary hearing (see section 53)], or

(b)any circumstances investigated are circumstances of a description prescribed by regulations under section 128 for the purposes of section 114,

and a service policeman proposes not to refer the case to the Director under subsection (2) [F65or section 117(5)].

(4A)If this subsection applies, the service policeman must consult the Director as soon as is reasonably practicable (and before any referral of the case under subsection (3)).]

(5)[F66For the purposes of this section—

(a)]there is sufficient evidence to charge a person with an offence if, were the evidence suggesting that the person committed the offence to be adduced in proceedings for the offence, the person could properly be convicted [F67, and

(b)a service offence committed by a person is a “CO offence” if a charge against the person in respect of the offence is capable of being heard summarily by the person's commanding officer (see section 52).]

Textual Amendments

F59Words in s. 116(2)(a) substituted (22.5.2019 for specified purposes, 1.7.2019 in so far as not already in force) by Armed Forces Act 2016 (c. 21), ss. 3(1)(a), 19(1); S.I. 2019/961, reg. 2(1)(a)(b) (with reg. 3)

F60Words in s. 116(2)(b) substituted (22.5.2019 for specified purposes, 1.7.2019 in so far as not already in force) by Armed Forces Act 2016 (c. 21), ss. 3(1)(b), 19(1); S.I. 2019/961, reg. 2(1)(a)(b) (with reg. 3)

F61Word in s. 116(3)(a) omitted (22.5.2019 for specified purposes, 1.7.2019 in so far as not already in force) by virtue of Armed Forces Act 2016 (c. 21), ss. 3(2)(a), 19(1); S.I. 2019/961, reg. 2(1)(a)(b) (with reg. 3)

F62S. 116(3)(c) and word inserted (22.5.2019 for specified purposes, 1.7.2019 in so far as not already in force) by Armed Forces Act 2016 (c. 21), ss. 3(2)(b), 19(1); S.I. 2019/961, reg. 2(1)(a)(b) (with reg. 3)

F63S. 116(4)(4A) substituted for s. 116(4) (2.4.2012) by Armed Forces Act 2011 (c. 18), s. 32(3), Sch. 3 para. 5(1); S.I. 2012/669, art. 4(d)

F64Words in s. 116(4)(a) substituted (22.5.2019 for specified purposes, 1.7.2019 in so far as not already in force) by Armed Forces Act 2016 (c. 21), ss. 3(3)(a), 19(1); S.I. 2019/961, reg. 2(1)(a)(b) (with reg. 3)

F65Words in s. 116(4) inserted (22.5.2019 for specified purposes, 1.7.2019 in so far as not already in force) by Armed Forces Act 2016 (c. 21), ss. 3(3)(b), 19(1); S.I. 2019/961, reg. 2(1)(a)(b) (with reg. 3)

F66Words in s. 116(5) substituted (22.5.2019 for specified purposes, 1.7.2019 in so far as not already in force) by Armed Forces Act 2016 (c. 21), ss. 3(4)(a), 19(1); S.I. 2019/961, reg. 2(1)(a)(b) (with reg. 3)

F67S. 116(5)(b) and word inserted (22.5.2019 for specified purposes, 1.7.2019 in so far as not already in force) by Armed Forces Act 2016 (c. 21), ss. 3(4)(b), 19(1); S.I. 2019/961, reg. 2(1)(a)(b) (with reg. 3)

Modifications etc. (not altering text)

Commencement Information

I231S. 116 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I232S. 116 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

117Section 116: position where investigation is of multiple offences or offendersU.K.

(1)This section applies where the investigation mentioned in section 116(1) relates to two or more incidents (or alleged incidents) or the conduct (or alleged conduct) of two or more persons.

(2)Each person's conduct in relation to each incident is to be regarded as giving rise to a separate case.

[F68(3)Subsections (4) and (5) apply if—

(a)at least one of the cases has been, or must be, referred to the Director of Service Prosecutions (“the Director”) under section 116(2),

(b)a service policeman considers that there is sufficient evidence to charge a person with a service offence in another of the cases,

(c)that case is not required to be referred to the Director under section 116(2), and

(d)the service policeman considers that there is, or may be, a connection between a case falling within paragraph (a) and the case falling within paragraph (c), whether direct or indirect, that makes it appropriate for both cases to be referred to the Director.

(4)The service policeman must consult the Director about the existence and nature of the connection between those cases.

(5)Following that consultation, if the service policeman considers that there is a connection described in subsection (3)(d), the service policeman must refer the case falling within subsection (3)(c) to the Director.

(6)The reference in this section to there being sufficient evidence to charge a person with a service offence is to be read in accordance with section 116(5)(a).]

Textual Amendments

F68S. 117(3)-(6) substituted for s. 117(3) (22.5.2019 for specified purposes, 1.7.2019 in so far as not already in force) by Armed Forces Act 2016 (c. 21), ss. 3(5), 19(1); S.I. 2019/961, reg. 2(1)(a)(b) (with reg. 3)

Commencement Information

I233S. 117 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I234S. 117 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

118Duty of service policeman to notify CO of referral to DSPU.K.

(1)This section applies where a service policeman considers that there is sufficient evidence to charge a person (“A”) with a service offence and refers the case under section 116(2) [F69or 117(5)] to the Director of Service Prosecutions.

(2)The service policeman must as soon as reasonably practicable after referring the case—

(a)notify A's commanding officer of the referral; and

(b)provide prescribed documents to A's commanding officer.

[F70(3)A notification under subsection (2)(a) must specify the service offence that the service policeman considers there is sufficient evidence to charge A with.

(3A)Where that offence is a CO offence, the notification must—

(a)specify whether the case is referred under section 116(2) or 117(5), and

(b)if the case is referred under section 116(2), specify the circumstances that bring the case within section 116(2)(b).]

(4)In this section—

(a)any reference to there being sufficient evidence to charge a person with a service offence is to be read in accordance with [F71section 116(5)(a)];

[F72(aa)any reference to a CO offence is to be read in accordance with section 116(5)(b);]

(b)prescribed documents” means documents prescribed for the purposes of subsection (2)(b) by regulations under section 128.

F73(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F69Words in s. 118(1) inserted (22.5.2019 for specified purposes, 1.7.2019 in so far as not already in force) by Armed Forces Act 2016 (c. 21), ss. 3(6)(a), 19(1); S.I. 2019/961, reg. 2(1)(a)(b) (with reg. 3)

F70S. 118(3)(3A) substituted for s. 118(3) (22.5.2019 for specified purposes, 1.7.2019 in so far as not already in force) by Armed Forces Act 2016 (c. 21), ss. 3(6)(b), 19(1); S.I. 2019/961, reg. 2(1)(a)(b) (with reg. 3)

F71Words in s. 118(4)(a) substituted (22.5.2019 for specified purposes, 1.7.2019 in so far as not already in force) by Armed Forces Act 2016 (c. 21), ss. 3(6)(c), 19(1); S.I. 2019/961, reg. 2(1)(a)(b) (with reg. 3)

F72S. 118(4)(aa) inserted (22.5.2019 for specified purposes, 1.7.2019 in so far as not already in force) by Armed Forces Act 2016 (c. 21), ss. 3(6)(d), 19(1); S.I. 2019/961, reg. 2(1)(a)(b) (with reg. 3)

F73S. 118(5) omitted (22.5.2019 for specified purposes, 1.7.2019 in so far as not already in force) by virtue of Armed Forces Act 2016 (c. 21), ss. 3(6)(e), 19(1); S.I. 2019/961, reg. 2(1)(a)(b) (with reg. 3)

Commencement Information

I235S. 118 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I236S. 118 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

Chapter 2U.K.Charging and Mode of Trial

Powers of charging etcU.K.

119Circumstances in which CO has power to charge etcU.K.

(1)This section sets out the circumstances in which a commanding officer has initial powers (defined by section 120) in respect of a case.

(2)If a commanding officer of a person becomes aware of an allegation which indicates, or circumstances which indicate, that the person has or may have committed a service offence, he has initial powers in respect of the case.

(3)Subsection (2) does not apply if the allegation or circumstances—

(a)give or have given rise to the duty under section 113(1) or 114(1);

(b)are being or have been investigated by a service police force; or

(c)are being or have been investigated by a UK police force or overseas police force, and it appears to the commanding officer that that force may refer the matter to the service police.

(4)A commanding officer has initial powers in respect of a case which a service policeman has referred to him under section 116(3) (referral of case following investigation by service or civilian police).

(5)A commanding officer has initial powers in respect of a case which the Director of Service Prosecutions has referred to him under section 121(4) (referral of case by DSP).

(6)If an allegation or circumstances mentioned in subsection (2) relate to two or more incidents (or alleged incidents) or the conduct (or alleged conduct) of two or more persons, each person's conduct in relation to each incident is to be regarded as giving rise to a separate case.

Modifications etc. (not altering text)

Commencement Information

I237S. 119 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I238S. 119 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

120Power of CO to charge etcU.K.

(1)Subsections (2) and (3) apply where under section 119 a commanding officer has initial powers in respect of a case.

(2)The officer may bring, in respect of the case, one or more charges that are capable of being heard summarily (see section 52).

(3)The officer may refer the case to the Director of Service Prosecutions.

(4)A charge brought under subsection (2) is to be regarded for the purposes of this Part as allocated for summary hearing.

(5)[F74Where an officer has referred a case under subsection (3), the officer must also refer to the Director of Service Prosecutions any other case—]

(a)which is of a description prescribed by regulations under section 128 for the purposes of this subsection, and

(b)as respects which the officer has initial powers,

F75....

Textual Amendments

F74Words in s. 120(5) substituted (22.5.2019 for specified purposes, 1.7.2019 in so far as not already in force) by Armed Forces Act 2016 (c. 21), ss. 4(1)(a), 19(1); S.I. 2019/961, reg. 2(1)(a)(b) (with reg. 3)

F75Words in s. 120(5) omitted (22.5.2019 for specified purposes, 1.7.2019 in so far as not already in force) by virtue of Armed Forces Act 2016 (c. 21), ss. 4(1)(b), 19(1); S.I. 2019/961, reg. 2(1)(a)(b) (with reg. 3)

Commencement Information

I239S. 120 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I240S. 120 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

121Power of DSP to [F76charge or] direct bringing of charge etcU.K.

(1)The powers in [F77subsections (1A) to (5)] are exercisable by the Director of Service Prosecutions (“the Director”) in respect of a case which has been referred to him under—

(a)section 116(2) (referral of case following investigation by service or civilian police);

[F78(aa)section 117(5) (referral of connected cases);] or

(b)section 120(3) [F79or (5)] (referral of case by CO).

[F80(1A)The Director may bring a charge or charges against the person concerned in respect of the case.

(1B)If—

(a)the Director brings a charge under subsection (1A), and

(b)the Service Civilian Court has jurisdiction to try the charge,

the Director may allocate the charge for trial by that court.]

(2)The Director may direct the commanding officer of the person concerned to bring, in respect of the case, such charge or charges against him as may be specified in the direction.

(3)If—

(a)the Director makes a direction under subsection (2), and

(b)the Service Civilian Court has jurisdiction to try the charge specified in the direction,

the Director may allocate the charge for trial by that court.

(4)The Director may refer the case to the commanding officer of the person concerned, but only if he has decided that it would not be appropriate [F81to bring a charge under subsection (1A) or] to make a direction under subsection (2) in respect of it.

(5)The Director may make a direction under section 127(1) or (2) (directions barring further proceedings) in respect of any offence as regards which he could [F82bring a charge under subsection (1A) or] make a direction under subsection (2).

Textual Amendments

F76Words in s. 121 heading inserted (22.5.2019 for specified purposes, 1.7.2019 in so far as not already in force) by Armed Forces Act 2016 (c. 21), ss. 5(1)(e), 19(1); S.I. 2019/961, reg. 2(1)(a)(b) (with reg. 3)

F77Words in s. 121(1) substituted (22.5.2019 for specified purposes, 1.7.2019 in so far as not already in force) by Armed Forces Act 2016 (c. 21), ss. 5(1)(a), 19(1); S.I. 2019/961, reg. 2(1)(a)(b) (with reg. 3)

F78S. 121(1)(aa) inserted (22.5.2019 for specified purposes, 1.7.2019 in so far as not already in force) by Armed Forces Act 2016 (c. 21), ss. 3(7), 19(1); S.I. 2019/961, reg. 2(1)(a)(b) (with reg. 3)

F79Words in s. 121(1)(b) inserted (22.5.2019 for specified purposes, 1.7.2019 in so far as not already in force) by Armed Forces Act 2016 (c. 21), ss. 4(2), 19(1); S.I. 2019/961, reg. 2(1)(a)(b) (with reg. 3)

F80S. 121(1A)(1B) inserted (22.5.2019 for specified purposes, 1.7.2019 in so far as not already in force) by Armed Forces Act 2016 (c. 21), ss. 5(1)(b), 19(1); S.I. 2019/961, reg. 2(1)(a)(b) (with reg. 3)

F81Words in s. 121(4) inserted (22.5.2019 for specified purposes, 1.7.2019 in so far as not already in force) by Armed Forces Act 2016 (c. 21), ss. 5(1)(c), 19(1); S.I. 2019/961, reg. 2(1)(a)(b) (with reg. 3)

F82Words in s. 121(5) inserted (22.5.2019 for specified purposes, 1.7.2019 in so far as not already in force) by Armed Forces Act 2016 (c. 21), ss. 5(1)(d), 19(1); S.I. 2019/961, reg. 2(1)(a)(b) (with reg. 3)

Commencement Information

I241S. 121 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I242S. 121 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

122Charges brought [F83by or] at direction of DSPU.K.

(1)Where a direction under section 121(2) is given to an officer, he must bring the charge or charges specified in the direction.

(2)A charge [F84brought by the Director of Service Prosecutions (“the Director”) under section 121(1A) or by an officer as a result of a direction under section 121(2)]

(a)is to be regarded for the purposes of this Part as allocated for Service Civilian Court trial if [F85the Director allocated it (under section 121(1B) or (3))] for trial by that court;

(b)otherwise, is to be regarded for the purposes of this Part as allocated for Court Martial trial.

Textual Amendments

F83Words in s. 122 heading inserted (22.5.2019 for specified purposes, 1.7.2019 in so far as not already in force) by Armed Forces Act 2016 (c. 21), ss. 5(2)(c), 19(1); S.I. 2019/961, reg. 2(1)(a)(b) (with reg. 3)

F84Words in s. 122(2) substituted (22.5.2019 for specified purposes, 1.7.2019 in so far as not already in force) by Armed Forces Act 2016 (c. 21), ss. 5(2)(a), 19(1); S.I. 2019/961, reg. 2(1)(a)(b) (with reg. 3)

F85Words in s. 122(2)(a) substituted (22.5.2019 for specified purposes, 1.7.2019 in so far as not already in force) by Armed Forces Act 2016 (c. 21), ss. 5(2)(b), 19(1); S.I. 2019/961, reg. 2(1)(a)(b) (with reg. 3)

Commencement Information

I243S. 122 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I244S. 122 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

Powers of commanding officer or DSP after charge etcU.K.

123Powers of CO after chargeU.K.

(1)This section applies where a charge against a person (“the accused”) is for the time being regarded for the purposes of this Part as allocated for summary hearing.

(2)The accused's commanding officer may—

(a)amend the charge;

(b)substitute for the charge another charge against the accused;

(c)bring an additional charge against the accused;

(d)discontinue proceedings on the charge;

(e)refer the charge to the Director of Service Prosecutions.

(3)The powers under subsection (2) may be exercised before or after the start of any summary hearing of the charge.

(4)Any amended, substituted or additional charge under subsection (2)(a) to (c) must be capable of being heard summarily (see section 52).

(5)Any additional charge brought under subsection (2)(c) must be in respect of the case as respects which the charge mentioned in subsection (1) was brought.

(6)Any amended, substituted or additional charge under subsection (2)(a) to (c) is to be regarded for the purposes of this Part as allocated for summary hearing.

(7)Where a charge is referred under subsection (2)(e) to the Director of Service Prosecutions, the charge and any other charge brought in respect of the same case are to be regarded for the purposes of this Part as allocated for Court Martial trial.

Commencement Information

I245S. 123 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I246S. 123 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

124CO to hear charge allocated for summary hearingU.K.

(1)This section applies in respect of a charge which is regarded for the purposes of this Part as allocated for summary hearing.

(2)The accused's commanding officer must hear the charge summarily unless—

(a)he exercises his powers under section 123(2)(b), (d) or (e) in respect of the charge (substitution of charge, discontinuance of proceedings, or referral to DSP); or

(b)the accused elects Court Martial trial of the charge (see section 129).

(3)Subsection (2) is subject to sections 52 (charges capable of being heard summarily) and 54 (charges which may be heard summarily only with permission or by senior officer).

Commencement Information

I247S. 124 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I248S. 124 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

125Powers of DSP in respect of charge allocated for Court Martial trialU.K.

(1)This section applies where a charge against a person (“the accused”) is for the time being regarded for the purposes of this Part as allocated for Court Martial trial.

(2)The Director of Service Prosecutions may—

(a)amend the charge;

(b)substitute for the charge another charge against the accused;

(c)bring an additional charge against the accused;

(d)discontinue proceedings on the charge;

(e)refer the charge to the accused's commanding officer, but only if the charge is capable of being heard summarily (see section 52);

(f)allocate the charge for trial by the Service Civilian Court, but only if the charge is one that that court has jurisdiction to try;

(g)make a direction under section 127(1) or (2) (directions barring further proceedings) in respect of the offence charged or any offence that could be charged under paragraph (c) above.

(3)Court Martial rules may restrict the exercise of powers under subsection (2)—

(a)after arraignment by the Court Martial; [F86or]

(b)after referral of the charge to the Court Martial under section 279(4) or 280(3) (referral by SCC); F87...

F87(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F88(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5)Any additional charge brought under subsection (2)(c) must be in respect of the case as respects which the charge mentioned in subsection (1) was brought.

(6)Any amended, substituted or additional charge under subsection (2)(a) to (c) is to be regarded for the purposes of this Part as allocated for Court Martial trial.

(7)Any charge referred under subsection (2)(e) to a commanding officer is to be regarded for the purposes of this Part as allocated for summary hearing.

(8)Any charge allocated under subsection (2)(f) is to be regarded for the purposes of this Part as allocated for Service Civilian Court trial.

Textual Amendments

F87S. 125(3)(c) and preceding word repealed (2.4.2012) by Armed Forces Act 2011 (c. 18), s. 32(3), Sch. 3 para. 6(2)(b), Sch. 5; S.I. 2012/669, art. 4(d)(f)(i)

Commencement Information

I249S. 125 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I250S. 125 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

126Powers of DSP in respect of charge allocated for SCC trialU.K.

(1)This section applies where a charge against a person (“the accused”) is for the time being regarded for the purposes of this Part as allocated for Service Civilian Court trial.

(2)The Director of Service Prosecutions may—

(a)amend the charge;

(b)substitute for the charge another charge against the accused;

(c)bring an additional charge against the accused;

(d)discontinue proceedings on the charge;

(e)allocate the charge for trial by the Court Martial;

(f)make a direction under section 127(1) or (2) (directions barring further proceedings) in respect of the offence charged or any offence that could be charged under paragraph (c) above.

(3)SCC rules may restrict the exercise, after a decision by the Service Civilian Court under section 279 as to whether it should try the charge, of powers under subsection (2).

(4)Any amended, substituted or additional charge under subsection (2)(a) to (c) must be one that the Service Civilian Court has jurisdiction to try.

(5)Any additional charge brought under subsection (2)(c) must be in respect of the case as respects which the charge mentioned in subsection (1) was brought.

(6)Any amended, substituted or additional charge under subsection (2)(a) to (c) is to be regarded for the purposes of this Part as allocated for Service Civilian Court trial.

(7)Any charge allocated under subsection (2)(e) is to be regarded for the purposes of this Part as allocated for Court Martial trial.

Commencement Information

I251S. 126 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I252S. 126 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

Chapter 3U.K.Supplementary

127Directions by DSP barring further proceedingsU.K.

(1)A direction under this subsection is a direction that for the purposes of section 63 the person specified in the direction is to be treated as acquitted of the service offence so specified.

(2)A direction under this subsection is a direction that for the purposes of sections 63 and 64 the person specified in the direction is to be treated as acquitted of the service offence so specified.

Commencement Information

I253S. 127 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I254S. 127 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

128Regulations for purposes of Part 5U.K.

(1)The Secretary of State may by regulations make such provision as he considers necessary or expedient for the purposes of any provision of this Part.

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

(a)for the delegation by a commanding officer of any of his functions;

(b)as to the bringing, amendment and substitution of charges;

(c)as to the referral of cases and charges, including provision requiring a commanding officer in prescribed circumstances to refer a case or charge to the Director of Service Prosecutions;

(d)as to the examination of witnesses for the purpose of obtaining information of assistance to the Director of Service Prosecutions in connection with his functions under Chapter 2;

(e)requiring prescribed persons to be notified of prescribed matters.

(3)In subsection (2) “prescribed” means prescribed by regulations under this section.

Commencement Information

I255S. 128 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I256S. 128 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

Part 6U.K.Summary Hearing and Appeals and Review

Chapter 1U.K.Summary Hearing

Right to elect Court Martial trialU.K.

129Right to elect Court Martial trialU.K.

(1)Before hearing a charge summarily the commanding officer must, in the way specified by rules under section 153, give the accused the opportunity of electing Court Martial trial of the charge.

(2)If the accused elects Court Martial trial of the charge—

(a)the commanding officer must refer the charge to the Director of Service Prosecutions; and

(b)the charge is to be regarded for the purposes of Part 5 as allocated for Court Martial trial.

(3)Where two or more charges against the accused are to be heard summarily together, an election for Court Martial trial in respect of any of the charges takes effect as an election in respect of all of them.

[F89(4)Subsection (5) applies if an opportunity to elect Court Martial trial of a charge (“the original charge”) has been given under subsection (1) and subsequently—

(a)the charge is amended;

(b)another charge is substituted for it; or

(c)an additional charge is brought.

(5)Subsection (1) applies in relation to the amended, substituted or additional charge; and if the amendment, substitution or addition takes place after the start of the summary hearing, that subsection has effect in relation to the charge as if the reference to hearing a charge summarily were to proceeding with the hearing.

(6)In subsection (4)—

(a)amended” means amended under section 123(2)(a) or, in the case of a charge referred to the Director of Service Prosecutions otherwise than on election for Court Martial trial, amended under section 125(2)(a) and referred to the commanding officer under section 125(2)(e);

(b)substituted” means substituted under section 123(2)(b) or, where the original charge was referred to the Director of Service Prosecutions otherwise than on election for Court Martial trial, substituted under section 125(2)(b) and referred to the commanding officer under section 125(2)(e);

(c)brought”, in relation to an additional charge, means brought under section 123(2)(c) or, where the original charge was referred to the Director of Service Prosecutions otherwise than on election for Court Martial trial, brought under section 125(2)(c) and referred to the commanding officer under section 125(2)(e).

(7)Subsection (8) applies where—

(a)an opportunity to elect Court Martial trial of a charge has been given under this section;

(b)the accused has not elected Court Martial trial; and

(c)at a time after the giving of the opportunity to elect, the commanding officer obtains extended powers for the purposes of any provision of section 133, 134, 135 or 194.

(8)The provisions of this section requiring the giving of an opportunity to elect Court Martial trial of the charge shall apply again.]

Textual Amendments

F89S. 129(4)-(8) substituted for s. 129(4) (2.4.2012) by Armed Forces Act 2011 (c. 18), s. 32(3), Sch. 3 para. 7; S.I. 2012/669, art. 4(d)

Commencement Information

I257S. 129 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I258S. 129 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

130Further consequences of election for Court Martial trialU.K.

(1)This section applies where the accused has elected Court Martial trial of a charge.

(2)The Director of Service Prosecutions (“the Director”) may not without the written consent of the accused refer to a commanding officer, under section 125(2)(e)—

(a)that charge (whether or not amended by the Director), or

(b)any charge substituted under section 125(2)(b) or additionally brought under section 125(2)(c).

(3)Where a charge mentioned in subsection (2) is referred under section 125(2)(e), the accused may not elect Court Martial trial of the charge (and accordingly section 129(1) does not apply in respect of the charge); but this does not apply [F90

(a)where the charge is amended after referral;

(b)to any charge substituted for or added to the charge after referral; or

(c)where extended powers for the purposes of any provision of section 133, 134, 135 or 194 are obtained after referral.]

Textual Amendments

F90S. 130(3)(a)-(c) substituted for words (2.4.2012) by Armed Forces Act 2011 (c. 18), s. 32(3), Sch. 3 para. 8; S.I. 2012/669, art. 4(d)

Commencement Information

I259S. 130 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I260S. 130 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

[F91130ARestrictions on DSP's powers to substitute or add charges after electionU.K.

(1)This section applies where—

(a)a charge is for the time being regarded for the purposes of Part 5 as allocated for Court Martial trial; and

(b)the charge is in respect of an offence which would be a relevant offence for the purposes of Schedule 3A (sentencing powers of Court Martial where election for trial by that court) if the accused were convicted of it.

(2)The Director of Service Prosecutions (“the Director”) may not without the written consent of the accused substitute under section 125(2)(b)—

(a)a charge in respect of an offence which is not one that may be dealt with at a summary hearing (see section 53); or

(b)a charge in respect of an offence within section 54(2) (offences that may be dealt with summarily only with permission or by senior officer), except where the relevant charge was in respect of such an offence.

(3)In subsection (2)(b) “relevant charge” means—

(a)in relation to a case A offence or a case B offence (within the meaning of Schedule 3A), the charge in respect of which the accused elected Court Martial trial; and

(b)in relation to a case C offence or a case D offence (within the meaning of Schedule 3A), the charge referred as mentioned in paragraph 4(c) of that Schedule.

(4)The Director may not without the written consent of the accused bring under section 125(2)(c) a charge in addition to the charge.

(5)In construing Part 1 of Schedule 3A (relevant offences) for the purposes of this section, paragraphs 3(b) and 5(c) of that Schedule are to be disregarded.]

Textual Amendments

Summary hearingU.K.

131Summary hearingU.K.

(1)This section applies where a commanding officer hears a charge summarily.

(2)The commanding officer may dismiss the charge at any stage of the hearing; but this is subject to subsection (4) and to any provision of rules under section 153.

(3)If the commanding officer determines that the charge has not been proved, he must dismiss the charge.

(4)If the commanding officer determines that the charge has been proved, he must—

(a)record a finding that the charge has been proved; and

(b)award one or more of the punishments authorised by section 132.

(5)Where the commanding officer records findings that two or more charges against a person have been proved, the award he must make under subsection (4) is a single award (consisting of one or more of those punishments) in respect of the charges taken together.

(6)Nothing in this section authorises a commanding officer to include in an award two or more punishments within the same row of the Table in section 132, except where those punishments are—

(a)different minor punishments which regulations made under row 7 of the Table permit to be awarded together; or

(b)service compensation orders.

Commencement Information

I261S. 131 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I262S. 131 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

Punishments available to commanding officerU.K.

132Punishments available to commanding officerU.K.

(1)The second column of the following Table lists the punishments that may be awarded by a commanding officer who has heard a charge summarily, subject in the case of each punishment to any limitation shown in the third column opposite it.

TABLE
Row NumberPunishmentLimitation
1detention for a term not exceeding the maximum allowed by section 133

only if the person being punished is of or below the rank of—

(a)

leading rate;

(b)

lance corporal or lance bombardier;

(c)

corporal in any of Her Majesty's air forces [F92(but see subsection (1A))]

2forfeiture of a specified term of seniority or of all seniorityonly if the person being punished is an officer, and only in accordance with section 134
3reduction in rank, or disratingonly if the person being punished is a warrant officer or non-commissioned officer, only in accordance with section 135, and not to an extent prohibited by regulations under section 135(4)
4a fine not exceeding the maximum amount allowed by section 136 
5a severe reprimand or a reprimandonly if the person being punished is an officer, warrant officer or non-commissioned officer
6a service supervision and punishment order (defined by section 173)only if the person being punished is an able rate, marine, soldier or airman
7such minor punishments as may from time to time be authorised by regulations made by the Defence Council 
8a service compensation order (defined by section 175) of an amount not exceeding the maximum allowed by section 137 

[F93(1A)In this section and section 133 references to a corporal in any of Her Majesty's air forces do not include a corporal in the Royal Air Force Regiment.]

(2)Subsection (1) is subject to (in particular)—

(a)section 138 (prohibited combinations of punishments) and any regulations made under that section;

(b)Chapter 1 of Part 9 (general provisions about sentencing).

(3)Where regulations under row 7 of the Table authorise a minor punishment, they may—

(a)confer on the offender's commanding officer a power, when awarding the punishment, to direct that the punishment shall take effect from a date after the date of the award;

(b)confer on the offender's commanding officer the function of deciding the details of the punishment;

(c)provide for the delegation by the commanding officer of any of his functions under the regulations.

Textual Amendments

F92Words in s. 132(1) table inserted (2.4.2012) by Armed Forces Act 2011 (c. 18), ss. 12(1)(a), 32(3); S.I. 2012/669, art. 4(a)

Commencement Information

I263S. 132 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I264S. 132 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

133Detention: limits on powersU.K.

(1)The maximum term of detention that a commanding officer may award under row 1 of the Table in section 132 to an able rate, marine, soldier or airman is—

(a)90 days if the commanding officer has extended powers for the purposes of this subsection;

(b)otherwise, 28 days.

(2)A commanding officer may not award detention under row 1 of the Table in section 132 to a person of any of the following ranks—

(a)leading rate,

(b)lance corporal or lance bombardier,

(c)corporal in any of Her Majesty's air forces,

unless the commanding officer has extended powers for the purposes of this subsection; and the maximum term of detention that a commanding officer may (if he has those powers) award such a person is 90 days.

(3)A commanding officer has extended powers for the purposes of subsection (1) or (2) if he has, [F94within the relevant time (defined by section 135A)]

(a)applied to higher authority for extended powers for the purposes of that subsection; and

(b)been notified by higher authority that his application has been granted.

(4)A commanding officer also has extended powers for the purposes of subsection (1) or (2) if he is of or above the rank of rear admiral, major-general or air vice-marshal.

Textual Amendments

F94Words in s. 133(3) substituted (2.4.2012) by Armed Forces Act 2011 (c. 18), s. 32(3), Sch. 3 para. 10; S.I. 2012/669, art. 4(d)

Commencement Information

I265S. 133 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I266S. 133 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

134Forfeiture of seniority: requirement for approvalU.K.

(1)A commanding officer may not award forfeiture of seniority under row 2 of the Table in section 132 unless he has extended powers for the purposes of this section.

(2)A commanding officer has extended powers for the purposes of this section if he has, [F95within the relevant time (defined by section 135A)]

(a)applied to higher authority for extended powers for the purposes of this section; and

(b)been notified by higher authority that his application has been granted.

(3)A commanding officer also has extended powers for the purposes of this section if he is of or above the rank of rear admiral, major-general or air vice-marshal.

Textual Amendments

F95Words in s. 134(2) substituted (2.4.2012) by Armed Forces Act 2011 (c. 18), s. 32(3), Sch. 3 para. 10; S.I. 2012/669, art. 4(d)

Commencement Information

I267S. 134 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I268S. 134 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

135Reduction in rank: limits on powersU.K.

(1)A commanding officer may not award reduction in rank, or disrating, under row 3 of the Table in section 132 unless—

(a)he has extended powers for the purposes of this subsection; or

(b)the person being punished is a lance corporal or lance bombardier.

(2)The reduction in rank or disrating that a commanding officer may award is reduction or disrating—

(a)by one acting rank or rate; or

(b)if the person being punished has no acting rank or rate, by one substantive rank or rate.

[F96(3)Where the person being punished is a corporal in any of Her Majesty's air forces, the reduction in rank authorised by subsection (2)(a) or (b) (as the case may be) is reduction to the highest rank the person has held in that force as an airman; but this is subject to subsection (3A).

(3A)In relation to the Royal Air Force Regiment, the reference in subsection (3) to a corporal is to be read as a reference to a lance corporal.]

(4)The Defence Council may by regulations provide that persons of a trade or branch specified in the regulations may not be reduced or disrated under section 132 below a rank or rate so specified.

(5)A commanding officer has extended powers for the purposes of subsection (1) if he has, [F97within the relevant time (defined by section 135A)]

(a)applied to higher authority for extended powers for the purposes of that subsection; and

(b)been notified by higher authority that his application has been granted.

(6)A commanding officer also has extended powers for the purposes of subsection (1) if he is of or above the rank of rear admiral, major-general or air vice-marshal.

Textual Amendments

F96S. 135(3)(3A) substituted for s. 135(3) (2.4.2012) by Armed Forces Act 2011 (c. 18), ss. 12(2), 32(3); S.I. 2012/669, art. 4(a)

F97Words in s. 135(5) substituted (2.4.2012) by Armed Forces Act 2011 (c. 18), s. 32(3), Sch. 3 para. 10; S.I. 2012/669, art. 4(d)

Commencement Information

I269S. 135 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I270S. 135 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

[F98135AExtended powers: time for obtainingU.K.

(1)In each of sections 133(3), 134(2) and 135(5), “within the relevant time” means before the start of the summary hearing; but this is subject to subsections (2) and (3).

(2)Subsection (3) applies where after the start of a summary hearing—

(a)a charge is amended under section 123(2)(a);

(b)a charge is substituted for another charge under section 123(2)(b); or

(c)an additional charge is brought under section 123(2)(c).

(3)Any application for or grant of extended powers which is made in the period between—

(a)the making of the amendment, substitution or addition, and

(b)the time when the summary hearing is proceeded with after the amendment, substitution or addition,

is to be treated for the purposes of sections 133(3), 134(2) and 135(5) as made within the relevant time.]

Textual Amendments

136Fine: maximum amountU.K.

[F99(1)The maximum amount of a fine that a commanding officer may award is 28 days' pay.]

(4)For the purposes of this section a day's pay is—

(a)subject to paragraph (b), the gross pay which is (or would apart from any forfeiture be) issuable to the offender in respect of the day when 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 or rate.

(5)If the offender is a member of a reserve force who is not on duty on the day the punishment is awarded, for the purposes of subsection (4) he is to be taken to have been on duty then.

(6)In subsection (4) “special member” and “ordinary member” have the same meanings as in the Reserve Forces Act 1996 (c. 14).

Textual Amendments

F99S. 136(1) substituted for s. 136(1)-(3) (2.4.2012) by Armed Forces Act 2011 (c. 18), s. 32(3), Sch. 3 para. 12; S.I. 2012/669, art. 4(d) (with art. 7)

Commencement Information

I271S. 136 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I272S. 136 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

137Service compensation orders: maximum amountU.K.

(1)Where an award by a commanding officer consists of or includes one service compensation order, the compensation to be paid under the order must not exceed £1,000.

(2)Where an award by a commanding officer consists of or includes two or more service compensation orders, the total compensation to be paid under the orders must not exceed £1,000.

(3)If it appears to the Secretary of State that there has been a change in the value of money since the relevant date, he may by order substitute for the sum for the time being specified in subsections (1) and (2) such other sum as appears to him justified by the change.

(4)In subsection (3) “the relevant date” means—

(a)the date of the coming into force of this section; or

(b)where the sum for the time being specified in subsections (1) and (2) was substituted for a sum previously so specified, the date of the substitution.

Commencement Information

I273S. 137 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I274S. 137 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

138Prohibited combinations of punishmentsU.K.

(1)Subsections (2) to (6) apply where a commanding officer awards punishment in respect of an offender.

[F100(2)If he awards detention, the only additional punishments he may award are—

(a)reduction in rank or disrating (subject to subsection (8));

(b)a service compensation order.]

(4)If he awards forfeiture of seniority, the only additional punishments he may award are—

(a)a severe reprimand or a reprimand;

(b)a service compensation order.

(5)If he awards reduction in rank or disrating, the only additional punishments he may award are—

(a)a suspended sentence of service detention (subject to subsection (8));

(b)a service compensation order.

(6)If he awards a fine, he may not also award a service supervision and punishment order.

(7)Regulations under row 7 of the Table in section 132 may make provision, as respects any punishment authorised by those regulations, prohibiting that punishment from being awarded with any other punishment (whether or not so authorised) specified by the regulations.

(8)Nothing in this section authorises a commanding officer to award a particular punishment where the award of that punishment is prohibited otherwise than by this section.

(9)References in this section to a service compensation order include references to two or more such orders.

Textual Amendments

F100S. 138(2) substituted for s. 138(2)(3) (2.4.2012) by Armed Forces Act 2011 (c. 18), ss. 13(1), 32(3); S.I. 2012/669, art. 4(a) (with art. 6(1)(2))

Commencement Information

I275S. 138 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I276S. 138 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

139Savings for maximum penalties for offencesU.K.

(1)Where a commanding officer awards punishment in respect of a single offence, nothing in sections 131 to 138 authorises him—

(a)to award a punishment of a kind which the Court Martial could not award for that offence;

(b)if the offence is under section 42 (criminal conduct), to award a fine exceeding the maximum allowed by section 42(4).

(2)Where a commanding officer awards punishment in respect of two or more offences—

(a)nothing in sections 131 to 138 authorises him to award a punishment of a particular kind unless it is one which the Court Martial could award for at least one of the offences; and

(b)if all the offences are under section 42 and the maximum fine allowed by section 136 exceeds the permitted maximum, nothing in sections 131 to 138 authorises him to award a fine exceeding the permitted maximum.

(3)The permitted maximum is the total of the fines that under section 42(4) the commanding officer could award in respect of the offences if he had power to make separate awards in respect of them.

Commencement Information

I277S. 139 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I278S. 139 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

Chapter 2U.K.The Summary Appeal Court

140The Summary Appeal CourtU.K.

(1)There shall be a court, to be known as the Summary Appeal Court.

(2)The Summary Appeal Court may sit in any place, whether within or outside the United Kingdom.

Commencement Information

I279S. 140 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I280S. 140 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

141Right of appealU.K.

(1)A person in respect of whom—

(a)a charge has been heard summarily, and

(b)a finding that the charge has been proved has been recorded,

may appeal to the Summary Appeal Court against the finding or against the punishment awarded.

(2)Subject to subsection (3), any appeal under this section must be brought—

(a)within the period of 14 days beginning with the date on which the punishment was awarded (“the initial period”); or

(b)within such longer period as the court may allow by leave given before the end of the initial period.

(3)The court may at any later time give leave for an appeal to be brought within such period as it may allow.

(4)The respondent to an appeal under this section is the Director of Service Prosecutions.

Commencement Information

I281S. 141 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I282S. 141 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

142Constitution of the SAC for appealsU.K.

(1)For the purpose of hearing an appeal under section 141, the Summary Appeal Court is to consist of—

(a)a judge advocate;

(b)an officer qualified for membership under section 143 and not ineligible by virtue of section 144; and

(c)a third person who is an officer or warrant officer so qualified and not so ineligible.

(2)Subsection (1) is subject to any provision made by SAC rules.

(3)The judge advocate for an appeal under section 141 is to be specified by or on behalf of the Judge Advocate General.

(4)The other members of the court for an appeal under section 141 are to be specified by or on behalf of the court administration officer.

Commencement Information

I283S. 142 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I284S. 142 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

143Officers and warrant officers qualified for membership of the SACU.K.

(1)Subject to subsections (2) to (4), an officer or warrant officer is qualified for membership of the Summary Appeal Court if he is subject to service law.

(2)An officer is not qualified for membership of the court unless—

(a)he has held a commission in any of Her Majesty's forces for at least three years, or for periods amounting in the aggregate to at least three years; or

(b)immediately before receiving his commission, he was a warrant officer in any of those forces.

(3)A warrant officer is not qualified for membership of the court if he is an acting warrant officer.

(4)An officer or warrant officer is not qualified for membership of the court if—

(a)he is a member of the Military Court Service;

(b)he is a member of or on the staff of the Service Prosecuting Authority;

(c)he is a service policeman;

(d)he is a member of the Royal Army Chaplains' Department or the Royal Air Force Chaplains' Branch;

(e)he has a general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990 (c. 41);

(f)he is an advocate or solicitor in Scotland;

(g)he is a member of the Bar of Northern Ireland or a solicitor of the Court of Judicature of Northern Ireland; or

(h)he has in a relevant territory 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.

(5)In this section “relevant territory” means—

(a)any of the Channel Islands;

(b)the Isle of Man;

(c)a Commonwealth country; or

(d)a British overseas territory.

Commencement Information

I285S. 143 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I286S. 143 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

144Officers and warrant officers ineligible for membership in particular circumstancesU.K.

(1)An officer is ineligible for membership of the Summary Appeal Court for the hearing of an appeal under section 141 if—

(a)he was the commanding officer of the appellant at any time in the period beginning with the date of commission of the offence which is the subject of the finding against the appellant and ending with the start of the appeal hearing;

(b)before the summary hearing, he took part in investigating the subject matter of any finding against the appellant;

(c)he is a higher authority who dealt with an application made before the summary hearing for permission under section 54 or for extended powers for the purposes of any provision of section 133, 134, 135, 136 or 194;

(d)he serves under the command of a person within paragraph (c);

(e)he serves under the command of the officer who conducted the summary hearing; or

(f)before the summary hearing, he conducted (whether alone or with other persons) an inquiry into the subject matter of any finding against the appellant.

(2)A warrant officer is ineligible for membership of the Summary Appeal Court for the hearing of an appeal under section 141 if he falls within subsection (1)(b), (d), (e) or (f).

(3)Where there is more than one finding against the appellant, the reference in subsection (1)(a) to the date of commission of the offence there mentioned is to the date of commission of the earliest such offence.

(4)SAC rules may provide that an officer or warrant officer of a description prescribed by the rules is ineligible for membership of the Summary Appeal Court.

Commencement Information

I287S. 144 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I288S. 144 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

145Open courtU.K.

Subject to any provision made by SAC rules, the Summary Appeal Court must sit in open court.

Commencement Information

I289S. 145 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I290S. 145 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

146Hearing of appealsU.K.

(1)An appeal under section 141 against a finding is to be by way of—

(a)a rehearing of the charge; and

(b)except where section 147(2) applies, a rehearing as respects punishment.

(2)An appeal under section 141 against punishment is to be by way of a rehearing as respects punishment.

(3)In the case of the hearing of an appeal under section 141, rulings and directions on questions of law, procedure or practice are to be given by the judge advocate.

(4)Any rulings or directions given under subsection (3) are binding on the court.

Commencement Information

I291S. 146 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I292S. 146 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

147Powers of the SACU.K.

(1)At a rehearing of a charge by virtue of section 146(1)(a), the Summary Appeal Court may—

(a)confirm or quash the finding concerned; or

(b)substitute for the finding concerned a finding that another charge has been proved.

(2)Where the court quashes the finding, or (if there is more than one finding) every finding, made in respect of the appellant, it must quash the punishment which relates to that finding or, as the case may be, to those findings.

(3)At a rehearing as respects punishment by virtue of section 146(1)(b) or (2), the Summary Appeal Court may—

(a)confirm the punishment awarded; or

(b)quash that punishment and award in substitution for it any punishment which—

(i)it would have been within the powers of the officer who conducted the summary hearing to award; and

(ii)in the opinion of the court, is no more severe than the punishment originally awarded.

(4)SAC rules may make provision in connection with the exercise of the power under subsection (1)(b) (including provision restricting the exercise of the power).

(5)In determining—

(a)whether to substitute a term of detention, or

(b)the length of any such substituted term,

the court must take account of any period of the original term of detention that the appellant served.

Commencement Information

I293S. 147 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I294S. 147 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

148Effect of substituted punishmentU.K.

(1)Unless it otherwise directs, any punishment substituted by the Summary Appeal Court has effect as if awarded on the day on which the original punishment was awarded, but this is subject to subsection (2).

(2)Where the court substitutes a term of detention (other than a suspended sentence of service detention), the substituted term takes effect—

(a)if the court makes a direction under section 189(3), in accordance with the direction;

(b)otherwise, from the beginning of the day on which the punishment is substituted.

Commencement Information

I295S. 148 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I296S. 148 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

149Making of, and appeals from, decisions of the SACU.K.

(1)Subject to section 146(3), any decision of the Summary Appeal Court when constituted as mentioned in section 142(1) must be determined by a majority of the votes of the members of the court.

(2)The appellant or respondent may question any decision 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.

Commencement Information

I297S. 149 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I298S. 149 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

150Privileges of witnesses and othersU.K.

A witness before the Summary Appeal Court or any other person whose duty it is to attend the court is entitled to the same immunities and privileges as a witness before the High Court in England and Wales.

Commencement Information

I299S. 150 in force at 28.3.2009 for specified purposes by S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059)

I300S. 150 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4

151SAC rulesU.K.

(1)The Secretary of State may by rules (referred to in this Act as “SAC rules”) make provision with respect to the Summary Appeal Court.

(2)SAC rules may in particular make provision with respect to—

(a)sittings of the court, including the place of sitting and changes to the place of sitting;

(b)the hearing of appeals and other proceedings of the court;

(c)the practice and procedure of the court;

(d)evidence, including the admissibility of evidence;

(e)the representation of the appellant.

(3)Without prejudice to the generality of subsections (1) and (2), SAC rules may make provision—

(a)as to oaths and affirmations for members of the court, witnesses and other persons;

(b)as to objections to, and the replacement of, members of the court;

(c)as to the constitution of the court;

(d)for such powers of the court as may be prescribed by the rules to be exercised by a judge advocate;

(e)for procuring the attendance of witnesses and other persons and the production of documents and other things, including provision about—

(i)the payment of expenses to persons summoned to attend the court;

(ii)the issue by the court of warrants for the arrest of persons;

(f)enabling an uncontested appeal to be determined without a hearing;

(g)as to the bringing or abandonment of appeals;

(h)for the discharge of a court (including provision as to rehearings following discharge);

(i)as to notifications and references under section 152;

(j)for the making and retention of records of the proceedings of the court;

(k)for the supply of copies of such records, including provision about the fees payable for the supply of such copies;

(l)conferring functions in relation to the court on the court administration officer;

(m)for the delegation by the court administration officer of any of his functions in relation to the court.

(4)Provision that may be made by the rules by virtue of subsection (2)(d) includes provision applying, with or without modifications, any enactment (whenever passed) creating an offence in respect of statements admitted in evidence.

(5)Provision that may be made by the rules by virtue of subsection (3)(e)(ii) includes provision—

(a)conferring powers of arrest;

(b)requiring any arrested person to be brought before the court;

(c)authorising the keeping of persons in service custody, and the imposition of requirements on release from service custody (including provision applying section 107(5) and (6) with or without modifications).

(6)SAC rules may apply, with or without modifications, any enactment or subordinate legislation (whenever passed or made), including any provision made by or under this Act.

(7)In this section “appeal” means an appeal under section 141.