Part 5

Investigation, Charging and Mode of Trial
Chapter 1

Investigation

Duty of service policeman following investigation

Referral of case following investigation by service or civilian police
116
1
This section applies where—
a
a service police force or the tri-service serious crime unit 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 or the tri-service serious crime unit.
2
If—
a
a service policeman considers that there is sufficient evidence to charge a person with a service offence that is not a CO offence, or
b
a service policeman considers that there is sufficient evidence to charge a person with a 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, ...
b
subsection (2) does not apply , 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.
4
Subsection (4A) applies if—
a
the allegation or circumstances would indicate to a reasonable person that
a 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)
or 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
For 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 , 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).
S. 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)
S. 116 in force at 31.10.2009 in so far as not already in force by S.I. 2009/1167, art. 4
S. 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)
S. 116 modified (1.4.2013) by The Police and Fire Reform (Scotland) Act 2012 (Consequential Provisions and Modifications) Order 2013 (S.I. 2013/602), art. 1(2), Sch. 3 para. 9(2)
S. 116 excluded (1.8.2013) by The Armed Forces (Retrial for Serious Offences) Order 2013 (S.I. 2013/1852), arts. 1, 7(5) (with art. 3)
Words 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)
Words 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)
Word 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)
S. 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)
Words 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)
Words 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)
Words 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)
S. 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)
Words in s. 116(1) inserted (1.5.2022 for specified purposes, 5.12.2022 in so far as not already in force) by Armed Forces Act 2021 (c. 35), s. 24(1), Sch. 5 para. 29; S.I. 2022/471, reg. 2(e); S.I. 2022/1095, reg. 4