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Army Act 1955 (repealed)

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Version Superseded: 01/04/1997

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U.K.

Army Act 1955

1955 CHAPTER 18 3 and 4 Eliz 2

F1An Act to make provision with respect to the army.

[6th May 1955]

Textual Amendments

F1Act: the provisions of the 1955 Acts providing for findings of courts-martial to be subject to confirmation and to revision at the direction of the confirming officer cease to have effect (1.4.1997 subject to art. 3 of the commencing S.I.) by virtue of 1996 c. 46, s. 15; S.I. 1997/304, arts. 2, 3, Sch. 2

Modifications etc. (not altering text)

C1Act amended by Reserve Forces Act 1980 (c. 9), s. 117(3)(a) and amended (women's services) by Armed Forces Act 1981 (c. 55), Sch. 3 Pt. I para. 1; excluded by Reserve Forces Act 1980 (c. 9), s. 32(5); explained by Reserve Forces Act 1980 (c. 9), s. 142; restricted by Acts listed in Chronological Table of the Statutes, Belize Act 1981 (c. 52), Sch. 2 para. 1 and S.I. 1981/1105, Sch. para. 2(a)

Act amended (N.I.) (25.8.1996 temp. until 15.6.1997) by 1996 c. 22, ss. 54(7)(a), 62

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

C2Power to continue Act conferred by Armed Forces Act 1986 (c. 21, SIF 7:1), s. 1(2)

C4By Criminal Justice Act 1988 (c. 33, SIF 39:1), s. 123, Sch. 8 Pt. I paras. 1, 2 it is provided that in certain enactments including this Act for a reference to a detention centre or to a youth custody centre or to both there shall be substituted a reference to a young offender institution and for a reference (however expressed) to a detention centre order or to a sentence of youth custody or to both there shall be substituted a reference to a sentence of detention in a young offender institution.

C5Act continued in force for twelve months beyond 31.8.1990 by S.I. 1990/1501, art. 1

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

C7Act continued in force until 31.12.1991 by S.I. 1991/1696, art. 1

C8Act continued in force until 31.8.1992 by Armed Forces Act 1991 (c. 62, SIF 7:1), s. 1(1)

Power to continue Act conferred by Armed Forces Act 1991 (c. 62, SIF 7:1), s. 1(2)-(4)

Power to continue Act conferred (24.7.1996) by 1996 c. 46, s. 1(2) (subject to art. 1(3))

C10Act extended (1.4.1997 subject to art. 2(2) of the amending S.I.) by 1996 c. 14, s. 103 (with s. 72(5)); S.I. 1997/305, art. 2

C11Act continued in force until 31.8.1993 by S.I. 1992/1712, art. 1

Act continued in force until 31.8.1996 by S.I. 1995/1964, art. 1

Act continued in force for twelve months beyond 31.8.1993 by 1993/1804, art. 1

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

Act continued in force for twelve months beginning on the date immediately following 31.8.1995 by virtue of S.I. 1995/1964, art. 1

Act shall expire on 31.8.1997 (instead of expiring on 31.8.1996) unless continued in force in accordance with s. 1(1) of the amending Act by virtue of 1996 c. 46, s. 1(1)

Act continued in force for twelve months immediately following 31.8.1997 by virtue of S.I. 1997/1745, art. 2

Act continued in force for twelve months beyond 31.8.1998 by S.I. 1998/1499, art. 2

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

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

C12Act: expiry date and power to continue conferred (11.5.2001) by 2001 c. 19, s. 1(1)-(3)

C13Act continued in force (until 21.8.2003) by virtue of S.I. 2002/1820, art. 2

Part IU.K. Enlistment and Terms of Service

EnlistmentU.K.

1 Recruiting officers.U.K.

The following persons may enlist recruits in the regular forces and are in this Act referred to asrecruiting officers, that is to say,—

(a)whether within or without Her Majesty’s dominions, any officer authorised under regulations of [F2the Defence Council],

(b)in a colony, any person authorised by the Governor of the colony,

(c)outside Her Majesty’s dominions, any British consul-general, consul or vice-consul, and any person dulyexercising the authority of a British consul.

Textual Amendments

F2Words substituted by S.I. 1964/488, Sch. 1 Pt. I

2 Enlistment.U.K.

(1)A person offering to enlist in the regular forces shall be given a notice in the prescribed form settingout the questions to be answered on attestation and stating the general conditions of the engagement to beentered into by him; and a recruiting officer shall not enlist any person in the regular forces unlesssatisfied by that person that he has been given such a notice, understands it and wishes to be enlisted.

(2)The procedure for enlisting a person in the regular forces shall be that set out in the First Scheduleto this Act.

(3)A recruiting officer shall not enlist a person under the [F3appropriate minimum age] unless consent to the enlistment has been given in writing—

(a)if the person offering to enlist is living with both or one of his parents, by the parents or parent;

(b)if he is not living with both or one of his parents, but any person (whether a parent or not) whosewhereabouts are known or can after reasonable enquiry be ascertained has parental rights and powers inrespect of him, by that person;

(c)if there is no such person as is mentioned in paragraph (b) of this subsection or if after reasonableenquiry it cannot be ascertained whether there is any such person, by any person in whose care (whether inlaw or in fact) the person offering to enlist may be.

(4)Where the recruiting officer is satisfied, by the production of a certified copy of an entry in theregister of births or by any other evidence appearing to him to be sufficient, that a person offering toenlist has or has not attained the [F3appropriate minimum age], that person shall be deemed for the purposes of this Act to have attained, or as the case may be,not to have attained, that age.

A document purporting to be a certificate signed by the recruiting officer, stating that he is satisfiedas aforesaid, shall be sufficient evidence, until the contrary is proved, that he is so satisfied.

[F4(5)In this Part of this Act the expression “appropriate minimum age” means the age of eighteen or, in a case falling within any classfor which a lower age is for the time being prescribed, that lower age.]

Textual Amendments

Appointment to corps and transfer from one corps to anotherU.K.

3 Enlistment for general or corps service and appointment to and transfer between corps.U.K.

(1)Recruits may, in pursuance of regulations of [F5the Defence Council] under this Part of this Act, be enlisted for service in particular corps, but save as may be providedby such regulations recruits shall be enlisted for general service.

(2)The competent military authority shall as soon as practicable appoint a recruit, if enlisted for servicein a corps, to that corps, andif enlisted for general service, to such corps as the competent militaryauthority may think fit:

Provided that a recruit enlisted for general service before attaining the age of eighteen years neednot be appointed to a corps until he attains that age.

(3)A soldier of the regular forces may at any time be transferred by order of the competent militaryauthority from one corps to another:

Provided that except while a state of war exists between Her Majesty and any foreign power, or [F6a call-out order under section 52 of the Reserve Forces Act 1996 is in force authorising the call out for permanent service of members of the reserve], an order under this subsection shall not be madeotherwise than by [F5a member of the Army Board] unless the person to whom the order relates consents to the transfer.

(4)Where, in pursuance of the last foregoing subsection, a soldier of the regular forces is transferredto a corps in an arm or branch of the service different from that in which he was previously serving, thecompetent military authority may by order vary the conditions of his service so as to correspond with thegeneral conditions of service in the arm or branch to which he is transferred.

Textual Amendments

F5Words substituted by S.I. 1964/488, Sch. 1 Pt. I

F6Words in s. 3(3) substituted (1.1.1999) by S.I. 1998/3086, reg. 9(2) (with reg. 11, Sch.)

Modifications etc. (not altering text)

4—7.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F7U.K.

Textual Amendments

F7Ss. 4–8 repealed with saving by S.I. 1967/1018, Sch. 3 Pt. I

Extension of serviceU.K.

8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F8U.K.

Textual Amendments

F8Ss. 4–8 repealed with saving by S.I. 1967/1018, Sch. 3 Pt. I

9 Postponement in certain cases of discharge or transfer to the reserve. U.K.

[F9(1)This section applies to a soldier of the regular forces if, on the relevant date, a call-out order under section 52, 54 or 56 of the Reserve Forces Act 1996 is in force authorising the call out for permanent service of members of the reserve.

For the purposes of this section, “the relevant date”, in relation to a soldier, means the date on which he would, apart from this section, fall to be transferred to the reserve or he would be entitled to be discharged, as the case may be.

(1A)A soldier to whom this section applies may be retained in army service after the relevant date in accordance with this section for such period as the competent military authority may order, and his service may be prolonged accordingly.

(1B)The period for which a soldier may be retained in service after the relevant date by virtue of this section shall be limited as follows, that is to say—

(a)a soldier who would otherwise have fallen to be transferred to the reserve may not be retained for longer than the period for which, if the assumptions mentioned in subsection (1C) below are made in relation to him, he could have been required to serve on being called out under Part VI of the Reserve Forces Act 1996; or

(b)a soldier who would otherwise have been discharged may not be retained for longer than twelve months;

and a soldier who is retained in service is (if not transferred or discharged sooner) entitled to be transferred to the reserve or discharged, as the case may require, at the end of whichever of the above periods applies to him.

(1C)The assumptions to be made in relation to a soldier for the purposes of subsection (1B)(a) above are that—

(a)he was transferred to the reserve in time to be called out for permanent service starting on the relevant date; and

(b)he was so called out on the authority of the call-out order which justified his retention in service.]

(5)If while a soldier is being retained in army service by virtue of this section it appears to thecompetent military authority that his services can be dispensed with, he shall be entitled to be dischargedor transferred to the reserve as the case may require.

(6)Where, at the time at which under the foregoing provisions of this section a soldier is entitled to bedischarged or transferred to the reserve, a state of war exists between Her Majesty and any foreign power,he may, by declaration made in the prescribed form before his commanding officer, agree to continue in armyservice while such a state of war exists; and if the competent military authority approve he may continueaccordingly as if the period for which his term of service could be prolonged under the foregoing provisionsof this section were a period continuing so long as a state of war exists:

[F10(6A)Where a soldier is retained in service by virtue of this section but would otherwise have fallen to be transferred to the reserve—

(a)any period for which he is liable to serve in the reserve after the completion of his army service shall be reduced by the period for which he is so retained; and

(b)the period for which he is so retained shall be treated as a period of relevant service for the purposes of any provision of Part IV, V, VI or VII of the Reserve Forces Act 1996.]

Provided that if it is so specified in the declaration he shall be entitled to be discharged ortransferred to the reserve, as the case may require, at the expiration of three months’ notice given by himto his commanding officer.

(7)In relation to soldiers serving outside the United Kingdom, references in this section to being entitledto be transferred to the reserve shall be construed as references to being entitled to be sent to the UnitedKingdom with all convenient speed for the purpose of being transferred to the reserve.

Textual Amendments

Modifications etc. (not altering text)

C19S. 9 modified (1.1.1999) by S.I. 1998/3086, reg. 11, Sch. para. 1

[F1110

(1)If it appears to Her Majesty that national danger is imminent or that a great emergency has arisen, Shemay by order, signified under the hand of the Secretary of State, provide that soldiers who would otherwisefall to be transferred to the reserve shall continue in army service; and thereupon the last foregoingsection shall apply to such soldiers as it applies while [F12a call-out order under section 52 of the Reserve Forces Act 1996 authorising the call out of members of the reserve is in force].

(2)Where an order has been made under subsection (1) above, the occasion thereof shall forthwith becommunicated to Parliament.

(3)An order in force under subsection (1) above may be revoked by order of Her Majesty signified as thereinmentioned]

Textual Amendments

F12Words in s. 10(1) substituted (1.4.1997) by 1996 c. 14, s. 126, Sch. 7 para. 1(4) (with Sch. 7 para. 2); S.I. 1997/305, art. 2(1) (subject to art. 2(2))

Discharge and transfer to reserveU.K.

11 Discharge.U.K.

(1)Save as hereinafter provided every soldier of the regular forces, upon becoming entitled to bedischarged, shall be discharged with all convenient speed but until discharged shall remain subject tomilitary law.

(2)Where a soldier of the regular forces enlisted in the United Kingdom is, when entitled to be discharged,serving out of the United Kingdom, then—

(a)if he requires to be discharged in the United Kingdom, he shall be sent there free of cost with allconvenient speed and shall be discharged on his arrival there or, if he consents to his discharge beingdelayed, within six months from his arrival; but

(b)if at his request he is discharged at the place where he is serving he shall have no claim to be sentto the United Kingdom or elsewhere.

(3)Except in pursuance of the sentence of a court-martial (whether under this Act, [F13the M1Naval Discipline Act 1957] or the M2Air Force Act 1955), a soldier of the regular forces shall not bedischarged unless his discharge has been authorised by order of the competent military authority or byauthority direct from Her Majesty; and in any case the discharge of a soldier of the regular forces shallbe carried out in accordance with Queen’s Regulations.

(4)Every soldier of the regular forces shall on his discharge be given a certificate of dischargecontaining [F14the following particulars, namely—

(a)his name, rank and service number;

(b)his reserve liability (if applicable); and

(c)the reason for his discharge and the date of discharge,

together with any other particulars which are required to be included in the certificate by directions of the Defence Council or an officer authorised by them.]

(5)A soldier of the regular forces who is discharged in the United Kingdom shall be entitled to be conveyedfree of cost from the place where he is discharged to the place stated in his attestation paper to be theplace where he was attested or to any place at which he intends to reside and to which he can be conveyedwith no greater cost.

Textual Amendments

F13Words substituted by virtue of Naval Discipline Act 1957 (c. 53), s. 137(2)

F14Words in s. 11(4) and s. 11(4)(a)-(c) substituted for words (1.5.2001) by 1996 c. 46, s. 3(1); S.I. 2001/1519, art. 2

Marginal Citations

12 Transfer to the reserve.U.K.

(1)Every soldier of the regular forces upon falling to be transferred to the reserve shall be transferredto the reserve but until so transferred shall remain subject to military law.

(2)Where a soldier of the regular forces, when falling to be transferred to the reserve, is serving outof the United Kingdom, he shall be sent to the United Kingdom free of cost with all convenient speed andshall be transferred to the reserve on his arrival there, or if he consents to his transfer being delayed,within six months from his arrival:

Provided that if he so requests he may be transferred to the reserve without being required to returnto the United Kingdom.

(3)A soldier who is transferred to the reserve in the United Kingdom shall be entitled to be conveyed freeof cost from the place where he is transferred to the place stated in his attestation paper to be the placewhere he was attested or to any place at which he intends to reside and to which he can be conveyed withno greater cost:

Provided that he shall not be entitled to be conveyed to any place outside the United Kingdom.

13 Postponement of discharge or transfer pending proceedings for offences. U.K.

(1)Notwithstanding anything in this Part of this Act, a soldier of the regular forces shall not be entitledto be discharged or transferred to the reserve at a time when he has become liable, as a person subject tomilitary law, [F15the M3Naval Discipline Act 1957] or air-force law, to be proceeded against for an offence against any of the provisions of thisAct, [F15the Naval Discipline Act 1957] or the M4Air Force Act 1955:

Provided that if it is determined that the offence shall not be tried by court-martial this subsectionshall cease to apply.

(2)Notwithstanding anything in this Part of this Act, a soldier of the regular forces who is outside theUnited Kingdom and serving a sentence of imprisonment or detention awarded by a court-martial under thisAct, [F15the M5Naval Discipline Act 1957] or the M6Air Force Act 1955, shall not be entitled to be discharged or transferredto the reserve during the currency of the sentence.

Textual Amendments

F15Words substituted by virtue of Naval Discipline Act 1957 (c. 53), s. 137(2)

Modifications etc. (not altering text)

Marginal Citations

14. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F16U.K.

Textual Amendments

15 Right of warrant officer to discharge on reduction to ranks.U.K.

A warrant officer of the regular forces who is reduced to the ranks may thereupon claim to be dischargedunless a state of war exists between Her Majesty and any foreign power or [F17a call-out order under section 52 of the Reserve Forces Act 1996 is in force authorising the call out for permanent service of members of the reserve].

Textual Amendments

F17S. 15 substituted (1.1.1999) by S.I. 1998/3086, reg. 9(3) (with reg. 11, Sch.)

16. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F18U.K.

Miscellaneous and supplementary provisionsU.K.

17 Forfeiture of service for desertion and restoration of forfeited service.U.K.

(1)Where a soldier of the regular forces is convicted of desertion by court-martial, the period of hisservice as respects which he is convicted of having been a deserter shall be forfeited.

(2)Where any of a soldier’s service is forfeited the provisions of this Part of this Act . . . F19 shall apply to him, and he shall be liable to serve, in like manner as if theappropriate date were the date of his attestation and he had, on the appropriate date, been duly enlistedto serve for the like term (both as respects duration and as respects liability to army service and anyliability to serve in the reserve) as that for which he was in fact serving at the date of his conviction:

Provided that where at the date of his conviction the soldier was serving a term ending with theexpiration of a period beginning with the date of his attaining the age of eighteen years and he hadattained that age when he was convicted (whether or not he had attained it when the offence was committed)the duration of the term for which he is liable to serve shall be equal to that period and the time forwhich he is required to serve in army service shall be reduced accordingly.

[F20(3)In subsection (2) above “the appropriate date” means in relation to any person a date earlier than the date of hisconviction for desertion by the length of his service which is not forfeited.]

(4)Notwithstanding anything in the foregoing provisions of this section, the right conferred on a soldierby [F21regulations made in pursuance of section 2(1)(c) of the M7Armed ForcesAct 1966] shall not be exercisable, in consequence of a orfeiture of service, at a time earlier than that atwhich it would have been exercisable apart from the forfeiture.

(5)[F22The Defence Council] may by regulations make provision for the restoration in whole or in part of any forfeited serviceto a soldier in consideration of good service or on other grounds justifying the restoration of serviceforfeited.

(6)Where service of any description is restored to a person by virtue of the last foregoing subsectionwhile he is in army service,—

(a)the amount of the service so restored shall, subject to the provisions of the next following paragraph,be credited to him for the purpose of determining for the purposes of this Act the amount of service, armyservice or service in the reserve, as the case may require, which he has served or is liable to serve; but

(b)in the case of a person who, when his service is restored, is serving, or subsequently serves, on termswhich entitle him to the right conferred by [F21regulations made in pursuance of section 2(1)(c) of the M8Armed ForcesAct 1966] the restoration shall not operate to alter the dates on which, by reason of the operation ofsubsection (2) of this section, his army service may be determined in pursuance of an exercise of thatright.

(7)Nothing in this section shall apply to a person who deserts at a time when he is, under [F21regulations made in pursuance of section 2 of the M9Armed Forces Act1966 or under any enactment repealed by such regulations], continued in service after the completion of twenty-two years’ service.

Textual Amendments

F21Words substituted by S.I. 1967/1018, Sch. 3 Pt. 3

F22Words substituted by S.I. 1964/488, Sch. 1 Pt. I

Modifications etc. (not altering text)

Marginal Citations

18 Validity of attestation and enlistment.U.K.

(1)Where a person has signed the declaration required by the First Schedule to this Act, and has thereafterreceived pay as a soldier of the regular forces,—

(a)the validity of his enlistment shall not be called in question on the ground of any error or omissionin his attestation paper;

(b)if within three months from the date on which he signed the said declaration he claims that hisenlistment is invalid by reason of any non-compliance with the requirements of this Act as to enlistmentor attestation, or any other ground whatsoever (not being an error or omission in his attestation paper)on which apart from this subsection the validity of his enlistment could have been called in question, theclaim shall be submitted as soon as may be to [F23the Defence Council], and if the claim is well founded [F23the Defence Council] shall cause him to be discharged with all convenient speed;

(c)subject to the provisions of the last foregoing paragraph, he shall be deemed as from the expirationof the said three months to have been validly enlisted notwithstanding any such non-compliance or othergrounds as aforesaid;

(d)notwithstanding any such non-compliance or other grounds as aforesaid, or the making of a claim inpursuance of paragraph (b) of this subsection, he shall be deemed to be a soldier of the regular forcesuntil his discharge.

In the case of a person who when he signed the said declaration had not attained the [F24appropriate minimum age], paragraph (b) of this subsection shall have effect as if for the words “he claims" there weresubstituted the words “he, or any person whose consent to the enlistment was required under subsection(3) of section two of this Act but who did not duly consent, claims".

(2)Where a person has received pay as a soldier of the regular forces without having previously signed thedeclaration required by the First Schedule to this Act, then—

(a)he shall be deemed to be a soldier of the regular forces until discharged;

(b)he may claim his discharge at any time, and if he does so the claim shall be submitted as soon as maybe to [F23the Defence Council], who shall cause him to be discharged with all convenient speed.

(3)Nothing in the foregoing provisions of this section shall be construed as prejudicing the determinationof any question as to the term for which a person was enlisted or as preventing the discharge of a personwho has not claimed his discharge.

Textual Amendments

F23Words substituted by S.I. 1964/488, Sch. 1 Pt. I

19 False answers in attestation paper.U.K.

(1)If a person appearing before a recruiting officer for the purpose of being attested knowingly makes afalse answer to any question contained in the attestation paper and put to him by or by the direction ofthe recruiting officer, he shall be liable on summary conviction to imprisonment for a term not exceedingthree months or to a fine not exceeding [F25level 1 on the standard scale].

(2)For the avoidance of doubt it is hereby declared that a person may be proceeded against under thissection notwithstanding that he has since become subject to military law.

20. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F26U.K.

21 Service of aliens in regular forces.U.K.

(1)Subject to the provisions of the two next following subsections the number of aliens who at any one timeare serving (whether as officers or soldiers) in the regular forces shall not exceed one-fiftieth of theaggregate number at that time of those forces.

(2)In reckoning the number of aliens serving as aforesaid there shall be excluded persons enlisted outsidethe United Kingdom and serving in such units (if any) as may be prescribed, and officers serving in suchunits.

(3)[F27The Defence Council] may by regulations provide that at any time at which a state of war exists between Her Majesty andany foreign power or while [F28a call-out order under section 52 of the Reserve Forces Act 1996 is in force authorising the call out for permanent service of members of the reserve]subsection (1) of thissection shall have effect with the substitution for one-fiftieth of such other fraction as may be specifiedin the regulations.

(4)Nothing in section three of the Act of Settlement (which provides among other things that aliens areincapable of holding certain offices or places of trust) shall apply to an office or place of trust in theregular forces so long as the limit having effect under the foregoing provisions of this section is not exceeded.

(5)[F27The Defence Council] may by regulations provide that in such cases as may be prescribed by the regulations it shall notbe necessary to administer the oath of allegiance to an alien on his enlistment; and in relation to casesso prescribed this Act shall have effect with the omission of references to the administration and takingof the oath of allegiance.

Textual Amendments

F27Words substituted by S.I. 1964/488, Sch. 1 Pt. I

F28Words in s. 21(3) substituted (1.1.1999) by S.I. 1998/3086, reg. 9(4) (with reg. 11, Sch.)

22 Regulations as to enlistment.U.K.

[F29F30(1)[F31The Defence Council]] may make such regulations as appear to them necessary or expedient for the purposes of, or inconnection with, the enlistment of recruits for the regular forces and generally for carrying this Part ofthis Act into effect.

[F29(2)Any power conferred by this Part of this Act to make regulations (including the power under paragraph 5 of Schedule 1 to this Act) shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.]

Textual Amendments

F29S. 22(2) inserted (1.5.2001) by 1996 c. 46, s. 4(1) (with s. 4(4)); S.I. 2001/1519, art. 2

F30S. 22 renumbered (1.5.2001) as s. 22(1) by 1996 c. 46, s. 4(1) (with s. 4(4)); S.I. 2001/1519, art. 2

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

23 Interpretation of Part I.U.K.

(1)In this Part of this Act:—

  • competent military authority” means [F32the Defence Council] or any prescribed officer;

  • date of attestation”, in relation to any person, means the date on which he signs thedeclaration and takes the oath mentioned in paragraph 3 of the First Schedule to this Act;

  • [F33appropriate minimum age] has the meaning assigned to it by subsection (5) of section two of this Act;

  • prescribed” means prescribed by regulations made under this Part of this Act;

  • recruiting officer” has the meaning assigned to it by section one of this Act;

  • reserve” means . . . F34 the army reserve.

(2)References in this Part of this Act to soldiers shall include references to warrant officers and tonon-commissioned officers.

Textual Amendments

F32Words substituted by S.I. 1964/488, Sch. 1 Pt. I

Part IIU.K. Discipline and Trial and Punishment of Military Offences

Modifications etc. (not altering text)

C22Part II extended by Reserve Forces Act 1980 (c. 9), s. 142

C23Part II applied (1.6.1996 subject to art. 3 of the commencing S.I.) by Armed Forces Act 1991 (c. 62, SIF 7:1), ss. 18(9)(a), 20(10)(a); S.I. 1996/1173, art. 2

Misconduct in action and other offences arising out of military serviceU.K.

[F3524 Misconduct in action.U.K.

(1)A person subject to military law shall be guilty of an offence against this section if, without lawfulexcuse, he—

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

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

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

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

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

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

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

(3)A person guilty of an offence against this section shall, on conviction by court-martial, be [F36liable to imprisonment or any less punishment provided by this Act].

(4)The reference in subsection (2)(a) above to superior officers shall be construed in accordance withsection 33(2) of this Act.]

Textual Amendments

F35Ss. 24-26 substituted for ss. 24-28 by Armed Forces Act 1971 (c. 33), ss. 2(1), 78(4)

F36Words in s. 24(3) substituted (11.5.2001) by 2001 c. 19, s. 34, Sch. 6 Pt. 4 para. 14

25 Assisting the enemy.U.K.

(1)A person subject to military law shall be guilty of an offence against this section if, knowingly andwithout lawful excuse, he—

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

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

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

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

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

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

(2)A person guilty of an offence against this section shall, on conviction by court-martial, be [F37liable to imprisonment or any less punishment provided by this Act].

Textual Amendments

F37Words in s. 25(2) substituted (11.5.2001) by 2001 c. 19, s. 34, Sch. 6 Pt. 4 para. 15

26 Obstructing operations, giving false air signals, etc.U.K.

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

(2)A person subject to military law shall be guilty of an offence against this section if, knowingly andwithout lawful excuse, he gives any false air signal, or alters or interferes with any air signal or anyapparatus for giving an air signal.

(3)A person guilty of an offence against this section shall, on conviction by court-martial, be [F38liable to imprisonment or any less punishment provided by this Act]

Textual Amendments

F38Words in s. 26(3) substituted (11.5.2001) by 2001 c. 19, s. 34, Sch. 6 Pt. 4 para. 16

[F3927 Prize offences by commanding officers.U.K.

(1)Any person subject to military law who, being in command of any of Her Majesty’s ships oraircraft—

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

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

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

shall, on conviction by court-martial, be liable to imprisonment for a term not exceeding two yearsor any less punishment provided by this Act.

(2)In this section “prize court” means a prize court within the meaning of the M10Naval PrizeAct 1864, and “ship papers” and “aircraft papers” have the same meanings as in that Act.]

Textual Amendments

Marginal Citations

28 Other prize offences.U.K.

Any person subject to military law who—

(a)F40 ill-treats any person who is on board a ship or aircraft when taken as prize,or unlawfully takes from any such person anything in his possession, or

(b)removes out of any ship or aircraft taken as prize (otherwise than for safe keeping or for the necessaryuse and service of any of Her Majesty’s forces or any forces co-operating therewith) any goods notpreviously adjudged by a prize court within the meaning of the M11Naval Prize Act 1864 tobe lawful prize, or

(c)breaks bulk on board any ship or aircraft taken as prize, or detained in exercise of any belligerentright or under any enactment, with intent to steal anything therein,

shall, on conviction by court-martial, be liable to imprisonment for a term not exceeding two yearsor any less punishment provided by this Act.

Textual Amendments

Marginal Citations

[F4129 Offences by or in relation to sentries, persons on watch, etc.U.K.

Any person subject to military law who—

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

(b)F42 uses force against a member of Her Majesty’s forces, or of any forcesco-operating therewith, who is on guard duty and posted or ordered to patrol, or on watch, or under ordersto regulate traffic by land, water or air, or

(c)by the threat of force compels any such person as is mentioned, leaves any place where it is his dutyto be, or

(d)in paragraph (b) above to let him or any other person pass,

shall be liable, on conviction by court-martial, to imprisonment for a term not exceeding two yearsor any less punishment provided by this Act.]

[F4329A Failure to attend for duty, neglect of duty, etc.U.K.

Any person subject to military law who—

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

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

shall be liable, on conviction by court-martial, to imprisonment for a term not exceeding two yearsor any less punishment provided by this Act.]

Textual Amendments

30 Looting. U.K.

Any person subject to military law who—

(a)steals from, or with intent to steal searches, the person of anyone [F44killed, wounded or captured in the course of warlike operations, or killed, injuredor detained in the course of operations undertaken by Her Majesty’s forces for the preservation of law andorder or otherwise in aid of the civil authorities], or

(b)steals any property which has been left exposed or unprotected in consequence of [F44any such operations as are mentioned in paragraph (a) above], or

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

shall be guilty of looting and liable, on conviction by court-martial, to imprisonment or any lesspunishment provided by this Act.

Textual Amendments

Modifications etc. (not altering text)

Mutiny and insubordinationU.K.

31 Mutiny.U.K.

F45(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)Any person subject to military law who F46. . .,takes part in a mutiny, or incites any person subject to service law to take part in a mutiny, whetheractual or intended, shall, on conviction by court-martial, be liable to imprisonment or any less punishmentprovided by this Act.

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

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

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

(c)to impede the performance of any duty or service in Her Majesty’s forces or in any forces co-operatingtherewith or in any part of any of the said forces;F47

Textual Amendments

F45S. 31(1) repealed (11.5.2001) by 2001 c. 19, s. 38, Sch. 7 Pt. 4

F46Words in s. 31(2) repealed (11.5.2001) by 2001 c. 19, s. 38, Sch. 7 Pt. 4

32 Failure to suppress mutiny.U.K.

Any person subject to military law who, knowing that a mutiny is taking place or is intended,—

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

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

shall on conviction by [F48court-martial be liable to imprisonment or any less punishment provided by this Act].

Textual Amendments

F48Words in s. 32 substituted (11.5.2001) by 2001 c. 19, s. 34, Sch. 6 Pt. 4 para. 17

33 Insubordinate behaviour.U.K.

(1)Any person subject to military law who—

(a)F49 uses violence to, or offers violence to, his superior officer, or

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

shall, on conviction by court-martial, be liable to imprisonment or any less punishment provided bythis Act:

[F50Provided that it shall be a defence for any person charged under this subsection toprove that he neither knew nor had reasonable cause to believe that the person in relation to whom theoffence is alleged to have been committed was his superior officer.]

(2)In the foregoing provisions of this section the expression “superior officer”, in relation to any person, means an officer, warrant officer ornon-commissioned officer of the regular forces of superior rank, and includes an officer, warrant officeror non-commissioned officer of those forces of equal rank but greater seniority while exercising authorityas the said person’s superior.

[F5134 Disobedience to lawful commands.U.K.

Any person subject to military law who, whether wilfully or, through neglect, disobeys any lawfulcommand (by whatever means communicated to him) shall, on conviction by court-martial, be liable toimprisonment or any less punishment provided by this Act.]

Textual Amendments

[F5234A Failure to provide a sample for drug testing.U.K.

(1)Any person subject to military law who, when requested to do so by a drug testing officer, fails to provide a sample of his urine for testing for the presence of drugs shall, on conviction by court-martial, be liable to imprisonment for a term not exceeding six months or any less punishment provided by this Act.

(2)For the purposes of this section—

  • drug” means any drug which is a controlled drug for the purposes of the M12Misuse of Drugs Act 1971; and

  • drug testing officer” means an officer, warrant officer or non-commissioned officer who is authorised by or in accordance with Queen’s Regulations for the purpose of supervising the conduct of tests for the presence of drugs.]

Textual Amendments

F52S. 34A inserted (1.10.1996 subject to art. 3 of the commencing S.I.) by 1996 c. 46, s. 32(1); S.I. 1996/2474, art. 2 (with art. 3)

Marginal Citations

35 Obstruction of provost officers.U.K.

Any person subject to military law who—

(a)obstructs, or

(b)when called on, refuses to assist,

[F53any provost officer, or any person] (whether subject to military law or not) legally exercising authority under or on behalf of a provostofficer, shall, on conviction by court-martial, be liable to imprisonment for a term not exceeding two yearsor any less punishment provided by this Act:

[F54Provided that it shall be a defence for any person charged under this section to provethat he neither knew nor had reasonable cause to believe that the person in relation to whom the offenceis alleged to have been committed was a provost officer or, as the case may be, a person legally exercisingauthority under or on behalf of a provost officer.]

Textual Amendments

36 Disobedience to standing orders.U.K.

(1)Any person subject to military law who contravenes or fails to comply with any provision of orders towhich this section applies, being a provision known to him, or which he might reasonably be expected toknow, shall, on conviction by court-martial, be liable to imprisonment for a term not exceeding two yearsor any less punishment provided by this Act.

(2)This section applies to standing orders or other routine orders of a continuing nature made for anyformation or unit or [F55body of Her Majesty’s forces], or for any command or other area, garrison or place, or for any ship, train or aircraft.

Textual Amendments

Desertion, absence without leave, etc.U.K.

[F5637 Desertion.U.K.

(1)Any person subject to military law who deserts shall, on conviction by court-martial, be liable toimprisonment or any less punishment provided by this Act.

(2)For the purposes of this Act a person deserts who—

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

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

and references in this Act to desertion shall be construed accordingly.]

Textual Amendments

[F5738 Absence without leave.U.K.

Any person subject to military law who—

(a)absents himself without leave, or

(b)improperly leaves his ship,

shall, on conviction by court-martial, be liable to imprisonment for a term not exceeding two yearsor any less punishment provided by this Act.]

Textual Amendments

[F5839 Failure to report or apprehend deserters or absentees.U.K.

Any person subject to military law who, knowing that any other person so subject has committed anoffence, or is attempting to commit an offence, under section 37(1) or section 38 of this Act—

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

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

shall be liable, on conviction by court-martial, to imprisonment for a term not exceeding two yearsor any less punishment provided by this Act.]

Textual Amendments

40, 41.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F59U.K.

Textual Amendments

F59Ss. 40, 41, 53 and 58 repealed by Armed Forces Act 1971 (c. 33), s. 78(4), Sch. 4 Pt.I

Malingering and drunkennessU.K.

42 Malingering.U.K.

(1)Any person subject to military law who—

(a)falsely pretends to be suffering from sickness or disability, or

(b)injures himself with intent thereby to render himself unfit for service, or causes himself to be injuredby any person with that intent, or

(c)injures another person subject to [F60service law], at the instance of that person, with intent thereby to render that person unfit for service, or

(d)with intent to render or keep himself unfit for service, does or fails to do any thing (whether at thetime of the act or omission he is in hospital or not) whereby he produces, or prolongs or aggravates, anysickness or disability,

shall be guilty of malingering and shall, on conviction by court-martial, be liable to imprisonmentfor a term not exceeding two years or any less punishment provided by this Act.

(2)In this section the expression “unfit” includes temporarily unfit.

Textual Amendments

43 Drunkenness.U.K.

(1)Any person subject to military law who is guilty of drunkenness, whether on duty or not, shall, onconviction by court-martial, be liable to imprisonment for a term not exceeding two years or any lesspunishment provided by this Act F61

F62(2)For the purposes of this section a person is guilty of drunkenness if owing to the influence of alcoholor any drug, whether alone or in combination with any other circumstances, he is unfit to be entrusted withhis duty or with any duty which [F63he might reasonably expect to be called upon to perform], or behaves in a disorderly manner or in any manner likely to bring discredit on Her Majesty’sservice.

Disorderly conductU.K.

[F6443A Fighting, threatening words, etc.U.K.

Any person subject to military law who, without reasonable excuse—

(a)fights with any other person, whether subject to military law or not, or

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

shall, on conviction by court-martial, be liable to imprisonment for a term not exceeding two yearsor any less punishment provided by this Act.]

Textual Amendments

Offences relating to propertyU.K.

[F6544 Damage to, and loss of, public or service property, etc.U.K.

(1)Any person subject to military law who—

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

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

shall, on conviction by court-martial, be liable to imprisonment or any less punishment provided bythis Act.

(2)Any person subject to military law who—

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

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

shall, on conviction by court-martial, be liable to imprisonment for a term not exceeding two yearsor any less punishment provided by this Act.]

Textual Amendments

F65Ss. 44, 44A-46 substituted for ss. 44-46 by Armed Forces Act 1971 (c. 33), ss. 17(1),78(4)

44A Damage to, and loss of, Her Majesty’s aircraft or aircraft material.U.K.

(1)Without prejudice to the generality of section 44 above, a person subject to military law shall beguilty of an offence against this section if he—

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

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

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

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

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

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

(2)A person guilty of an offence against this section shall, on conviction by court-martial, beliable—

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

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

[F6644B Interference etc. with equipment, messages or signals.U.K.

(1)Any person subject to military law who by any conduct of his—

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

(b)intentionally interferes with or modifies any message or other signal which is being transmitted, bymeans of [F67an electronic communications network] , directly or indirectly to or from any such equipment,

shall, on conviction by court-martial, be liable to imprisonment or any less punishment provided bythis Act.

(2)Any person subject to military law who is guilty of any conduct which is likely to have theeffect—

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

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

shall (whether or not that conduct has that effect) be liable, on conviction by court-martial, toimprisonment for a term not exceeding two years or any less punishment provided by this Act.

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

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

(5)In this section—

  • conduct” includes any act or omission;

  • equipment” includes any apparatus, any computer and any vessel, aircraft or vehicle;F68...

  • F68...M13]

Textual Amendments

F67Words in s. 44B(1)(b) substituted (25.7.2003 for specified purposes, 29.12.2003 in so far as not already in force) by Communications Act 2003 (c. 21), s. 411(2), Sch. 17 para. 23 (with Sch. 18); S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)); S.I. 2003/3142, art. 3(2)

F68Words in s. 44B(5) repealed (25.7.2003 for specified purposes, 29.12.2003 in so far as not already in force) by Communications Act 2003 (c. 21), s. 411(2), Sch. 19(1) Note 1 (with Sch. 18); S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)); S.I. 2003/3142, art. 3(2)

Marginal Citations

45 Misapplication and waste of public or service property. U.K.

Any person subject to military law who misapplies or wastefully expends any public or service propertyshall, on conviction by court-martial, be liable to imprisonment for a term not exceeding two years or anyless punishment provided by this Act.

Modifications etc. (not altering text)

46 Offences relating to issues and decorations. U.K.

(1)Any person subject to military law who makes away with (whether by pawning, selling, destroying or inany other way), or loses, or by negligence damages or allows to be damaged—

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

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

shall, on conviction by court-martial, be liable to imprisonment for a term not exceeding two yearsor any less punishment provided by this Act.

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

Modifications etc. (not altering text)

Offences relating to billeting and requisitioning of vehiclesU.K.

47 Billeting Offences.U.K.

Any person subject to military law who—

(a)knowing that no billeting requisition is in force under Part IV of this Act authorising him to demandany billets or that he is otherwise not authorised to demand them, obtains those billets or orders orprocures another person to obtain them;

(b)takes or agrees to take, or demands, from a person on whom he or any other person or any vehicle is oris to be billeted in pursuance of a billeting requisition under Part IV of this Act any money or thing asconsideration for not requiring, or ceasing to require, accommodation for himself or the said other personor standing room for the vehicle; or

[F69(c)wilfully or by wilful neglect damages, or causes or allows to be damaged, any premises in which he isbilleted in pursuance of such a requisition, or any property being in such premises],

shall, on conviction by court-martial, be liable to imprisonment for a term not exceeding two yearsor any less punishment provided by this Act.

Textual Amendments

48 Offences in relation to requisitioning of vehicles.U.K.

(1)Any person subject to military law who—

(a)knowing that no requisitioning order is in force under Part IV of this Act authorising him to givedirections for the provision of any vehicle, or that he is otherwise not authorised to give such directions,gives directions for the provision of the vehicle or orders or procures another person to give suchdirections, or

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

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

shall, on conviction by court-martial, be liable to imprisonment for a term not exceeding two yearsor any less punishment provided by this Act.

(2)The last foregoing subsection shall apply in relation to horses, mules, food, forage and stores (withinthe meaning of Part IV of this Act) as it applies in relation to vehicles.

Flying etc. offencesU.K.

[F7048A Loss or hazarding of ship.U.K.

Any person subject to military law who, either wilfully or by negligence, causes or allows to be lost,stranded or hazarded any of Her Majesty’s ships shall, on conviction by court-martial, be liable—

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

(b)in any other case, to imprisonment for a term not exceeding two years or any less punishment soprovided.]

Textual Amendments

49 Dangerous flying, etc.U.K.

Any person subject to military law who is guilty of any act or neglect in flying, or in the use of anyaircraft, or in relation to any aircraft or aircraft material, which causes or is likely to cause loss oflife or bodily injury to any person shall, on conviction by court-martial, be liable to imprisonment or anyless punishment provided by this Act:

Provided that if the offender has not acted wilfully or with wilful neglect he shall not be liableto be imprisoned for more than two years.

[F7150 Inaccurate certification.U.K.

Any person subject to military law who makes or signs, without having ensured its accuracy,—

(a)a certificate relating to any matter affecting the seagoing or fighting efficiency of any of HerMajesty’s ships, or

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

shall, on conviction by court-martial, be liable to imprisonment for a term not exceeding two yearsor any less punishment provided by this Act.]

Textual Amendments

51 Low flying.U.K.

Any person subject to military law who, being the pilot of one of Her Majesty’s aircraft, flies it ata height less than such height as may be provided by any regulations issued under the authority of [F72the Defence Council], F73, except—

(a)while taking off or alighting, or

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

shall, on conviction by court-martial, be liable to imprisonment for a term not exceeding two yearsor any less punishment provided by this Act:

[F74Provided that where a pilot flies an aircraft in contravention of this section on theorders of some other person who is in command of the aircraft, that other person shall be treated for thepurposes of this section as having been the pilot of, and flying, the aircraft at the material time.]

Textual Amendments

F72Words substituted by S.I. 1964/488, Sch. 1 Pt. I

F73Words repealed by S.I. 1964/488, Sch. 1 Pt. I

52 Annoyance by flying.U.K.

Any person subject to military law who, being the pilot of one of Her Majesty’s aircraft, flies it soas to cause, or to be likely to cause, unnecessary annoyance to any person shall, on conviction bycourt-martial, be liable to [F75dismissal from Her Majesty’s service] or any less punishment provided by this Act:

[F76Provided that where a pilot flies an aircraft in contravention of this section on theorders of some other person who is in command of the aircraft, that other person shall be treated for thepurposes of this section as having been the pilot of, and flying, the aircraft at the material time.]

Textual Amendments

Offences relating to, and by, persons in custodyU.K.

53. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F77U.K.

Textual Amendments

F77Ss. 40, 41, 53 and 58 repealed by Armed Forces Act 1971 (c. 33), s. 78(4), Sch. 4 Pt.I

54 Permitting escape, and unlawful release of prisoners.U.K.

(1)Any person subject to military law who wilfully allows to escape any person who is committed to hischarge, or whom it is his duty to guard, shall, on conviction by court-martial, be liable to imprisonmentor any less punishment provided by this Act.

(2)Any person subject to military law who—

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

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

shall, on conviction by court-martial, be liable to imprisonment for a term not exceeding two yearsor any less punishment provided by this Act.

55 Resistance to arrest.U.K.

(1)Any person subject to military law who, being concerned in any quarrel or disorder, refuses to obey anyofficer who orders him into arrest, or F78 uses violence to, or offers violence to, any such officer, shall be guiltyof an offence against this section whether or not the officer is his superior officer.

(2)Any person subject to military law who F78 uses violence to, or offers violence to, any person, whether subject tomilitary law or not, whose duty it is to apprehend him or in whose custody he is shall be guilty of anoffence against this section.

(3)Any person guilty of an offence against this section shall, on conviction by court-martial, be liableto imprisonment for a term not exceeding two years or any less punishment provided by this Act.

Textual Amendments

56 Escape from confinement.U.K.

Any person subject to military law who escapes from arrest, prison or other lawful custody (whethermilitary or not), shall, on conviction by court-martial, be liable to imprisonment for a term not exceedingtwo years or any less punishment provided by this Act.

Offences in relation to courts-martial and civil authoritiesU.K.

57 Offences in relation to courts-martial.U.K.

(1)Any person subject to military law who—

(a)having been duly summoned or ordered to attend as a witness before a court-martial, fails to comply withthe summons or order, or

(b)refuses to swear an oath when duly required by a court-martial to do so, or

(c)refuses to produce any [F79document or other thing which is in his custody or under his control and] which a court-martial has lawfully required him to produce, or

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

(e)wilfully insults any person, being a member of a court-martial or a witness or any other person whoseduty it is to attend on or before the court, while that person is acting as a member thereof or is soattending, or wilfully insults any such person as aforesaid while that person is going to or returning fromthe proceedings of the court, or

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

shall, on conviction by a court-martial, other than the court in relation to which the offence wascommitted, be liable to imprisonment for a term not exceeding two years or any less punishment provided bythis Act.

(2)Notwithstanding anything in the last foregoing subsection, where an offence against F80 that subsection is committed in relation to any court-martial held in pursuanceof this Act that court, if of opinion that it is expedient that the offender should be dealt with summarilyby the court instead of being brought to trial before another court-martial, may by order under the handof the president [F81sentence the offender—

(a)if he is an officer, to imprisonment for a term not exceeding twenty-one days, or to a fine notexceeding the amount of his pay for twenty-eight days F82. . .,

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

[F83(2A)If the offender has attained seventeen years of age but is under twenty-one years of age, subsection(2) above shall have effect in relation to him as if the power to impose a sentence of imprisonment werea power to make an order under section 71AA below.]

[F84(2B)For the purposes of subsection (2) above, a day’s pay shall be taken to be–

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

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

F84(2C)In subsection (2B)(b) above “special member" and “ordinary member" have the same meaning as in the Reserve Forces Act 1996.]

(3)References in paragraphs (a) to (f) of subsection (1) of this section to a court-martial shall includereferences to a court-martial F85. . . held in pursuance of [F86the M14Naval Discipline Act 1957], [F87and to a court-martial held in pursuance of] the M15Air Force Act 1955, or the law of any colony.

[F88(4)References in paragraphs (a) to (f) of subsection (1) of this section to a court-martial or to a member of a court-martial include references to a judicial officer or a person appointed under section 75L of the Air Force Act 1955 or section 47M of the Naval Discipline Act 1957 and, in relation to an offence committed in relation to a judicial officer or any person so appointed, that subsection shall have effect as if the words “other than the court in relation to which the offence was committed" were omitted.

(5)In relation to an offence committed in relation to a judicial officer, subsection (2) of this section shall have effect as if—

(a)the references to a court-martial held in pursuance of this Act were references to the judicial officer,

(b)for “another court-martial" there were substituted “a court-martial", and

(c)the words “under the hand of the president" were omitted.]

[F89(6)References in paragraphs (a) to (f) of subsection (1) of this section to a court-martial include references to the summary appeal court, the court established by section 83ZA of the Air Force Act 1955 or the court established by section 52FF of the Naval Discipline Act 1957 and, in relation to an offence committed in relation to any of those courts, that subsection shall have effect as if the words “other than the court in relation to which the offence was committed" were omitted.

(7)In relation to an offence committed in relation to the summary appeal court, subsection (2) of this section shall have effect as if—

(a)the reference to a court-martial held in pursuance of this Act were a reference to the summary appeal court,

(b)for “another court-martial" there were substituted “a court-martial", and

(c)for “the president" there were substituted “the judge advocate".]

Textual Amendments

F79Words in s. 57(1)(c) inserted (28.2.2002) by 2001 c. 19, s. 24(2)(a); S.I. 2002/345, art. 2 (subject to transitional provisions in art. 3)

F82Words in s. 57(2)(a) omitted (1.1.1999) by virtue of S.I. 1998/3086, reg. 4(1)(a)

F83S. 57(2A) inserted by Criminal Justice Act 1982 (c. 48, SIF 39:1),s. 58, Sch. 8 para.1(1)

F84S. 57(2B)(2C) inserted (1.1.1999) by S.I. 1998/3086, reg. 4(2)

F85Words in s. 57(3) repealed (28.2.2002) by 2001 c. 19, s. 38, Sch. 7 Pt. 1; S.I. 2002/345, art. 2 (subject to transitional provisions in art. 3)

F86Words substituted by virtue of Naval Discipline Act 1957 (c. 53), s. 137(2)

F88S. 57(4)(5) inserted (2.10.2000) by 2000 c. 4, s. 10, Sch. 1 para. 1(1); S.I. 2000/2366, art. 2 (with Sch. para. 13)

F89S. 57(6)(7) inserted (2.10.2000) by 2000 c. 4, s. 25, Sch. 3 para. 1; S.I. 2000/2366, art. 2 (with Sch. para. 13)

Modifications etc. (not altering text)

Marginal Citations

58. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F90U.K.

Textual Amendments

F90Ss. 40, 41, 53 and 58 repealed by Armed Forces Act 1971 (c. 33), s. 78(4), Sch. 4 Pt.I

59. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F91U.K.

Textual Amendments

Miscellaneous offencesU.K.

[F9260 Unauthorised disclosure of information.U.K.

(1)Any person subject to military law who without lawful authority discloses or purports to disclose,whether orally, in writing, by signal or by any other means whatsoever, information relating to any matterupon which information would or might be useful to an enemy shall, on conviction by court-martial, be liableto imprisonment for a term not exceeding two years or any less punishment provided by this Act.

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

Textual Amendments

61 Making of false statements on enlistment. U.K.

Any person who, when before a recruiting officer for the purpose of being attested in pursuance of PartI of this Act, has knowingly made a false answer to any question contained in the attestation paper and putto him by or by the direction of the recruiting officer shall if he has since become and remains subjectto military law be liable, on conviction by court-martial, to the like imprisonment as on summary convictionof an offence against section nineteen of this Act or to any less punishment provided by this Act.

Modifications etc. (not altering text)

[F9362 Making of false documents.U.K.

(1)A person subject to military law who—

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

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

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

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

is liable on conviction by court-martial to imprisonment for a term not exceeding two years or any less punishment provided by this Act.

(2)For the purposes of this section—

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

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

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

Textual Amendments

F93S. 62 substituted (31.1.1997) by 1995 c. 38, s. 15(1), Sch. 1 para. 1 (with ss. 1(3), 6(4)(5), 14); S.I. 1996/3217, art. 2

63 Offences against civilian population.U.K.

Any person subject to military law who, in any country or territory outside the United Kingdom, commitsany offence against the person or property of any member of the civil population shall, on conviction bycourt-martial, be liable to imprisonment for a term not exceeding two years or any less punishment providedby this Act.

[F9463A Offences against morale.U.K.

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

Textual Amendments

[F9564 Scandalous conduct by officers. U.K.

Every officer subject to military law who behaves in a scandalous manner unbecoming the character ofan officer shall, on conviction by court-martial, be liable to dismissal from Her Majesty’s service withor without disgrace.]

Textual Amendments

Modifications etc. (not altering text)

C29S. 64 extended (E.W.) (S.) by Rehabilitation of offenders Act 1974 (c. 53), s. 2(3)(a)

65 Ill-treatment of officers or men of inferior rank.U.K.

If—

(a)any officer subject to military law F96 ill-treats any officer subject thereto of inferior rank or less seniority orany warrant officer, non-commissioned officer or soldier subject to military law, or

(b)any warrant officer or non-commissioned officer subject to military law F96 ill-treats any person subject to military law, being a warrant officer ornon-commissioned officer of inferior rank or less seniority or a soldier,

he shall, on conviction by court-martial, be liable to imprisonment for a term not exceeding two yearsor any less punishment provided by this Act.

Textual Amendments

66 Disgraceful conduct. U.K.

Any person subject to military law who is guilty of disgraceful conduct of a cruel, indecent orunnatural kind shall, on conviction by court-martial, be liable to imprisonment for a term not exceedingtwo years or any less punishment provided by this Act.

Modifications etc. (not altering text)

67. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F97U.K.

Textual Amendments

F97Ss. 67, 75(3) and 81(3) repealed by Armed Forces Act 1971 (c. 33), s. 78(4), Sch. 4 Pt.I

68 Attempts to commit military offences.U.K.

Any person subject to military law who attempts to commit an offence against any of the foregoingprovisions of this Part of this Act [F98or against section 69 below] shall, on conviction by court-martial, be liable to the like punishment as for that offence:

F99. . ..

Textual Amendments

F99Words in s. 68 proviso repealed (11.5.2001) by 2001 c. 19, s. 38, Sch. 7 Pt. 4

[F10068A Aiding and abetting etc., and inciting.U.K.

(1)Any person subject to military law who aids, abets, counsels or procures the commission by anotherperson of an offence against any of the foregoing provisions of this Part of this Act, or against section69 below, or who incites another person to commit any such offence, shall himself be guilty of the offencein question, and shall be liable to be charged, tried and punished accordingly.

(2)A person may be guilty by virtue of subsection (1) above of an offence against section 62 of this Actwhether or not he knows the nature of the document in question.]

Textual Amendments

69 Conduct to prejudice of military discipline.U.K.

Any person subject to military law who is guilty [F101, whether by any act or ommission or otherwise, of conduct] to the prejudice of good order and military discipline shall, on conviction by court-martial, beliable to imprisonment for a term not exceeding two years or any less punishment provided by this Act.

Textual Amendments

Civil offencesU.K.

70 Civil offences. U.K.

(1)Any person subject to military law who commits a civil offence, whether in the United Kingdom orelsewhere, shall be guilty of an offence against this section.

(2)In this Act the expression “civil offence” means any act or omission punishable by the law of England or which, ifcommitted in England, would be punishable by that law; and in this Act the expression “the corresponding civil offence” means the civil offence the commission of whichconstitutes the offence against this section.

[F102(2A)For the purpose of determining under this section whether an attempt to commit an offence is a civiloffence, subsection (4) of section 1 of the M16Criminal Attempts Act 1981 (which relatesto the offence of attempt) shall have effect as if for the words “offence which, if it were completed,would be triable in England and Wales as an indictable offence" there were substituted the words “civiloffence consisting of an act punishable by the law of England and Wales as an indictable offence or an actwhich, if committed in England or Wales, would be so punishable by that law".]

(3)[F103Subject to section 71A below,] a person convicted by court-martial of an offence against this section shall—

F104(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F105(aa)if the corresponding civil offence is one for which the sentence is fixed by law as life imprisonment, be sentenced to imprisonment for life;]

(b)in any other case, be liable to suffer any punishment or punishments which a civil court could awardfor the corresponding civil offence, if committed in England, being a punishment or punishments providedby this Act, or such punishment, less than the maximum punishment which a civil court could so award, asis so provided:

F106[F107(3A)Where the corresponding civil offence is one to which [F108section 109, 110 or 111 of the Powers of Criminal Courts (Sentencing) Act 2000] would apply, the court-martial shall impose the sentence required by subsection (2) of that section unless it is of the opinion that there are exceptional circumstances which justify its not doing so.]

(4)A person shall not be charged with an offence against this section committed in the United Kingdom ifthe corresponding civil offence is treason, murder, manslaughter, treason-felony F109... [F110or an offence under section 1 of the Geneva Conventions Act 1957]. . . [F111or an offence under section 1 of the M17Biological Weapons Act 1974 [F112or an offence under section 2 or 11 of the Chemical Weapons Act 1996].][F110or an offence under section 51 or 52 of the International Criminal Court Act 2001 [F113or an offence under section 1 of the Sexual Offences Act 2003 (rape)]]

[F114In this and the following subsection the references to murder shall apply also toaiding, abetting, counselling or procuring suicide.]

(5)Where the corresponding civil offence is murder or manslaughter [F110, or an offence under section 1 of the Geneva Conventions Act 1957 or section 51 of the International Criminal Court Act 2001 consisting of the killing of a person,]. . . an offence against this section shall be deemed, for the purposes of the last foregoing subsection,to have been committed at the place of the commission of the act or occurrence of the neglect which causedthe death, irrespective of the place of the death.

[F115(6)A person subject to military law may be charged with an offence against this section notwithstandingthat he could on the same facts be charged with an offence against any other provision of this Part of thisAct.]

Textual Amendments

F104S. 70(3)(a) repealed (11.5.2001) by 2001 c. 19, s. 38, Sch. 7 Pt. 4

F105S. 70(3)(aa) substituted for s. 70(3)(aa)(ab) (1.10.2001) by 2001 c. 19, s. 34, Sch. 6 Pt. 6 para. 33(2); S.I. 2001/3234, art. 2

F107S. 70(3A) inserted (1.10.1997 for certain purposes and otherwise prosp.) by 1997 c. 43, ss. 55, 57(2), Sch. 4 para. 1(1); S.I. 1997/2200, art. 2(1)(l)(2)(a) (subject to art. 5)

F108Words in s. 70(3A) substituted (25.8.2000) by 2000 c. 6, s. 165, Sch. 9 para. 8

F110Words in s. 70(4)(5) inserted (13.6.2001 for certain purposes and 1.9.2001 otherwise) by 2001 c. 17, ss. 74(2)(3); S.I. 2001/2161, arts. 2, 3 (as amended by S.I. 2001/2304, art. 2)

F112Words in s. 70(4) inserted (16.9.1996) by 1996 c. 6, s. 35(a) (with s. 37); S.I. 1996/2054, art. 2

Modifications etc. (not altering text)

C32S. 70 modified (1.10.1997) by 1997 c. 43, s. 7(1); S.I. 1997/2200, art. 2(1)(l)(2)(a) (subject to art. 5)

Marginal Citations

Punishments available to courts-martialU.K.

[F11671 Scale of punishments, and supplementary provisions.U.K.

(1)The punishments which may be awarded by sentence of a court-martial under this Act are, subject to thefollowing provisions of this section [F117and section 71A below] and to the limitations hereinafter provided on the powers of certain courts-martial, as follows—

(a)F118. . .

(b)imprisonment,

[F119(bb)detention by virtue of a custodial order made under section 71AA of this Act;]

[F120(bc)order that the convicted person be disqualified from working with children]

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

(d)dismissal from Her Majesty’s service,

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

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

(g)reduction to the ranks or any less reduction in rank,

(h)fine,

(i)severe reprimand,

(j)reprimand,

(k)in the case of an offence which has occasioned any expense [F121personal injury] , loss or damage, stoppages, and

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

and references in this Act to any punishment provided by this Act are, subject to the limitationimposed in any particular case by the addition of the word “less", references to any one or more ofthe said punishments.

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

[F122Provided that a punishment such as is mentioned in paragraph (e) of thissubsection shall not be treated as a less punishment than a punishment such as is mentioned in paragraph(b) or (bb) if the term of detention is longer than the term of imprisonment or, as the case may be, thanthe term of detention by virtue of the custodial order.]

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

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

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

(c)in relation to a convicted person who is a non-commissioned officer, with the omission of paragraph (f),and

(d)in relation to a convicted person who is a soldier, with the omission of paragraphs (f), (g), (i) and(j).

(3)A person [F123who, otherwise than under section 57(2) of this Act, is] sentenced by a court-martial to imprisonment shall also be sentenced either to dismissal with disgracefrom Her Majesty’s service or to dismissal from Her Majesty’s service:

Provided that, if the court-martial fail to give effect to this subsection, their sentence shall notbe invalid, but shall be deemed to include a sentence of dismissal from Her Majesty’s service.

(4)A warrant officer or non-commissioned officer [F123who, otherwise than under section 57(2) of this Act, is] sentenced by a court-martial to imprisonment, to dismissal from Her Majesty’s service (whether or notwith disgrace), or to detention, shall also be sentenced to be reduced to the ranks:

Provided that, if the court-martial fail to give effect to this subsection, their sentence shall notbe invalid, but shall be deemed to include a sentence of reduction to the ranks.

(5)The amount of a fine that may be awarded by a court-martial—

(a)except in the case of an offence against section 70 of this Act, shall not exceed the amount of theoffender’s pay for twenty-eight days or, where the offence was committed on active service, fifty-six days,and

(b)in the said excepted case—

(i)where the civil offence constituting an offence against that section is punishable by a civil court inEngland only on summary conviction, and is so punishable by a fine, shall not exceed the maximum amount ofthat fine, and

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

F124. . ..

[F125(5A)For the purposes of subsection (5) above, a day’s pay shall be taken to be–

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

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

F125(5B)In subsection (5A)(b) above “special member" and “ordinary member" have the same meaning as in the Reserve Forces Act 1996.]

[F126(6)Unless the Secretary of State by order provides that this subsection shall no longer apply, the stoppages awarded by a court-martial in respect of any offence occasioning personal injury of which a person is convicted or any other such offence which is taken into consideration in determining sentence shall not exceed such sum as is for the time being specified by an order made by the Secretary of State.

(7)The power to make an order under subsection (6) above shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.]]

Textual Amendments

F116S. 71 substituted for ss. 71-73 by Armed Forces Act 1971 (c. 33), ss. 36, 78(4)

F118S. 71(1)(a) repealed (11.5.2001) by 2001 c. 19, s. 38, Sch. 7 Pt. 4

F120S. 71(1)(bc) inserted (11.1.2001) by 2000 c. 43, s. 74, Sch. 7 para. 14; S.I. 2000/3302, art. 2(b)

F121Words in s. 71(1)(k) inserted (1.1.1992) by Armed Forces Act 1991 (c. 62, SIF 7:1), s. 7(1)(a); S.I. 1991/2719, art. 2 (with art. 3(1))

F123Words inserted (retrospectively) by Armed Forces Act 1986 (c. 21, SIF 7:1),s. 16(1), Sch. 1 para. 1(1)(a)

F124Words in s. 71(5) omitted (1.1.1999) by virtue of S.I. 1998/3086, reg. 3(1) (with transitional provisions in Sch.)

F125S. 71(5A)(5B) inserted (1.1.1999) by S.I. 1998/3086, reg. 3(2) (with transitional provisions in Sch.)

[F12771A Juveniles.U.K.

(1)A person under [F12818] years of age shall not be sentenced to imprisonment.

[F129(1A)Where—

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

(b)a person under that age is convicted of any civil offence to which [F130section 109 of the Powers of Criminal Courts (Sentencing) Act 2000] would apply and the court is not of the opinion mentioned in subsection (2) of that section,

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

[F131(1B)Where a person aged [F13218 years] or over but under 21 years of age is convicted of any other offence for which a person aged 21 years or over would be liable to imprisonment for life [F133then, subject to subsection (1E) below], the court shall sentence him to custody for life if—

F134(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

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

[F135(1D)Subject to subsections (3) and (4) below, the only custodial sentences that a court may award where a person under [F12818]] years of age is convicted or found guilty of an offence are—

(a)a custodial order under section 71AA of this Act or under paragraph 10 of Schedule 5A to this Act; and

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

(1E)A court may not—

(a)make a custodial order under section 71AA of this Act; or

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

unless it is satisfied—

(i)that the circumstances, including the nature and the gravity of the offence, are such that if the offender were aged [F12818] or over the court would pass a sentence of imprisonment; and

(ii)that he qualifies for a custodial sentence.

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

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

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

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

(2)

F136(3)A person convicted of murder [F137or any other offence the sentence for which is fixed by law as life imprisonment]who was under 18 years of age when the offence was committed shall not be sentenced to imprisonment for life F138. . .; but in lieu thereof the court shall (notwithstanding anything in this or any other Act) sentence him to be detained during Her Majesty’s pleasure, and if so sentenced he shall be liable to be detained in such place and under such conditions as the Secretary of State may direct.

(4)[F139In any case where—

(a)a person aged 14 or over but under [F13218 years] of age is]found guilty of a civil offence (other than one the sentence for which is fixed) which is punishable by a civil court in England or Wales on indictment by, in the case of [a person who has attained 18 years of age], a term of imprisonment for 14 years or more, [F139or

(b)a person under 14 years of age is found guilty of manslaughter, and, in either case, the court] is of opinion that none of the other methods in which the case may be legally dealt with is suitable, [F140the court may sentence that person] to be detained for suchperiod, not exceeding the maximum term of imprisonment with which the offence is punishable by such a civil court in the case of an adult, as may be specified in the sentence; and where such a sentence has been passed, the person on whom it is passed shall during that period be liable to be detained in such place and on such conditions as the Secretary of State may direct.

(5)A sentence of [F141[F141custody for life or]]detention under subsection (3) or (4) above shall be treated for the purposes of this Part of this Act as a punishment provided by this Act involving the same degree of punishment as a sentence of imprisonment; and section 71(3) and (4) above shall apply to such a sentence of detention [F141and to a sentence of custody for life] as they apply to a sentence of imprisonment.

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

[F142(7)A sentence of detention under section 71(1)(e) of this Act shall be treated for the purposes of this section as a non-custodial sentence and references in this section to a custodial sentence shall be construed accordingly.]

Textual Amendments

F128Words in s. 71A(1)(1D)(1E)(i) substituted (prosp.) by 2000 c. 43, ss. 74, 80, Sch. 7 para. 15(1)(a)

F129S. 71A(1A) substituted (1.10.1997) by 1997 c. 43, s. 55(2), Sch. 4 para. 1(2); S.I. 1997/2200, art. 2(1)(l)(2)(a) (subject to art. 5)

F130Words in s. 71A(1A)(b) substituted (25.8.2000) by 2000 c. 6, s. 165, Sch. 9 para. 9

F131S. 71A(1B)–(1C) inserted by Criminal Justice Act 1982 (c. 48, SIF 39:1),s. 58, Sch.8 para. 2(b)

F132Words in s. 71A(1B)(4)(a) substituted (1.10.1992 (E.W.)) by Criminal Justice Act 1991 (c. 53, SIF 39:1), ss. 71, 102(2), Sch. 9, para. 1; S.I. 1992/333, art. 2(2), Sch. 2

F133Words in s. 71A(1B) inserted (1.1.1992) by Armed Forces Act 1991 (c. 62, SIF 7:1), s. 2(2)(a); S.I. 1991/2719, art. 2 (with art. 3(1))

F135S. 71A(1D)(1E)(1F) inserted (1.1.1992) by Armed Forces Act 1991 (c. 62, SIF 7:1), s. 2(3); S.I. 1991/2719, art. 2 (with art. 3(1))

F137Words in s. 71A(3) inserted (30.11.2000 with effect as mentioned in Sch. 7 para. 15(2)) by 2000 c. 43, s. 74, Sch. 7 para. 15(1)(e)

F138Words in s. 71A(3) repealed (11.5.2001) by 2001 c. 19, s. 38 Sch. 7 Pt. 4

F139Words in s. 71A(4) substituted (1.1.1992) by Armed Forces Act 1991 (c. 62, SIF 7:1), s. 2(4)(a); S.I. 1991/2719, art. 2 (with art. 3(1))

Words in s. 71A(4) substituted (1.1.1992) by Armed Forces Act 1991 (c. 62, SIF 7:1), s. 2(4)(b); S.I. 1991/2719, art. 2 (with art. 3(1))

F140Words in s. 71A(4) inserted (1.1.1992) by Armed Forces Act 1991 (c. 62, SIF 7:1), s. 2(4)(c); S.I. 1991/2719, art. 2 (with art. 3(1))

[F14371AA Young service offenders: custodial orders.U.K.

(1)Where a person who has attained seventeen years of age but is under twenty-one years of age is found guilty by a court-martial of an offence punishable under this Act with imprisonment, the court shall have power, F144 . . ., to make an order (in this section referred to as a “custodial order") committing him to be detained in accordance with the provisions of this section for a [F145period to be specified in the order F146. . . [F147which—

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

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

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

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

F148(1A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F149(1AA)The court shall not make a custodial order committing an offender aged 17 to be detained for a period exceeding twelve months or for a period such that the continuous period for which he is committed to be detained under that order and any one or more other custodial orders exceeds twelve months.]

[F150(1B)For the purposes of determining whether [F151it is satisfied as mentioned in sub-paragraphs (i) and (ii) of subsection (1E) of section 71A of this Act with respect to any person] the court shall obtain and consider information about the circumstances, and shall take into account any information before the court which is relevant to his character and his physical and mental condition.]

(2)If a person is outside the United Kingdom at the time a custodial order is made in respect of him, he shall as soon as practicable F152 . . . be removed to the United Kingdom.

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

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

[F153(5)The following provisions of this Act shall apply in the case of a sentence under a custodial order as they apply in the case of a sentence of imprisonment, that is to say—

(a)sections 71(3) and (4), 118(1), 118A(1) and (3) 119A(3) and 145; and

(b)for the period before a person sentenced under a custodial order is received into the institution where he is to be detained (or for the currency of the sentence if its term ends before he is so received), sections 119(2), (4) and (5), 122, 123, 129, 142 and 190B;

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

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

[F154(a)where the offender is in or removed to England or Wales, any institution in which a person sentenced to detention in a young offender institution could be detained, [F155section 98 of the Powers of Criminal Courts (Sentencing) Act 2000] having effect in relation to the offender as it has effect in relation to an offender sentenced to detention in a young offender institution;]

[F156(b)where the offender is in or removed to Scotland, a young offenders institution;]

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

[F157(6A)[F158Sections 16 and 17 of the Crime (Sentences) Act 1997 (as modified by section 19 of that Act)](release of young offenders) shall apply to persons released from a term of detention under a custodial order as it applies to persons released from a term of detention under a detention centre order or a term of youth custody.]

F159(6B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7)This section does not apply to offenders who are civilians (as regards whom similar provision is made by paragraph 10 of Schedule 5A to this Act)]

Textual Amendments

F144Words in s. 71AA(1) (which were substituted by Criminal justice Act 1982 (c. 48, SIF 39:1), s. 58, Sch. 8 para. 3(a)) repealed (1.10.1992 (E.W.)) by Criminal Justice Act 1991 (c. 53, SIF 39:1), ss. 71, 101(2), 102(2), Sch. 9, para. 2(b), Sch. 13 ; S.I. 1992/333; art. 2(2), Sch. 2; and repealed (1.1.1992) by Armed Forces Act 1991 (c. 62, SIF 7:1), ss. 3(1), 26(2), Sch. 3; S.I. 1991/2719, art. 2, Sch. (with art. 3(1))

F151Words in s. 71AA(1B) substituted (1.1.1992) by Armed Forces Act 1991 (c. 62, SIF 7:1), s. 3(3); S.I. 1991/2719, art. 2 (with art. 3(1))

F155Words in s. 71AA(6)(a) substituted (25.8.2000) by 2000 c. 6, ss. 165, 168(1), Sch. 9 para. 10

F156S. 71AA(6)(b) substituted (S.) by Criminal Justice Act 1988 (c. 33, SIF 39:1), s. 124(4),Sch. 9 para. 2(a)

F158Words in s. 71AA(6A) substituted (1.10.1997) by 1997 c. 43, s. 55(2), Sch. 4 para. 1(3); S.I. 1997/2200, art. 2(1)(l)(2)(a) (subject to art. 5)

F159S. 71AA(6B) repealed (1.10.1993) by 1993 c. 9, s. 47(3), Sch. 7 Pt. I; S.I. 1993/2050, art. 3(4)

[71ABF160Reasons to be given where custodial sentence awarded to young offender.U.K.

(1)This section applies where a court—

(a)makes a custodial order under section 71AA of this Act, or

(b)passes a sentence of custody for life under section 71A(1B) of this Act.

(2)It shall be the duty of the court—

(a)to state in open court and to record in the proceedings that it is satisfied that the offender qualifies for a custodial sentence under one or more of the paragraphs of subsection (1F) of section 71A of this Act, the paragraph or paragraphs in question, and why it is so satisfied; and

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

(3)Where a court makes a custodial order and, in accordance with its duty under subsection (2) above, makes the statement required by paragraph (a) of that subsection, the matters stated shall be specified in the order (made under Imprisonment and Detention Rules) pursuant to which the offender is committed into custody.]

Textual Amendments

[F16171B Power to impose imprisonment for default in payment of fines.U.K.

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

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

(b)who is already serving or otherwise liable to serve a term of imprisonment, [F162or

(c)in respect of whom the court makes an order under section 71AA above on the same occasion for the sameor another offence, or

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

it may make an order fixing a further consecutive term of imprisonment [F163or detention] which the said person is to undergo if any part of the fine is not dulypaid or recovered on or before the date on which he could otherwise be released.

[F164(2)Subject to subsections (4) and (5) below, the Table in [F165section 139(4) of the Powers of Criminal Courts (Sentencing) Act 2000] (maximum periods of imprisonment for default inpayment of fines etc.), as [F166for the time being in force] , shall have effect for the purpose of determining the maximum periods of further imprisonment or detention that may be specified under subsection (1) abovefor fines of the amounts set out in that Table.]

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

(4)Where part of the said amount is paid or recovered in the prescribed manner, the period of the furtherterm of imprisonment [F167or detention] specified under subsection (1) above shall be reduced by such number of days as bears to the totalnumber of days in that period less one day the same proportion as the amount so paid or recovered bears tothe amount of the said fine.

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

[F168(5A)An order imposing a term of detention under this section shall be given effect as if it were a custodialorder under section 71AA above.]

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

Textual Amendments

F162S. 71B(1)(c)(d) and word “or" immediately preceding it inserted by Criminal JusticeAct 1982 (c. 48, SIF 39:1), s. 58, Sch. 8 para. 4(1)(a)

F165Words in s. 71B(2) substituted (25.8.2000) by 2000 c. 6, ss. 165, 168(1), Sch. 9 para. 11

ArrestU.K.

74 Power to arrest offenders.U.K.

(1)Any person subject to military law found committing an offence against any provision of this Act, oralleged to have committed or reasonably suspected of having committed any such offence, may be arrested inaccordance with the following provisions of this section.

(2)An officer may be arrested by an officer of the regular forces of superior rank, or, if engaged in aquarrel or disorder, by such an officer of any rank.

(3)A warrant officer, non-commissioned officer or soldier may be arrested by any officer, warrant officeror non-commissioned officer of the regular forces:

Provided that a person shall not be arrested by virtue of this subsection except by a person ofsuperior rank.

(4)A provost officer, or any officer, warrant officer F169 non-commissioned officer [F170or rating] legally exercising authority under a provost officer or on his behalf, may arrest any officer, warrantofficer, non-commissioned officer or soldier:

Provided that an officer shall not be arrested by virtue of this subsection except on the order ofanother officer.

(5)The power of arrest given to any person by this section may (subject to the provisions of Queen’sRegulations) be exercised either personally or by ordering into arrest the person to be arrested or bygiving orders for that person’s arrest.

Textual Amendments

[F171 CustodyU.K.

Textual Amendments

F171S. 75-75E and the preceding cross heading substituted (2.10.2000) for s. 75 by 2000 c. 4, s. 1(1); S.I. 2000/2366, art. 2

F17275 Limitations on custody without charge.U.K.

(1)A person arrested under section 74 of this Act shall not be kept in military custody without being charged except in accordance with sections 75A to 75C of this Act.

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

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

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

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

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

(4)For the purposes of this section and sections 75A to 75K of this Act a person is to be treated as charged with an offence when he is informed in accordance with regulations of the Defence Council that a charge is to be reported to his commanding officer under section 76(1) of this Act.]

Textual Amendments

F172Ss. 75-75E and the preceding cross-heading substituted (2.10.2000) for s. 75 by 2000 c. 4, s. 1(1); S.I. 2000/2366, art. 2

F17375A Authorisation of custody without charge.U.K.

(1)Where a person is arrested under section 74 of this Act—

(a)the arrest, and

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

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

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

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

(b)to obtain such evidence by questioning him.

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

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

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

and the person to whom the report relates may be kept in military 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 military custody without being charged is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning him, and

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

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

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

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

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

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

(6)A person shall not be kept in military custody later than 48 hours after the relevant time without being charged except in accordance with section 75C of this Act.

(7)In this Act “the relevant time” in relation to a person arrested under section 74 of this Act means the time of the arrest.

Textual Amendments

F173Ss. 75-75E and the preceding cross-heading substituted (2.10.2000) for s. 75 by 2000 c. 4, s. 1(1); S.I. 2000/2366, art. 2

Modifications etc. (not altering text)

C33S. 75A(1)(3)(5)(6) modified (2.10.2000) by S.I. 2000/2366, arts. 2, 3, Sch. para. 2

F17475B Review of custody by commanding officer.U.K.

(1)The commanding officer of a person kept in military custody in accordance with section 75A of this Act shall, subject to subsection (3) below, review the keeping of that person in military custody not later than the end of the period for which it is authorised.

(2)Subsections (4) and (5) of section 75A of this Act shall apply on each review under this section as they apply where a report is received under subsection (1) of that section.

(3)A review may be postponed—

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

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

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

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

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

(a)it shall be carried out as soon as practicable after the expiry of the last authorisation under section 75A(4) of this Act, and

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

Textual Amendments

F174S. 75-75E and the preceding cross-heading substituted (2.10.2000) for s. 75 by 2000 c. 4, s. 1(1); S.I. 2000/2366, art. 2

F17575C Extension of custody without charge.U.K.

(1)If, on an application by the commanding officer of a person arrested under section 74 of this Act, a judicial officer is satisfied that there are reasonable grounds for believing that the continued keeping of that person in military custody is justified, the judicial officer may by order authorise the keeping of that person in military custody.

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

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

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

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

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

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

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

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

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

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

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

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

(6)Where subsection (5)(b) above applies, an authorisation on a review under section 75B of this Act may be for a period ending more than 48 hours after the relevant time, but may not be—

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

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

(7)If—

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

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

the judicial officer shall refuse the application.

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

(a)refuse the application, or

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

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

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

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

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

Textual Amendments

F175S. 75-75E and the preceding cross-heading substituted (2.10.2000) for s. 75 by 2000 c. 4, s. 1(1); S.I. 2000/2366, art. 2

F17675D Custody without charge: other cases.U.K.

(1)Sections 75 to 75C of this Act apply—

(a)where a person is delivered into military custody under section 187(2) or (3), 188(2) or 190A(3) of this Act or under Schedule 2 to the M18Reserve Forces Act 1996, and

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

as they apply where a person is arrested under section 74 of this Act, subject to such modifications as the Secretary of State may by regulations made by statutory instrument prescribe.

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

(a)in relation to a person delivered into military custody following arrest under section 186 or 190A of this Act or paragraph 2 of Schedule 2 to the 1996 Act or otherwise following arrest by a constable, references to the time of the arrest;

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

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

Textual Amendments

F176S. 75-75E and the preceding cross-heading substituted (2.10.2000) for s. 75 by 2000 c. 4, s. 1(1); S.I. 2000/2366, art. 2

Marginal Citations

F17775E Custody without charge: supplementary.U.K.

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

(a)the delegation by the commanding officer of a person in military custody of any of the commanding officer’s functions under sections 75 to 75C of this Act;

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

(c)the keeping of written records relating to compliance with any requirement of sections 75 to 75C of this Act or of regulations under paragraph (b) above.

(2)Any reference in sections 75A to 75C of this Act to a period of time is to be treated as approximate only.

Textual Amendments

F177S. 75-75E and the preceding cross-heading substituted (2.10.2000) for s. 75 by 2000 c. 4, s. 1(1); S.I. 2000/2366, art. 2

[F17875F Custody after charge.U.K.

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

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

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

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

(ii)commit an offence while released, or

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

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

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

(d)the accused, having been released from military custody after being charged with the offence, has deserted or absented himself without leave.

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

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

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

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

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

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

(4)If—

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

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

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

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

(5)Subsection (4) above applies to any offence under section 70 of this Act where the corresponding civil offence is—

(a)murder;

(b)manslaughter;

(c)rape;

(d)attempted murder; or

(e)attempted rape.

(6)The period for which a judicial officer may, by an order under subsection (2) above, authorise the keeping of the accused in military custody shall be such period, ending (subject to section 75G(7) of this Act) not later than 8 days after the day on which the order is made, as he thinks fit having regard to the evidence before him.

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

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

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

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

Textual Amendments

F178S. 75F inserted (2.10.2000) by 2000 c. 4, s. 2(1); S.I. 2000/2366, art. 2

[F17975G Review of custody after charge.U.K.

(1)Where the keeping of the accused in military custody is authorised by an order under section 75F(2) of this Act, it shall be reviewed by a judicial officer not later than the end of the period for which it is authorised.

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

(a)release the accused from military custody, or

(b)request a review.

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

(4)Subsections (2) to (6) of section 75F of this Act apply on a review as they apply where the accused is brought before a judicial officer under subsection (1) of that section.

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

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

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

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

Textual Amendments

F179S. 75G inserted (2.10.2000) by 2000 c. 4, s. 3(1); S.I. 2000/2366, art. 2

[F18075H Custody during court-martial proceedings.U.K.

(1)Where the accused is kept in military custody under an order under section 75F(2) of this Act at any time after the commencement of his trial by court-martial, section 75G of this Act (and section 75F as applied by that section) shall apply with the following modifications.

(2)In relation to a review before the announcement of the court-martial’s finding on the charge or every charge against the accused, references to a judicial officer shall have effect as references to the judge advocate.

(3)In section 75F(2), after paragraph (d) there shall be inserted— “;or

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

(4)Section 75F(3)(d) does not apply in the case of an accused who is awaiting sentence.

(5)An order under section 75F(2) does not authorise the keeping of the accused in military custody after he is sentenced by the court-martial.

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

Textual Amendments

F180S. 75H inserted (2.10.2000) by 2000 c. 4, s. 4(1); S.I. 2000/2366, art. 2

[F18175J Release from custody after charge or during proceedings.U.K.

(1)This section applies where, at a hearing under section 75F(1) of this Act or on a review under section 75G(1) of this Act, the judicial officer or judge advocate (as the case may be) does not authorise keeping the accused in military custody.

(2)Where this section applies, the accused—

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

(b)if he is subject to military law only by virtue of section 131 or 205(1)(ea), (eb), (g) or (h) of this Act, may be required to comply, before release or later, with such requirements as appear to the judicial officer or judge advocate (as the case may be) to be necessary for the purpose of securing his attendance at any hearing in connection with the offence to which the charge relates.

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

(4)A person guilty of an offence under this section shall be liable on conviction by court-martial to imprisonment for a term not exceeding two years or any less punishment provided by this Act.]

Textual Amendments

F181S. 75J inserted (2.10.2000) by 2000 c. 4, s. 5(1); S.I. 2000/2366, art. 2

[F18275K Arrest during proceedings.U.K.

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

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

(b)is not in military custody,

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

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

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

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

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

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

(b)commit an offence,

(c)injure himself, or

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

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

(a)the accused is subject to military law only by virtue of section 131 of this Act, and

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

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

(a)shall be treated as being in military custody under an order under section 75F(2) of this Act, and

(b)shall be brought as soon as practicable before a judicial officer to be dealt with as on a review under section 75G(1) of this Act.

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

(a)shall be treated as being in military custody under an order under section 75F(2) of this Act, and

(b)shall be brought as soon as practicable before the judge advocate on whose direction the arrest was made (unless already before him), and shall be dealt with by him as on a review under section 75G(1) of this Act.]

Textual Amendments

F182S. 75K inserted (2.10.2000) by 2000 c. 4, s. 6(1); S.I. 2000/2366, art. 2

Modifications etc. (not altering text)

C34S. 75K(1)(7) modifed (2.10.2000) by S.I. 2000/2366, arts. 2, 3, Sch. para. 5

[F18375L Judicial officers.U.K.

(1)Judicial officers shall be appointed for the purposes of this Act by the Judge Advocate General.

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

(a)he is qualified under section 84B(2) of this Act for appointment as the judge advocate in relation to a court-martial, F184. . .

(b)he has, and has had for at least five years, in any Commonwealth country or any colony rights and duties similar to those of a barrister or solicitor in England and Wales, and is subject to punishment or disability for breach of professional rules [F185or

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

[F186(3)In subsection (2)(c), “relevant judicial appointment”, in relation to a Commonwealth country or colony, means an appointment by virtue of which he is capable of exercising, in criminal proceedings in that country or colony, functions similar to the functions exercisable, in criminal proceedings in England and Wales, by a judge of the Supreme Court, a Circuit judge or a District Judge (Magistrates’ Courts).]]

Textual Amendments

F183S. 75L inserted (2.10.2000) by 2000 c. 4, s. 7(1); S.I. 2000/2366, art. 2

F184Word in s. 75L(2)(a) repealed (1.10.2001) by 2001 c. 19, ss. 34, 38, Sch. 6 Pt. 6 para. 35(2), Sch. 7 Pt. 7; S.I. 2001/3234, art. 2

F185S. 75L(2)(c) and word inserted (1.10.2001) by 2001 c. 19, s. 34, Sch. 6 Pt. 6 para. 35(2); S.I. 2001/3234, art. 2

F186S. 75L(3) inserted (1.10.2001) by 2001 c. 19, s. 34, Sch. 6 Pt. 6 para. 35(3); S.I. 2001/3234, art. 2

[F18775M Custody rules.U.K.

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

(a)on an application under section 75C of this Act;

(b)under section 75F(1) of this Act;

(c)on a review under section 75G(1) of this Act.

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

(a)arrangements preliminary to the proceedings;

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

(c)the admissibility of evidence;

(d)procuring the attendance of witnesses;

(e)the immunities and privileges of witnesses;

(f)the administration of oaths;

(g)circumstances in which a review under section 75G(1) of this Act may be carried out without a hearing;

(h)the use for the purposes of the proceedings of live television links or similar arrangements, including the use of such a link or other arrangement as a means of satisfying the requirement of section 75C(2)(b), 75F(1) or 75K(7)(b) or (8)(b) of this Act for a person to be brought before a judicial officer or judge advocate;

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

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

Textual Amendments

F187S. 75M inserted (2.10.2000) by 2000 c. 4, s. 8(1); S.I. 2000/2366, art. 2

Modifications etc. (not altering text)

C35S. 75M modified (2.10.2000) by S.I. 2000/2366, arts. 2, 3, Sch. para. 5

Investigation of, and summary dealing with, chargesU.K.

[F18876 Investigation of charges by commanding officerU.K.

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

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

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

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

(5)After investigating a charge the commanding officer may, subject to subsection (6) below—

(a)dismiss the charge;

(b)refer the charge to higher authority; or

(c)deal summarily with the charge.

(6)The commanding officer may not deal summarily with a charge if—

(a)the accused is an officer or warrant officer; or

(b)the charge is not capable of being dealt with summarily.

(7)This section has effect subject to any power of the commanding officer under section 103A(1) below to direct that the charge be tried by a field general court-martial.]

Textual Amendments

F188Ss. 76, 76A-76C substituted (1.4.1997 subject to art. 3 of the commencing S.I.) for s. 76 by 1996 c. 46, s. 5, Sch. 1 Pt. I para. 2; S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

[F18976A Powers of higher authority.U.K.

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

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

(3)If the charge is against a non-commissioned officer or soldier and is capable of being dealt with summarily, the higher authority may refer it back to the commanding officer of the accused to be so dealt with.

(4)If the charge is against an officer below the rank of [F190colonel]or a warrant officer and is capable of being dealt with summarily, the higher authority may refer it to the appropriate superior authority to be so dealt with.

(5)If the charge has been referred to the higher authority as a result of an election for court-martial trial, and that election has not been withdrawn with leave, he may not refer the charge back to the commanding officer of the accused, or (as the case may be) to the appropriate superior authority, to be dealt with summarily.

(6)This section has effect subject to any power of the higher authority under section 103A(1) below to direct that the charge be tried by a field general court-martial.]

Textual Amendments

F189Ss. 76, 76A-76C substituted (1.4.1997 subject to art. 3 of three commencing S.I.) for s. 76 by 1996 c. 46, s. 5, Sch. 1 Pt. I para. 2; S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F190Word in s. 76A(4) substituted (28.2.2002) by 2001 c. 19, s. 17, Sch. 1 para. 1; S.I. 2002/345, art. 2 (subject to transitional provisions in art. 3)

[F19176AA Right to elect for court-martial trial.U.K.

(1)Before dealing summarily with a charge, the commanding officer or appropriate superior authority shall afford the accused the opportunity of electing court-martial trial in relation to that charge.

(2)Where in accordance with regulations under section 83 of this Act two or more charges are together to be dealt with summarily, any election for court-martial trial must relate to all the charges concerned.

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

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

(a)if the accused is an officer or warrant officer, refer the charge back to the appropriate superior authority;

(b)if the accused is a non-commissioned officer or soldier, refer the charge back to the commanding officer of the accused,

for the appropriate superior authority or commanding officer to deal summarily with the charge.

(5)Subsection (1) above does not enable the accused to make a further election for court-martial trial in relation to a charge which has been referred back to the appropriate superior authority or commanding officer under subsection (4) above.

(6)Where under section 76B(3) of this Act a charge is amended or one charge is substituted for another, subsection (1) above applies in relation to the amended or substituted charge.]

Textual Amendments

F191S. 76AA inserted (2.10.2000) by 2000 c. 4, s. 11(1); S.I. 2000/2366, art. 2

Modifications etc. (not altering text)

C36S. 76AA(1) amended (2.10.2000) by S.I. 2000/2366, arts. 2, 3, Sch. para. 8(2)

C37S. 76AA(1) modified (2.10.2000) by S.I. 2000/2366, arts. 2, 3, Sch. para. 8(1)(b)

[F19276B Summary dealings.U.K.

(1)This section applies where a charge is to be dealt with summarily by a commanding officer or appropriate superior authority.

(2)References in this Act to dealing summarily with a charge are references to the taking of the following action, namely, determining whether the charge is proved and, accordingly, either dismissing the charge or recording a finding that the charge has been proved and awarding punishment.

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

(4)If, before determining whether the charge is proved, he considers that it should not be dealt with summarily, the commanding officer or appropriate superior authority may refer the charge to higher authority.

F193(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F193(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7)[F194If the commanding officer or appropriate superior authority determines that the charge has been proved, he] shall record a finding that the charge has been proved and award punishment accordingly.

F193(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9)This section has effect subject to any power of the commanding officer or appropriate superior authority under section 103A(1) below to direct that the charge be tried by a field general court-martial.

(10)Nothing in this section or section 76A [F195or 76AA] above shall be taken to prevent an officer from acting as both higher authority and appropriate superior authority in relation to a charge.]

Textual Amendments

F192Ss. 76, 76A-76C substituted (1.4.1997 subject to art. 3 of the commencing S.I.) for s. 76 by 1996 c. 46, s. 5, Sch. 1 Pt. I para. 2; S.I. 1997/304, art. 2

F193S. 76B(5)(6)(8) repealed (2.10.2000) by 2000 c. 4, ss. 11(3)(a), 27, Sch. 4; S.I. 2000/2366, art. 2 (with Sch. para. 8(2))

F194Words in s. 76B(7) substituted (2.10.2000) by 2000 c. 4, s. 11(3)(b); S.I. 2000/2366, art. 2

F195Words in s. 76B(10) inserted (2.10.2000) by 2000 c. 4, s. 11(3)(c); S.I. 2000/2366, art. 2

[F19676C Punishments available on summary dealings.U.K.

(1)This section applies where a commanding officer or appropriate superior authority records a finding that a charge against an accused has been proved.

(2)The commanding officer may award one or more of the following punishments—

(a)if the offender is a soldier, detention for a period not exceeding 60 days;

(b)fine;

(c)if the offender is a non-commissioned officer, severe reprimand or reprimand;

(d)where the offence has occasioned any expense, loss or damage, stoppages;

(e)any minor punishment for the time being authorised by the Defence Council.

(3)The appropriate superior authority may award one or more of the following punishments—

(a)except in the case of a warrant officer, forfeiture of seniority for a specified term or otherwise;

(b)fine;

(c)severe reprimand or reprimand;

(d)where the offence has occasioned any expense, loss or damage, stoppages.

(4)The commanding officer may not award a fine or minor punishment for an offence for which he awards detention.

(5)The appropriate superior authority may not award a fine for an offence for which he awards forfeiture of seniority.

(6)Except in the case of an offence against section 70 of this Act, the amount of a fine shall not exceed the amount of the offender’s pay for twenty-eight days.

(7)In the case of an offence against section 70 of this Act where the corresponding civil offence is a summary offence, the amount of a fine shall not exceed—

(a)the amount of the offender’s pay for twenty-eight days; or

(b)(if less) the maximum amount of the fine which could be imposed by a civil court on summary conviction.

(8)In the case of an offence against section 70 of this Act where the corresponding civil offence is an indictable offence, the amount of a fine shall not exceed—

(a)the amount of the offender’s pay for twenty-eight days; or

(b)(if less) the maximum amount of the fine which could be imposed by a civil court on conviction on indictment.

[F197(9)For the purposes of subsections (6) to (8) above, a day’s pay shall be taken to be–

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

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

F197(9A)In subsection (9)(b) above “special member" and “ordinary member" have the same meaning as in the Reserve Forces Act 1996.]

(10)If the offender is a lance-corporal or lance-bombardier, the commanding officer may, if he awards no other punishment or no other punishment except stoppages, order the offender to be reduced to the ranks.

(11)If the offender is an acting warrant officer or non-commissioned officer, the commanding officer may, if he awards no other punishment or no other punishment except stoppages, order the offender—

(a)to revert to his permanent rank;

(b)to assume an acting rank lower than that held by him but higher than his permanent rank; or

(c)where his permanent rank is that of lance-corporal or lance-bombardier, to forfeit his acting rank and be reduced to the ranks.]

Textual Amendments

F196Ss. 76, 76A-76C substituted (1.4.1997 subject to art. 3 of the commencing S.I.) for s. 76 by 1996 c. 46, s. 5, Sch. 1 Pt. I para. 2; S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F197S. 76C(9)(9A) substituted (1.1.1999) for s. 76C(9) by S.I. 1998/3086, reg. 3(4)

F19877. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

Textual Amendments

F198S. 77 repealed (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, ss. 5, 35(2), Sch. 1 Pt. I para. 3, Sch. 7 Pt. I; S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F19977A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

Textual Amendments

F199S. 77A repealed (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, ss. 5, 35(2), Sch. 1 Pt. I para. 3, Sch. 7 Pt. I; S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F20078. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

Textual Amendments

F200S. 78 repealed (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, ss. 5, 35(2), Sch. 1 Pt. I para. 3, Sch. 7 Pt. I; S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F20179. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

Textual Amendments

F201S. 79 repealed (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, ss. 5, 35(2), Sch. 1 Pt. I para. 3, Sch. 7 Pt. I; S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F20280. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

Textual Amendments

F202S. 80 repealed (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, ss. 5, 35(2), Sch. 1 Pt. I para. 3, Sch. 7 Pt. I; S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

81 Confession of desertion by warrant officer, non-commissioned officer or soldier.U.K.

(1)Where in accordance with Queen’s Regulations a warrant officer, non-commissioned officer or soldiersigns a written confession that he has been guilty of desertion, his commanding officer may, notwithstandinganything in the foregoing provisions of this Part of this Act, submit the confession for the considerationof [F203the Defence Council] or such officer not below the rank of brigadier as may beprovided by Queen’s Regulations.

(2)After considering any such confession [F203the Defence Council] or such officer as aforesaid may direct that the offence shall not be tried by court-martial or dealtwith summarily by the appropriate superior authority or commanding officer, and if such a direction is giventhe period of his service as respects which he confesses to have been a deserter shall be forfeited.

(3)

F204(4)Subsections (2) to (7) of section seventeen of this Act shall apply in relation to the forfeiture ofservice by virtue of this section subject to the following modifications:—

(a)

F205(b)for references to the date on which the offender was convicted there shall be substituted referencesto the date on which the direction was given.

Textual Amendments

F203Words substituted by S.I. 1964/488, Sch. 1 Pt. I

F204Ss. 67, 75(3) and 81(3) repealed by Armed Forces Act 1971 (c. 33), s. 78(4), Sch. 4 Pt.I

Modifications etc. (not altering text)

C38S. 81(2) extended by Armed Forces Act 1981 (c. 55), s. 4(1)

82 Officers who are to act as commanding officers and appropriate superior authorities.U.K.

(1)In this Act the expression “commanding officer”, in relation to a person charged with [F206, or in custody in connection with,]an offence, means such officerhaving powers of command over that person as may be determined by or under regulations of [F207the Defence Council].

[F208(2)A person may act as appropriate superior authority in relation to a person charged with an offence if—

(a)he is a general officer, flag officer, air officer or [, brigadier or commodore], or

(b)where the Defence Council so direct, he is a colonel or a naval or air force officer of corresponding rank.]

(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F206Words in s. 82(1) inserted (2.10.2000) by 2000 c. 4, s. 10, Sch. 1 para. 2; S.I. 2000/2366, art. 2

F207Words substituted by S.I. 1964/488, Sch. 1 Pt. I

F208S. 82(2) substituted (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, s. 5, Sch. 1 Pt. I para. 4(2); S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

Modifications etc. (not altering text)

C39Words in s. 82(2)(a) substituted (28.2.2002) by 2001 c. 19, s. 17, Sch. 2 para. 2; S.I. 2002/345, art. 2 (subject to transitional provisions in art. 3)

[F20983 Regulations as to summary dealings etc.U.K.

(1)The Defence Council may make regulations with respect to the investigation of charges by commanding officers and summary dealings by commanding officers and appropriate superior authorities.

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

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

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

(c)the delegation by the commanding officer of any of his functions;

(d)the charges which are capable of being dealt with summarily;

(e)the amendment or substitution of charges;

(f)the procedure on summary dealings;

(g)limitations on the punishments which may be awarded on a summary dealing by a commanding officer or appropriate superior authority of a specified description;

[F210(gg)the procedure for making elections under section 118ZA(2) of this Act and withdrawing such elections;]

(h)the information to be provided to a person afforded an opportunity of electing court-martial trial;

(i)the procedure for electing court-martial trial, including any period within which any such election may be made;

(j)the procedure for requesting leave to withdraw an election for court-martial trial and for withdrawing any such election;

(k)who may act as the higher authority and the appropriate superior authority in specified descriptions of cases;

(l)who is to act as the higher authority and the appropriate superior authority in any particular case.

(3)A regulation under this section which is inconsistent with the provisions of this Act shall to the extent of the inconsistency be void.]

Textual Amendments

F209S. 83 substituted (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, s. 5, Sch. 1 Pt. I para. 5; S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F210S. 83(2)(gg) inserted (2.10.2000) by 2000 c. 4, s. 25, Sch. 3 para. 4; S.I. 2000/2366, art. 2 (with Sch. para. 13)

[F211 The summary appeal courtU.K.

Textual Amendments

F211S. 83ZA and the preceding cross-heading inserted (2.10.2000) by 2000 c. 4, s. 14(1); S.I. 2000/2366, art. 2 (with Sch. para. 13)

F21283ZA The summary appeal court.U.K.

(1)There shall be a court (in this Act referred to as “the summary appeal court") for the purpose of hearing appeals against findings recorded and punishments awarded by commanding officers and appropriate superior authorities on dealing summarily with charges.

(2)The court shall consist of—

(a)judge advocates appointed under section 83ZB of this Act, F213...

(b)officers qualified under section 83ZC of this Act to be members of the court[F214, and

(c)warrant officers qualified under an order made by virtue of section 20 of the Armed Forces Act 2001 to be members of the court.]

(3)The court—

(a)may sit in two or more divisions, and

(b)may sit in any place, whether within or outside the United Kingdom.

(4)There shall be a court administration officer for the court, who shall be an officer (or other person) appointed by the Defence Council.

(5)The court shall sit at such times and in such places as may be determined by the court administration officer.

(6)The court administration officer shall perform such other functions as may be prescribed by rules under section 83ZJ of this Act.

Textual Amendments

F212S. 83ZA and the preceding cross-heading inserted (2.10.2000) by 2000 c. 4, s. 14(1); S.I. 2000/2366, art. 2 (with Sch. para. 13)

[F21583ZB Judge advocates.U.K.

(1)Judge advocates in relation to the summary appeal court shall be appointed by the Judge Advocate General.

(2)No person shall be appointed under this section unless he is qualified under section 84B(2) of this Act for appointment as the judge advocate in relation to a court-martial.]

Textual Amendments

F215S. 83ZB inserted (2.10.2000) by 2000 c. 4, s. 15(1); S.I. 2000/2366, art. 2 (with Sch. para. 13)

[F21683ZC Officers qualified for membership of summary appeal court.U.K.

(1)Subject to subsections (2) and (3) below, an officer is qualified under this section for membership of the summary appeal court if he is a military officer who has held a commission in any of Her Majesty’s naval, military, or air forces for a period of not less than two years or periods amounting in the aggregate to not less than two years.

(2)Subject to subsection (3) below, rules under section 83ZJ of this Act may specify circumstances in which any other military officer or a naval or air-force officer is qualified under this section for membership of the court.

(3)The following are not qualified under this section for membership of the court—

(a)the court administration officer,

(b)an officer under the command of the court administration officer,

(c)the prosecuting authority,

(d)any person who has a general qualification within the meaning of section 71 of the Courts and Legal Services Act 1990,

(e)an advocate in Scotland or a solicitor who has a right of audience in the Court of Session or the High Court of Justiciary,

(f)a member of the Bar of Northern Ireland,

(g)a person who has in any Commonwealth country rights and duties similar to those of a barrister or solicitor in England and Wales, and is subject to punishment or disability for breach of professional rules, or

(h)any person who is, or has at any time during the preceding five years been, a provost officer.

(4)In this section—

  • air-force officer” means an officer belonging to Her Majesty’s air forces and subject to air-force law;

  • military officer” means an officer belonging to Her Majesty’s military forces and subject to military law; and

  • naval officer” means an officer belonging to Her Majesty’s naval forces and subject to theNaval Discipline Act 1957.]

Textual Amendments

F216S. 83ZC inserted (2.10.2000) by 2000 c. 4, s. 16(1); S.I. 2000/2366, art. 2 (with Sch. para. 13)

[F21783ZD Constitution of summary appeal court for appeals.U.K.

(1)For the purpose of hearing an appeal, the summary appeal court shall consist of—

(a)one of the judge advocates appointed under section 83ZB of this Act, and

[F218(b)an officer qualified under section 83ZC of this Act for membership of the court, and]

[F218(c)a third person who is either—

(i)an officer qualified under that section, or

(ii)a warrant officer qualified under an order made by virtue of section 20 of the Armed Forces Act 2001,

for membership of the court.]

(2)Subsection (1) above has effect subject to any provision made by virtue of section 83ZJ of this Act [F219or section 20 of the Armed Forces Act 2001 (eligibility of warrant officers to be members of summary appeal courts)] .

(3)The judge advocate for any appeal shall be specified by or on behalf of the Judge Advocate General.

(4)The other members of the court for any appeal shall be specified by or on behalf of the court administration officer.]

Textual Amendments

F217S. 83ZD inserted (2.10.2000) by 2000 c. 4, s. 17(1); S.I. 2000/2366, art. 2 (with Sch. para. 13)

F218S. 83ZD(1)(b)(c) substituted for s. 83ZD(1)(b) (19.8.2004) by The Summary Appeal Courts (Warrant Officers) Order 2004 (S.I. 2004/1937), arts. 1, 5(3)(a)

[F22083ZE Right of appeal.U.K.

(1)Any person in respect of whom—

(a)a charge has been dealt with 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 any punishment awarded (or against both).

(2)Subject to subsection (3) below, any appeal must be brought within the period of fourteen days beginning with the date on which the punishment was awarded (“the initial period”) or within such longer period as the court may (before the end of the initial period) allow.

(3)The court may at any later time give leave for an appeal to be brought.

(4)On any appeal under this section, the respondent shall be the prosecuting authority.]

Textual Amendments

F220S. 83ZE inserted (2.10.2000) by 2000 c. 4, s. 18(1); S.I. 2000/2366, art. 2 (with Sch. para. 13)

[F22183ZF Hearing of appeals.U.K.

(1)An appeal under section 83ZE of this Act against a finding shall be by way of a rehearing of the charge.

(2)An appeal under section 83ZE of this Act which relates only to the punishment awarded shall be by way of a rehearing in relation to the award of punishment.

(3)Except in such cases as may be prescribed by rules under section 83ZJ of this Act, appeals shall be heard in open court.

(4)Proceedings of the summary appeal court shall be conducted in accordance with the law of England and Wales.

(5)Rulings and directions on questions of law (including questions of procedure and practice) shall be given by the judge advocate.

(6)Any directions given by the judge advocate shall be binding on the court.]

Textual Amendments

F221S. 83ZF inserted (2.10.2000) by 2000 c. 4, s. 19(1); S.I. 2000/2366, art. 2 (with Sch. para. 13)

[F22283ZG Powers of summary appeal court.U.K.

(1)On an appeal against a finding that a charge has been proved, the summary appeal court—

(a)may confirm or quash the finding, or

(b)in a case where the commanding officer or appropriate superior authority could validly have recorded a finding that another charge had been proved, may substitute for the finding a finding that that other charge has been proved.

(2)Where the court quashes a finding—

(a)the court shall quash any punishment which relates only to that finding (or to that and one or more other findings which are also quashed), and

(b)the court may vary any punishment which relates both to that and one or more other findings so as to award any punishment which—

(i)it would have been within the powers of the commanding officer or appropriate superior authority to award, and

(ii)in the opinion of the court, is no more severe than the punishment originally awarded.

(3)Where, on an appeal against a finding that a charge has been proved, the court confirms the finding or substitutes for it a finding that another charge has been proved, the court may vary the punishment awarded by the commanding officer or appropriate superior authority so as to award any punishment which—

(a)it would have been within the powers of the commanding officer or appropriate superior authority to award, and

(b)in the opinion of the court, is no more severe than that originally awarded.

(4)On an appeal against the punishment awarded, the court—

(a)may confirm the punishment awarded by the commanding officer or appropriate superior authority, or

(b)may substitute any other punishment which—

(i)it would have been within the powers of the commanding officer or appropriate superior authority to award, and

(ii)in the opinion of the court, is no more severe than that originally awarded.

(5)Any punishment awarded by the court shall have effect as if awarded on the day on which the original punishment was awarded on dealing with the charge summarily.

(6)Any finding substituted or sentence awarded by the court shall be treated for all purposes as having been made or awarded by the officer who dealt summarily with the charge.]

Textual Amendments

F222S. 83ZG inserted (2.10.2000) by 2000 c. 4, s. 20(1); S.I. 2000/2366, art. 2 (with Sch. para. 13)

[F22383ZH Making of, and appeals from, decisions of court.U.K.

(1)Subject to section 83ZF(5) of this Act, any decision of the summary appeal court when constituted as mentioned in section 83ZD(1) of this Act shall be determined by a majority of the votes of the members of the court.

(2)The person who brought the appeal may question any judgment of the summary appeal court on the ground that it is wrong in law or is in excess of jurisdiction, by applying to the summary appeal court to have a case stated for the opinion of the High Court in England and Wales.]

Textual Amendments

F223S. 83ZH inserted (2.10.2000) by 2000 c. 4, s. 21(1); S.I. 2000/2366, art. 2 (with Sch. para. 13)

[F22483ZJ Rules of summary appeal court.U.K.

(1)The Secretary of State may make rules for the purpose of regulating the practice and procedure to be followed in the summary appeal court.

(2)Rules under this section may, in particular, make provision—

(a)as to the practice and procedure of the court in exercising functions preliminary to or incidental to the hearing of appeals under section 83ZE of this Act;

(b)as to the bringing and abandonment of appeals;

(c)as to the procedure for applying for leave under section 83ZE(2) or (3) of this Act;

(d)as to the procedure for applying for leave, or making a reference, under section 115(5A) or (5B) of this Act;

(e)as to consultation by the court administration officer with the Judge Advocate General before specifying where the court is to sit;

(f)as to circumstances in which the jurisdiction of the court may be exercised by a judge advocate appointed under section 83ZB of this Act sitting alone;

(g)enabling an uncontested appeal to be determined without a hearing;

(h)as to the convening and constitution of the court to hear any appeal;

(i)as to circumstances in which officers otherwise qualified under section 83ZC of this Act are ineligible to hear particular appeals;

(j)enabling the appellant to object to members of the court;

(k)as to the representation of the appellant on the hearing of appeals under section 83ZE of this Act and at any preliminary proceedings;

(l)as to the admissibility of evidence;

(m)as to the rehearing of an appeal where any member of the court originally constituted to hear it has been unable to continue hearing the appeal;

(n)as to procuring the attendance of witnesses at the hearing of appeals and at any preliminary proceedings;

(o)as to the administration of oaths;

(p)as to the recording of the proceedings of the court and custody of records of the proceedings;

(q)as to making copies of the records of proceedings available and as to the fees payable for such copies;

(r)as to the procedure for applying to have a case stated under section 83ZH(2) of this Act.

(3)Rules under this section may provide for any enactment which relates to the practice or procedure of courts-martial or to the admissibility of evidence in courts-martial to apply in relation to the court with such modifications as may be specified.

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

Textual Amendments

F224S. 83ZJ inserted (2.10.2000) by 2000 c. 4, s. 22(1); S.I. 2000/2366, art. 2 (with Sch. para. 13)

[F22583ZK Administration of oaths to members of summary appeal court.U.K.

(1)Every member of the summary appeal court shall, before first sitting as a member of the court, have administered to him by the prescribed person in the prescribed manner an oath in the prescribed form.

(2)In subsection (1) above “prescribed” means prescribed by the Secretary of State by order made by statutory instrument.

(3)An order made under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.]

Textual Amendments

F225S. 83ZK inserted (2.10.2000) by 2000 c. 4, s. 23(1); S.I. 2000/2366, art. 2 (with Sch. para. 13)

[F22683ZL Privileges of witnesses and others.U.K.

A witness before the summary appeal court or any other person whose duty it is to attend on or before the court shall be entitled to the same immunities and privileges as a witness before the High Court in England and Wales.]]

Textual Amendments

F226S. 83ZL inserted (2.10.2000) by 2000 c. 4, s. 24(1); S.I. 2000/2366, art. 2 (with Sch. para. 13)

[F227 The prosecuting authorityU.K.

Textual Amendments

F227Ss. 83A-83C and cross-heading inserted (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, s. 5, Sch. 1 Pt. II para. 14; S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F22883A The prosecuting authority.U.K.

(1)Her Majesty may appoint a qualified officer belonging to Her military forces to be the prosecuting authority for the Army; and in this Act “the prosecuting authority” means the officer so appointed.

(2)An officer shall not be qualified to be appointed as the prosecuting authority unless he is—

(a)a person who has a ten year general qualification within the meaning of section 71 of the M19Courts and Legal Services Act 1990;

(b)an advocate or solicitor in Scotland of at least ten years’ standing; or

(c)a member of the Bar of Northern Ireland, or a solicitor of the Supreme Court of Northern Ireland, of at least ten years’ standing.

Textual Amendments

F228S. 83A-83C and cross-heading inserted (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, s. 5, Sch. 1 Pt. II para. 14; S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

Marginal Citations

F22983B Functions of the prosecuting authority.U.K.

(1)This section applies where a case has been referred to the prosecuting authority.

(2)If the case has been referred to him as a result of an election for court-martial trial, and that election is withdrawn with leave, the prosecuting authority shall—

(a)if the accused is an officer or warrant officer, refer the case to the appropriate superior authority;

(b)if the accused is a non-commissioned officer or soldier, refer the case to the commanding officer of the accused,

for the appropriate superior authority or commanding officer [F230to deal summarily with the preliminary charge].

(3)In subsection (2) above “the preliminary charge” means the charge [F231which would have been dealt with summarily had the accused not elected court-martial trial].

(4)If the prosecuting authority considers that court-martial proceedings under this Act should be instituted, he shall—

(a)determine any charge to be preferred and (subject to [F232subsection (5) below and section 83BB of this Act)]) whether any such charge is to be tried by general court-martial or district court-martial; and

(b)[F233(subject to section 83BB of this Act)]prefer any charge so determined by him.

(5)The prosecuting authority shall not determine that a charge against an officer be tried by district court-martial.

(6)The prosecuting authority shall, in accordance with rules under section 103 of this Act, notify the commanding officer of the accused and a court administration officer of any charge preferred and the description of court-martial by which that charge is to be tried; and the commanding officer shall, in accordance with any such rules, inform the accused accordingly.

(7)The prosecuting authority shall have the conduct of any court-martial proceedings under this Act against the accused.

(8)Without prejudice to any other power of his in relation to the conduct of the proceedings, the prosecuting authority may, in accordance with rules under section 103 of this Act—

(a)amend, or substitute another charge or charges for, any charge preferred;

(b)prefer an additional charge, or additional charges, against the accused;

(c)discontinue proceedings on any charge.

(9)The powers mentioned in subsection (8)(a) above may be exercised in relation to an amended or substituted charge as well as in relation to any charge preferred by the prosecuting authority.

[F234(9A)If the case has been referred to the prosecuting authority as a result of an election for court-martial trial, the prosecuting authority may not—

(a)determine under subsection (4)(a) above that a charge different from that in respect of which the election was made is to be preferred, or

(b)exercise any power mentioned in subsection (8)(a) or (b) above in relation to any charge against the accused before the commencement of the trial,

unless the accused has given his written consent or the charge is being referred under section 83BB of this Act.]

(10)The prosecuting authority may not exercise any power mentioned in subsection (8)(a) or (c) above in relation to any charge against the accused after the commencement of the trial of that charge unless the court-martial gives him leave to do so.

(11)If, before the commencement of the trial of a charge against the accused (“the original charge"), the prosecuting authority exercises the power mentioned in subsection (8)(b) above, he may, in accordance with rules under section 103 of this Act, direct any additional charge to be tried by the court-martial convened to try the original charge; and where he does so, subsection (6) above shall apply with such exceptions and modifications as may be prescribed.

(12)The prosecuting authority may not exercise the power mentioned in subsection (8)(b) above after the commencement of the trial of a charge against the accused unless the court-martial gives him leave to do so; and where the prosecuting authority exercises that power with the leave of the court-martial, the court may try any additional charge preferred.

[F235(13)If the prosecuting authority—

(a)decides not to prefer any charge referred to him, or

(b)before the commencement of the trial of any charge preferred by him, discontinues proceedings on that charge,

he may direct that, for the purposes of section 134 of this Act, the accused is to be deemed to have been tried by court-martial for the offence charged.]

(14)If, after the commencement of the trial of any charge, the prosecuting authority discontinues proceedings on that charge, the court-martial may give a direction such as is mentioned in subsection (13) above.

Textual Amendments

F229Ss. 83A-83C and cross-heading inserted (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, s. 5, Sch. 1 Pt. II para. 14; S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F230Words in s. 83B(2) substituted (2.10.2000) by 2000 c. 4, s. 13, Sch. 2 para. 1(1); S.I. 2000/2366, art. 2 (with Sch. para. 8(3))

F231Words in s. 83B(3) substituted (2.10.2000) by 2000 c. 4, s. 13, Sch. 2 para. 1(2); S.I. 2000/2366, art. 2 (with Sch. para. 8(3))

F232Words in s. 83B(4)(a) substituted (2.10.2000) by virtue of 2000 c. 4, s. 13, Sch. 2 para. 1(3)(a); S.I. 2000/2366, art. 2

F233Words in s. 83B(4)(b) inserted (2.10.2000) by 2000 c. 4, s. 13, Sch. 2 para. 1(3)(b); S.I. 2000/2366, art. 2

F234S. 83B(9A) inserted (2.10.2000) by 2000 c. 4, s. 13, Sch. 2 para. 1(4); S.I. 2000/2366, art. 2 (with Sch. para. 10)

F235S. 83B(13) substituted (2.10.2000) by 2000 c. 4, s. 13, Sch. 2 para. 1(5); S.I. 2000/2366, art. 2

Modifications etc. (not altering text)

C40S. 83B(2) modified (2.10.2000) by S.I. 1997/169, rule 4A (as inserted (2.10.2000) by S.I. 2000/2374, rule 2(4))

[F23683BB Cases where charge may be referred back to commanding officer.U.K.

(1)Where—

(a)a case has been referred to the prosecuting authority as a result of an election for court-martial trial, and

(b)the prosecuting authority considers that a charge different from, or additional to, the preliminary charge should be preferred,

the prosecuting authority may refer back to the commanding officer of the accused the charge or charges which the prosecuting authority considers should be preferred.

(2)In subsection (1) above—

(a)the preliminary charge” means the charge which would have been dealt with summarily had the accused not elected court-martial trial, and

(b)the reference to preferring a charge different from, or additional to, the preliminary charge includes a reference to amending, or substituting another charge for, a charge already preferred.

[F237(2A)Where—

(a)a case has been referred to the prosecuting authority otherwise than as a result of an election for court-martial trial,

(b)the prosecuting authority—

(i)in respect of the case or part of the case, does not determine any charge to be preferred, or

(ii)before the commencement of the trial of any charge preferred, discontinues proceedings on that charge, and

(c)the accused is below the rank of colonel,

the prosecuting authority may refer the case, or the part concerned, back to the commanding officer of the accused.]

(3)Where a charge is referred to a commanding officer under subsection (1) [F238or (2A)]above, the commanding officer shall deal with the charge as if it had been reported to him under section 76(1) of this Act.]

Textual Amendments

F236S. 83BB inserted (2.10.2000) by 2000 c. 4, s. 13, Sch. 2 para. 3; S.I. 2000/2366, art. 2

F237S. 83BB(2A) inserted (28.2.2002) by 2001 c. 19, s. 17, Sch. 1 para. 3(2); S.I. 2002/345, art. 2 (subject to transitional provisions in art. 3)

F238Word in s. 83BB(3) inserted (28.2.2002) by 2001 c. 19, s. 17, Sch. 1 para. 3(3); S.I. 2002/345, art. 2 (subject to transitional provisions in art. 3)

Modifications etc. (not altering text)

C41S. 83BB(1) modified (2.10.2000) by S.I. 1997/169, rules 6A, 13A (as inserted (2.10.2000) by S.I. 2000/2374, rule 2(5)(6))

[F23983BC Power of prosecuting authority to advise police forcesU.K.

(1)The prosecuting authority may give advice to police forces on all matters relating to offences under this Act (including offences under the Reserve Forces Act 1996 which by virtue of subsection (1) of section 103 of that Act are treated for the purposes mentioned in that subsection as being offences under this Act).

(2)In this section “police force” means any of the following—

(a)the Royal Military Police;

(b)the Royal Navy Regulating Branch;

(c)the Royal Air Force Police;

(d)the Ministry of Defence Police;

(e)any police force maintained under section 2 of the Police Act 1996 (police forces in England and Wales outside London);

(f)the metropolitan police force;

(g)the City of London police force;

(h)any police force maintained under or by virtue of section 1 of the Police (Scotland) Act 1967;

(i)the Police Service of Northern Ireland;

(j)the British Transport Police;

(k)the National Crime Squad.]

Textual Amendments

F239S. 83BC inserted (28.2.2002) by 2001 c. 19, s. 17, Sch. 1 para. 4; S.I. 2002/345, art. 2 (subject to transitional provisions in art. 3)

F24083C Prosecuting officers.U.K.

(1)The prosecuting authority may delegate any of his functions to officers appointed by him as prosecuting officers.

(2)An officer shall not be appointed as a prosecuting officer unless he is—

(a)a person who has a general qualification within the meaning of section 71 of the M20Courts and Legal Services Act 1990;

(b)an advocate or solicitor in Scotland; or

(c)a member of the Bar of Northern Ireland or a solicitor of the Supreme Court of Northern Ireland.]

Textual Amendments

F240Ss. 83A-83C and cross-heading inserted (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, s. 5, Sch. 1 Pt. II para. 14; S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

Marginal Citations

Courts-martial: general provisionsU.K.

F24184. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

Textual Amendments

F241S. 84 repealed (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, ss. 5, 35(2), Sch. 1 Pt. III para. 18, Sch. 7 Pt. I; S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

[F24284A Court administration officers.U.K.

In this Act—

  • court administration officer” means an officer (or other person) appointed by the Defence Council to convene general and district courts-martial and perform such other functions as may be prescribed; and

  • the court administration officer”, in relation to a court-martial, means the court administration officer who convened the court-martial and includes his successor or any person for the time being exercising his or his successor’s functions.]

Textual Amendments

F242S. 84A-84D inserted (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 19; S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F24384B Judge advocates.U.K.

(1)In this Act “the judge advocate”, in relation to a court-martial, means the judge advocate appointed by or on behalf of the Judge Advocate General to be a member of the court-martial.

(2)No person shall be appointed as the judge advocate unless he is—

(a)a person who has a five year general qualification within the meaning of section 71 of the M21Courts and Legal Services Act 1990;

(b)an advocate in Scotland of at least five years’ standing or a solicitor who has had a right of audience in the Court of Session or the High Court of Justiciary for at least five years; or

(c)a member of the Bar of Northern Ireland of at least five years’ standing.

(3)Rulings and directions on questions of law (including questions of procedure and practice) shall be given by the judge advocate.

(4)Any directions given by the judge advocate shall be binding on the court.

Textual Amendments

F243S. 84A-84D inserted (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 19; S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

Marginal Citations

F24484C Convening of general and district courts-martial.U.K.

(1)On being notified by the prosecuting authority of the charge preferred and the description of court-martial by which the charge is to be tried, a court administration officer shall by order convene a court-martial of that description.

(2)The order convening the court-martial shall specify—

(a)the date, time and place at which the court-martial is to sit;

(b)the officers who are to be members of the court-martial;

(c)which of those officers is to be president of the court-martial;

[F245(cc)any warrant officers who are to be members of the court-martial;]

(d)any other officers [F246or warrant officers] appointed for the purpose of filling vacancies,

and shall state that a judge advocate appointed by or on behalf of the Judge Advocate General is to be a member of the court-martial.

(3)At any time before the commencement of the trial, the court administration officer may, in accordance with rules under section 103 of this Act, amend or withdraw the order convening the court-martial.

(4)The following shall not be eligible to be members of a court-martial for the trial of a charge—

(a)the court administration officer;

(b)an officer who at any time between the date on which the preliminary charge was reported to the commanding officer of the accused and the date of the trial has been the commanding officer of the accused;

(c)the higher authority to whom the preliminary charge against the accused was referred;

(d)any other officer who has investigated the subject matter of the charge against the accused;

(e)any other officer [F247or warrant officer] who under this Act has held, or has acted as one of the persons holding, an inquiry into matters relating to the subject matter of the charge against the accused.

(5)In subsection (4) above “the preliminary charge” means the charge referred to higher authority by the commanding officer of the accused.

Textual Amendments

F244S. 84A-84D inserted (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 19; S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F245S. 84C(2)(cc) inserted (28.2.2002) by 2001 c. 19, s. 19, Sch. 2 para. 1(2)(a); S.I. 2002/345, art. 2 (subject to transitional provisions in art. 3)

F246Words in s. 84C(2)(d) inserted (28.2.2002) by 2001 c. 19, s. 19, Sch. 2 para. 1(2)(b); S.I. 2002/345, art. 2 (subject to transitional provisions in art. 3)

F247Words in S. 84C(4)(e) inserted (28.2.2002) by 2001 c. 19, s. 19, Sch. 2 para. 1(3); S.I. 2002/345, art. 2 (subject to transitional provisions in art. 3)

[F24884D Constitution of general and district courts-martialU.K.

(1)A general court-martial shall consist of—

(a)the president, who shall be a military officer,

(b)the judge advocate, and

(c)at least four other persons of whom—

(i)two shall each be either a military officer or a military warrant officer, and

(ii)the rest shall be military officers.

(2)A district court-martial shall consist of—

(a)the president, who shall be a military officer,

(b)the judge advocate, and

(c)at least two other persons of whom—

(i)one shall be either a military officer or a military warrant officer, and

(ii)the rest shall be military officers.

(3)An officer shall not be appointed as the president of a general or district court-martial unless he has held a commission in any of Her Majesty’s naval, military or air forces for a period of not less than the qualifying period or for periods amounting in the aggregate to not less than the qualifying period.

(4)The president of a general or district court-martial shall not be below the rank of field officer unless in the opinion of the court administration officer a field officer having suitable qualifications is not, with due regard to the public service, available; and in any event the president of such a court-martial shall not be below the rank of captain.

(5)An officer shall not be appointed under subsection (1)(c) above as a member of a general court-martial or under subsection (2)(c) above as a member of a district court-martial unless—

(a)he has held a commission in any of Her Majesty’s naval, military or air forces for a period of not less than the qualifying period or for periods amounting in the aggregate to not less than the qualifying period, or

(b)immediately before receiving his commission, he was a warrant officer in any of those forces.

(6)In subsections (3) and (5) above “the qualifying period” means—

(a)in relation to a general court-martial, three years, and

(b)in relation to a district court-martial, two years.

(7)A general or district court-martial shall not include any warrant officer unless the court-martial is for the trial of a person of a rank below that of the warrant officer concerned.

(8)A general or district court-martial shall not include an officer appointed under subsection (1)(c) or (2)(c) above who qualifies under subsection (5) above only by virtue of paragraph (b) of that subsection, unless the court-martial is for the trial of a person of a rank below that which the officer held immediately before he received his commission.

(9)Not more than two of the members of a general court-martial appointed under subsection (1)(c) above shall be of a rank below that of captain; and, in the case of a general court-martial for the trial of an officer above the rank of captain, all the members so appointed shall be of or above the rank of captain.

(10)If, in the opinion of the court administration officer, the necessary number of military officers or military warrant officers having suitable qualifications is not, with due regard to the public service, available for appointment under subsection (1)(c) or (2)(c) above, he may appoint under that provision—

(a)any naval or air-force officer having qualifications corresponding to those required for a military officer, or

(b)where a military warrant officer could be appointed, any naval or air-force warrant officer having qualifications corresponding to those required for a military warrant officer.

(11)In this section—

  • air-force officer” means an officer belonging to Her Majesty’s air forces and subject to air-force law;

  • air-force warrant officer” means a warrant officer belonging to Her Majesty’s air forces and subject to air-force law;

  • military officer” means an officer belonging to Her Majesty’s military forces and subject to military law;

  • military warrant officer” means a warrant officer belonging to Her Majesty’s military forces and subject to military law;

  • naval officer” means an officer belonging to Her Majesty’s naval forces and subject to the Naval Discipline Act 1957;

  • naval warrant officer” means a warrant officer belonging to Her Majesty’s naval forces and subject to the Naval Discipline Act 1957.]

Textual Amendments

F248S. 84D substituted (28.2.2002) by 2001 c. 19, s. 19, Sch. 2 para. 2; S.I. 2002/345, art. 2 (subject to transitional provisions in art. 3)

85 Powers of different descriptions of court-martial.U.K.

(1)A general court-martial shall have power to try any person subject to military law for any offence whichunder this Act is triable by court-martial, [F249and, subject to section 85A below, to award] for any such offence any punishment authorised bythis Act for that offence.

(2)A district court-martial shall have the powers of a general court-martial except that it shall not tryan officer or sentence a warrant officer to imprisonment, discharge with ignominy, dismissal or detention,and shall not award the punishment F250. . . of imprisonment for a term exceeding two years [F251or make an order committing a person to be detained under section 71AA of this Actfor a period exceeding two years].

F252(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F249Words in s. 85(1) substituted (2.10.2000) by 2000 c. 4, s. 12(2); S.I. 2000/2366, art. 2 (with Sch. para. 15)

F250Words in s. 85(2) repealed (11.5.2001) by 2001 c. 19, s. 38, Sch. 7 Pt. 4

F252S. 85(3) repealed (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, ss. 5, 35(2), Sch. 1 Pt. III para. 20, Sch. 7 Pt. I; S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

[F25385A Powers of court-martial where accused elected court-martial trial.U.K.

(1)Where a court-martial tries a person in pursuance of an election for court-martial trial, the court shall not award any punishment which could not have been awarded by the commanding officer or appropriate superior authority who would have dealt summarily with the preliminary charge if the election had not been made.

(2)In subsection (1) above “the preliminary charge” means the charge which would have been dealt with summarily had the accused not elected court-martial trial.

(3)For the purposes of this section a court-martial is not to be regarded as trying a person in pursuance of an election for court-martial trial if, since the election was made, the prosecuting authority has referred the charge back to the commanding officer under section 83BB of this Act.]

Textual Amendments

F253S. 85A inserted (2.10.2000) by 2000 c. 4, s. 12(1); S.I. 2000/2366, art. 2 (with Sch. para. 15)

F25486. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

Textual Amendments

F254S. 86 repealed (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, ss. 5, 35(2), Sch. 1 Pt. III para. 21, Sch. 7 Pt. I; S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F25587. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

Textual Amendments

F255S. 87 repealed (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, ss. 5, 35(2), Sch. 1 Pt. III para. 21, Sch. 7 Pt. I; S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F25688. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

Textual Amendments

F256S. 88 repealed (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, ss. 5, 35(2), Sch. 1 Pt. III para. 21, Sch. 7 Pt. I; S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F25789. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

Textual Amendments

F257S. 89 repealed (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, ss. 5. 35(2), Sch. 1 Pt. III para. 21, Sch. 7 Pt. I; S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F25890. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

Textual Amendments

F258S. 90 repealed (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, ss. 5, 35(2), Sch. 1 Pt. III para. 21, Sch. 7 Pt. I; S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

91 Place for sitting of courts-martial and adjournment to other places.U.K.

(1)Subject to the provisions of this section, a court-martial shall sit at such place (whether within orwithout [F259the United Kingdom]) as may be specified in the order convening the court; F260. . .

(2)A court-martial sitting at any place [F261may] if it appears to the court requisite in the interests of justiceto sit at some other place, adjourn for the purpose of sitting at that other place.

Textual Amendments

F259Words in s. 91(1) substituted (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 22(1)(2)(a); S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F260Words in s. 91(1) repealed (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, ss. 5, 35(2), Sch. 1 Pt. III para. 22(1)(2)(b), Sch. 7 Pt. I; S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F261Words in s. 91(2) substituted (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 22(1)(3); S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

Courts-martial: provisions relating to trialU.K.

92 Challenges by accused.U.K.

(1)An accused about to be tried by any court-martial shall be entitled to object, on any reasonablegrounds, to any member of the court, whether appointed originally or in lieu of another [F262member].

(2)For the purpose of enabling the accused to avail himself of the right conferred by the last foregoingsubsection, the names of the members of the court shall be read over in the presence of the accused before [F263the officers appointed members [F264, and any warrant officers so appointed,]] are sworn, and he shall be asked whether he objects to any of [F265the members].

(3)Every objection made by an accused to any [F266member] shall be [F267determined by the judge advocate].

(4)If [F268an objection to the president is allowed], the court shall adjourn and the [F269court administration] officer shall appoint another president.

(5)If [F270an objection to any other officer appointed a member of the court [F271or to any warrant officer so appointed] is allowed], the [F272officer][F273or warrant officer] objected to shall retire and the vacancy may, and ifotherwise the number of [F274members who are officers or warrant officers] would be reduced below the legal minimum shall, be filled in the prescribedmanner by [F275another person (who may be either an officer or, where the vacancy could in accordance with this Act be filled by a warrant officer, a warrant officer)].

[F276(6)If an objection to the judge advocate is allowed, the judge advocate shall retire and another judge advocate shall be appointed by or on behalf of the Judge Advocate General.]

Textual Amendments

F262Word in s. 92(1) substituted (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 23(1)(2); S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F263Words in s. 92(2) substituted (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 23(1)(3)(a); S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F264Words in s. 92(2) inserted (28.2.2002) by 2001 c. 19, s. 19, Sch. 2 para. 3(2); S.I. 2002/345, art. 2 (subject to transitional provisions in art. 3)

F265Words in s. 92(2) substituted (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 23(1)(3)(b); S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F266Word in s. 92(3) substituted (1.4.1997 subject to art. 3of the commencing S.I.) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 23(1)(4)(a); S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F267Words in s. 92(3) substituted (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 23(1)(4)(b); S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F268Words in s. 92(4) substituted (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 23(1)(5)(a); S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F269Words in s. 92(4) substituted (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 23(1)(5)(b); S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F270Words in s. 92(5) substituted (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 23(1)(6)(a); S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F271Words in s. 92(5) inserted (28.2.2002) by 2001 c. 19, s. 19, Sch. 2 para. 3(a); S.I. 2002/345, art. 2 (subject to transitional provisions in art. 3)

F272Words in s. 92(5) substituted (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 23(1)(6)(b); S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F273Words in s. 92(5) inserted (28.2.2002) by 2001 c. 19, s. 19, Sch. 2 para. 3(b); S.I. 2002/345, art. 2 (subject to transitional provisions in art. 3)

F274Words in s. 92(5) substituted (28.2.2002) by 2001 c. 19, s. 19, Sch. 2 para. 3(c); S.I. 2002/345, art. 2 (subject to transitional provisions in art. 3)

F275Words in s. 92(5) substituted (28.2.2002) by 2001 c. 19, s. 19, Sch. 2 para. 3(d); S.I. 2002/345, art. 2 (subject to transitional provisions in art. 3)

F276S. 92(6) added (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 23(1)(7); S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

93 Administration of oaths.U.K.

(1)An oath shall be administered to every [F277officer [F278or warrant officer] appointed a] member of a court-martial and to any person, F279. . ., in attendance on a court-martial as F279. . ., officer [F280or other person] under instruction, F281 or interpreter.

F282(1A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F283(1B)A witness before a court-martial—

(a)shall be examined on oath if he has attained the age of fourteen; and

(b)shall give evidence unsworn if he is under that age.

(2)Unsworn evidence admitted by virtue of subsection (1B)(b) above may corroborate evidence (sworn or unsworn) given by any other person.]

[F284(2A)Unsworn evidence admitted by virtue of the proviso to subsection (2) above may corroborate evidence (sworn or unsworn) given by any other person.]

(3)An oath required to be administered under this section shall be in the prescribed form and shall beadministered at the prescribed time by the prescribed person and in the prescribed manner.

Textual Amendments

F277Words in s. 93(1) inserted (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 24(1)(2)(a); S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F278Words in s. 93(1) inserted (28.2.2002) by 2001 c. 19, s. 19, Sch. 2 para. 4; S.I. 2002/345, art. 2 (subject to transitional provisions in art. 3)

F279Words in s. 93(1) repealed (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, ss. 5, 35(2), Sch. 1 Pt. III para. 24(1)(2)(b), Sch. 7 Pt. I; S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F282S. 93(1A) repealed (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, ss. 5, 35(2), Sch. 1 Pt. III para. 24(1)(3), Sch. 7 Pt. I; S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F283S. 93 (1B)(2) substituted (1.10.1992 (E.W.)) for s. 93(2) by Criminal Justice Act 1991 (c. 53, SIF 39:1), ss. 71, 102(2), Sch. 9, para. 3; S.I. 1992/333, art. 2(2), Sch. 2

Modifications etc. (not altering text)

C42This version of s. 93 records amendments made by 1991 c. 53 which are still partly prospective and amendments made by 1991 c. 62. Some amendments made by 1991 c. 62 conflict and they are shown in a separate version.

94 Courts-martial to sit in open court.U.K.

(1)Subject to the provisions of this section, a court-martial shall sit in open court and in the presenceof the accused.

(2)Nothing in the last foregoing subsection shall affect the power of a court-martial to sit in camera onthe ground that it is necessary or expedient in the interests of the administration of justice to do so;and without prejudice to that power a court-martial may order that, subject to any exceptions the court mayspecify, the public shall be excluded from all or any part of the proceedings of the court if it appearsto the court that any evidence to be given or statement to be made in the course of the proceedings or thatpart, as the case may be, might otherwise lead to the disclosure of any information which would or mightbe directly or indirectly useful to an enemy.

(3)A court-martial shall sit in closed court while deliberating on their finding or sentence on any charge.

(4)A court-martial may sit in closed court on any other deliberation amongst the members.

(5)Where a court-martial sits in closed court no person shall be present except the members of the courtand such other persons as may be prescribed.

[F285(6)The judge advocate shall not be present while the other members of the court are deliberating on their finding on any charge.

F285(7)Any ruling or direction of the judge advocate on a question of law (including a question of procedure or practice) shall be given in open court.

F285(8)The judge advocate may determine, and give rulings on, questions of law (including questions of procedure and practice) in the absence of the other members of the court and of any officers and other persons under instruction.]

Textual Amendments

F285S. 94(6)-(8) added (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 25; S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

95 Dissolution of courts-martial.U.K.

(1)Where, [F286before] the commencement of the trial, it appears to the [F287court administration] officernecessary or expedient in the interests of the administration of justice that a court-martial should bedissolved, the [F287court administration] officer may by order dissolve the court-martial.

[F288(1A)Where, after the commencement of the trial, it appears to the judge advocate necessary or expedient in the interests of the administration of justice that a court-martial should be dissolved, he may by order dissolve the court-martial.]

(2)Without prejudice to the generality of the last foregoing subsection, if after the commencement of thetrial a court-martial is, by reason of the death of one of the members or for any other reason, reducedbelow the legal minimum, it shall be dissolved.

(3)If after the commencement of the trial the president dies or is otherwise unable to attend and the courtis not reduced below the legal minimum, then—

(a)if the senior member of the court is of the rank of captain or corresponding rank or is of higher rank,the [F289judge advocate] may appoint him president and the trial shall proceed accordingly; but

(b)if he is not, the court shall be dissolved.

F290(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5)Where a court-martial is dissolved under the foregoing provisions of this section the accused may betried by another court.

Textual Amendments

F286Words in s. 95(1) substituted (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 26(1)(2)(a); S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F287Words in s. 95(1) substituted (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 26(1)(2)(b); S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F288S. 95(1A) inserted (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 26(1)(3); S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F289Words in s. 95(3)(a) substituted (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 26(1)(4); S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F290S. 95(4) repealed (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, ss. 5, 35(2), Sch. 1 Pt. III para. 26(1)(5), Sch. 7 Pt. I; S.I. 1997/304, art. 2 (with transitional provision in Sch. 2)

96 Decisions of courts-martial.U.K.

(1)Subject to the provisions of this section, [F291the finding of a court-martial and any sentence awarded]shall be determined by a majority of the votes of the members of the court.

[F292(1A)The judge advocate shall not be entitled to vote on the finding.]

(2)In the case of an equality of votes on the finding, the court shall acquit the accused.

F293(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F293(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5)In the case of an equality of votes on the sentence, F294. . ., the president shall have a second or casting vote.

Textual Amendments

F291Words in s. 96(1) substituted (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 27(1)(2); S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F292S. 96(1A) inserted (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 27(1)(3); S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F293S. 96(3)(4) repealed (11.5.2001) by 2001 c. 19, s. 38, Sch. 7 Pt. 4

F294Words in s. 96(5) repealed (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, ss. 5, 35(2), Sch. 1 Pt. III, para. 27(1)(5), Sch. 7 Pt. I; S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

97 Finding and sentence.U.K.

(1)Without prejudice to the provisions of section ninety-four of this Act, the finding of a court-martialon each charge shall be announced in open court.

F295(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)Any sentence of a court-martial, together with any recommendation to mercy [F296and any reasons for the sentence], shall be announced in opencourt, F297. . ..

Textual Amendments

F295S. 97(2) repealed (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, s. 35(2), Sch. 7 Pt. II; S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F296Words in s. 97(3) inserted (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 28; S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F297Words in s. 97(3) repealed (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, s. 35(2), Sch. 7 Pt. II; S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

Modifications etc. (not altering text)

C43S. 97 modified (1.4.1997) by S.I. 1997/172, art. 86

98 Power to convict of offence other than that charged.U.K.

(1)An accused charged before a court-martial with an offence under this Act may, on failure of proof ofthe offence having been committed under circumstances involving a higher degree of punishment, be foundguilty of the offence as having been committed under circumstances involving a less degree of punishment.

(2)An accused charged before a court-martial with any offence may be found guilty of attempting to committhat offence.

(3)An accused charged before a court-martial with attempting to commit an offence may be convicted on thatcharge notwithstanding that it is proved that he actually committed the offence.

(4)Where an accused is charged before a court-martial under section seventy of this Act in respect ofattempting to commit a civil offence, he may be convicted on that charge notwithstanding that it is provedthat he actually committed the civil offence.

(5)Where an accused is charged before a court-martial with an offence against section seventy of this Act,and the corresponding civil offence is one in proceedings for which, if he had been tried by a civil courtfor committing the offence in England, he might have been found guilty of another civil offence, then ifthe court finds that he has committed that other civil offence he may be convicted of an offence againstsection seventy of this Act in respect of the commission of that other civil offence.

(6)An accused charged before a court-martial with an offence specified in the first column of the ThirdSchedule to this Act may be found guildy of an offence specified in relation thereto in the second columnof that schedule.

99 Rules of evidence.U.K.

(1)The rules as to the admissibility of evidence to be observed in proceedings before courts-martial shall [F298, subject to section 99A below [F299to Schedule 13 to the Criminal Justice Act 1988 (evidence before courts-martial etc.) [F300to Schedules 6 and 7 to the Criminal Justice Act 2003]] [F301and to service modifications],] be the same as those observed in [F302trials on indictment] in England, and no person shall be required inproceedings before a court-martial to answer any question or to produce any document which he could not berequired to answer or produce in similar proceedings [F303in a trial on indictment] in England.

[F304(1A)In this section “service modifications” means such modifications as the Secretary ofState may by regulations made by statutory instrument prescribe, being modifications which appear to himto be necessary or proper for the purposes of proceedings before a court-martial; and it is hereby declaredthat in this section—

rules” includes rules contained in or made by virtue of an enactment; and

enactment” includes an enactment contained in an Act passed after this Act.

(1B)Regulations under subsection (1A) above may not modify section 99A below.

(1C)Regulations under subsection (1A) above shall be subject to annulment in pursuance of a resolution ofeither House of Parliament.]

F305(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)A court-martial shall take judicial notice of all matters of notoriety, including all matters withinthe general service knowledge of the court, and of all other matters of which judicial notice would be takenin a [F306trial on indictment] in England.

Textual Amendments

F300Words in s. 99(1) inserted (1.1.2005 for specified purposes, 4.4.2005 in so far as not already in force) by Criminal Justice Act 2003 (c. 44), s. 336(3)(4), Sch. 36 para. 81; S.I. 2004/3033, art. 4(1)(2)(c); S.I. 2005/950, art. 2(1), Sch. 1 para. 43(b) (with Sch. 2) (as explained (29.7.2005) by S.I. 2005/2122, art. 2; and as amended: (14.7.2008) by 2008 c. 4, Sch. 26 para. 78, Sch. 28 Pt. 2; S.I. 2008/1586, Sch. 1 paras. 48(s), 50(2)(d); (30.11.2009) by S.I. 2009/3111, art. 2; (3.12.2012) by S.I. 2012/2905, art. 4; (3.12.2012) by 2012 c. 10, Sch. 14 para. 17; S.I. 2012/2906, art. 2(l))

F302Words in s. 99(1) substituted (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 29(1)(2)(a); S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F303Words in s. 99(1) substituted (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 29(1)(2)(b); S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F306Words in s. 99(3) substituted (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 29(1)(3); S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

Modifications etc. (not altering text)

C44S. 99(1)(3) applied (with modifications) (2.10.2000) by S.I. 2000/2371, rule 27(1)(a)(2)

[F30799A Proof at courts-martial by written statement.U.K.

(1)[F308Without prejudice to section 99 above, section] 9 of the M22Criminal Justice Act 1967 (proof by written statement) shall applysubject to subsection (2) below and to service modifications, for the purposes of proceedings beforecourts-martial (whether held in the United Kingdom or not) as it applies to proceedings on indictment.

(2)The statements rendered admissible by this section are statements made—

(a)in the United Kingdom by any person, and

(b)outside the United Kingdom by any person who at the time of making the statement was—

(i)a person subject to service law, or

(ii)a person to whom Part II of this Act or Part II of the M23Air Force Act 1955 is appliedby section 208A or section 209 of this Act or that Act respectively, or to whom Parts I and II of the M24Naval Discipline Act 1957 are applied by section 117 or section 118 of that Act.

and the persons mentioned in this paragraph include persons to whom section 131 of this Act, section131 of the M25Air Force Act 1955 or section 119 of the M26Naval DisciplineAct 1957 apply.

(3)In subsection (1) above “service modifications” means—

(a)modifications made by any regulations under section 12 of the M27Criminal Justice Act1967 in force on the coming into force of this section, and

(b)such modifications in the said section 9, as applied by subsection (1) above, as the Secretary of Statemay by regulations made by statutory instrument prescribe thereafter, being modifications which appear tohim to be necessary or proper for the purpose of the operation of that section in relation to proceedingsbefore a court-martial.

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

(5)Section 89 of the said Act of 1967 (punishment of making false statements tendered under section 9)shall apply to any statement rendered admissible by this section.]

Textual Amendments

F308Words substituted by Police and Criminal Evidence Act 1984 (c. 60, SIF 95), s. 119(1),Sch. 6 Pt. II para. 28(3)

Modifications etc. (not altering text)

C45S. 99A(1)(2)(5) applied (with modifications) (2.10.2000) by S.I. 2000/2371, rule 27(1)(b)(2)

Marginal Citations

100 Privilege of witnesses and others at courts-martial.U.K.

A witness before a court-martial or any other person whose duty it is to attend on or before the courtshall be entitled to the same immunities and privileges as a witness before the High Court in England.

101 Offences by civilians in relation to courts-martial.U.K.

[F309(1)]Where in the United Kingdom or in any colony any person not subject to military law—

(a)having been duly summoned to attend as a witness before a court-martial, fails to comply with thesummons, or

(b)refuses to swear an oath when duly required by a court-martial to do so, or

(c)refuses to produce any [F310document or other thing which is in his custody or under his control and] which a court-martial has lawfully required him to produce, or

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

(e)wilfully insults any person, being a member of a court-martial or a witness or any other person whoseduty it is to attend on or before the court, while that person is acting as a member thereof or is soattending, or wilfully insults any such person as aforesaid while that person is going to or returning fromthe proceedings of the court, or

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

(g)does any other thing which would, if the court-martial had been a court of law having power to commitfor contempt, have been contempt of that court,

the president of the court-martial may certify the offence of that person under his hand to any courtof law in the part of the United Kingdom or in the colony, as the case may be, where the offence is allegedto have been committed, being a court having power to commit for contempt, and that court of law maythereupon inquire into the alleged offence and after hearing any witnesses who may be produced against oron behalf of the person charged with the offence, and after hearing any statement that may be offered indefence, punish or take steps for the punishment of that person in like manner as if he had been guilty ofcontempt of the court to which the offence is certified:

Provided that where the offence is alleged to have been committed in the United Kingdom and thecourt-martial was held outside the United Kingdom, the certifying of the offence may be done by [F311the Defence Council] or any officer authorised by them.

[F312(2)In subsection (1) of this section references in paragraphs (a) to (g) to a court-martial or to a member of a court-martial include references to a judicial officer and, in relation to an offence committed in relation to a judicial officer—

(a)the reference to the president of the court-martial is a reference to the judicial officer, and

(b)the reference to a court-martial held outside the United Kingdom is a reference to the judicial officer sitting outside the United Kingdom.]

[F313(3)In subsection (1) of this section references in paragraphs (a) to (g) to a court-martial include references to the summary appeal court and, in relation to an offence committed in relation to that court—

(a)the reference to the president of the court-martial is a reference to the judge advocate in relation to the summary appeal court, and

(b)the reference to a court-martial held outside the United Kingdom is a reference to the summary appeal court sitting outside the United Kingdom.]

Textual Amendments

F309S. 101 renumbered as s. 101(1) (2.10.2000) by 2000 c. 4, s. 10, Sch. 1 para. 3; S.I. 2000/2366, art. 2 (with Sch. para. 13)

F310Words in s. 101(1)(c) substituted (28.2.2002) by 2001 c. 19, s. 24(2)(b); S.I. 2002/345, art. 2 (subject to transitional provisions in art. 3)

F311Words substituted by S.I. 1964/488, Sch. 1 Pt. I

F312S. 101(2) inserted (2.10.2000) by 2000 c. 4, s. 10, Sch. 1 para. 3; S.I. 2000/2366, art. 2 (with Sch. para. 13)

F313S. 101(3) inserted (2.10.2000) by 2000 c. 4, s. 25, Sch. 3 para. 6; S.I. 2000/2366, art. 2 (with Sch. para. 13)

102 Affirmations.U.K.

(1)If—

(a)a person required by virtue of this Act to take an oath for the purposes of proceedings before acourt-martial objects to being sworn, F314, or

(b)it is not reasonably practicable to administer an oath to such a person as aforesaid in the mannerappropriate to his religious belief,

he shall be permitted to make a solemn affirmation in the prescribed form instead of taking an oath.

[F315(2)A person who may be permitted under this section to make his solemn affirmation may also be requiredto do so, and for the purposes of this section “reasonably practicable” means reasonably practicable without inconvenience or delay.]

O ffences: procedureU.K.

[F316103 Rules.U.K.

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

(a)the investigation, prosecution and trial of, and awarding of punishment for, offences cognizable by courts-martial;

(b)the review of findings and sentences of courts-martial.

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

(a)proceedings preliminary to trials by general or district courts-martial;

(b)the appointment of a judge advocate for any preliminary proceedings;

(c)the delegation by court administration officers of any of their functions;

(d)the convening and constitution of general and district courts-martial;

(e)the sittings, adjournment and dissolution of general and district courts-martial;

(f)the procedure to be followed in trials by general and district courts-martial;

(g)the representation of the accused at such trials and any preliminary proceedings;

(h)procuring the attendance of witnesses at such trials and any preliminary proceedings;

(i)enabling a general or district court-martial, in such cases and to such extent as may be prescribed, to amend a charge which is being tried by the court;

(j)enabling a general or district court-martial, where the particulars proved or admitted at the trial differ from those alleged in the charge but are sufficient to support a finding of guilty of the like offence as that charged, to make a finding of guilty subject to exceptions or variations specified in the finding if it appears to the court that the difference is not so material as to have prejudiced the accused in his defence;

(k)directing that the powers conferred by section 7 of the M28Bankers’ Books Evidence Act 1879 (which enables orders to be made for the inspection of bankers’ books for the purposes of legal proceedings) may be exercised for the purposes of a general or district court-martial (whether within or without the United Kingdom) by the commanding officer of the accused or a judge advocate as well as by the court or a judge within the meaning of that Act;

(l)the forms of orders and other documents to be made for the purposes of any provision of this Act or of rules under this section;

(m)the cases in which, and extent to which, offences may be taken into consideration by a general or district court-martial and the powers of the court in relation to any offences taken into consideration;

[F317(mm)enabling any jurisdiction conferred on a court-martial by virtue of sections 26 to 28 of the Armed Forces Act 2001 to be exercised by the judge advocate sitting alone;]

(n)the recording of the proceedings of a general or district court-martial;

(o)the procedure to be followed on review of findings and sentences of general or district courts-martial.

(3)Rules made by virtue of paragraph (i) of subsection (2) above shall secure that the power to amend charges is not exercisable in circumstances substantially different from those in which indictments are amendable by a civil court in England, or otherwise than subject to the like conditions, as nearly as circumstances admit, as those subject to which indictments are so amendable.

[F318(3A)Rules under this section may make provision as to the application of sections 83B and 83BB of this Act in relation to cases where an election for court-martial trial relates to two or more charges.]

(4)A rule under this section which is inconsistent with the provisions of this Act shall to the extent of the inconsistency be void.

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

Textual Amendments

F316S. 103 substituted (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 30; S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F318S. 103(3A) inserted (2.10.2000) by 2000 c. 4, s. 13, Sch. 2 para. 5; S.I. 2000/2366, art. 2 (with Sch. para. 13)

Marginal Citations

[F319 Field General Courts-MartialU.K.

Textual Amendments

F319Ss. 103A-103C and cross-heading inserted (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 31; S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F320103A Field general courts-martial.U.K.

(1)Where an officer to whom this subsection applies—

(a)is commanding a body of the regular forces on active service; and

(b)is of opinion that it is not possible without serious detriment to the public service for a charge against a member of that body to be tried by a general or district court-martial,

he may direct that the charge be tried by a field general court-martial.

(2)Subsection (1) above applies to—

(a)the commanding officer who has investigated the charge;

(b)the commanding officer or appropriate superior authority who has determined on a summary dealing that the charge against the accused has been proved, in a case where the accused has elected court-martial trial and that election has not been withdrawn;

(c)where the charge is against an officer or warrant officer, the higher authority to whom the charge has been referred by the commanding officer.

(3)If an officer to whom subsection (1) above applies directs that a charge be tried by a field general court-martial, he shall by order convene a field general court-martial.

(4)The order convening the field general court-martial shall specify—

(a)the date, time and place at which the court-martial is to sit;

(b)the officers who are to be members of the court-martial;

(c)which of those officers is to be president of the court-martial.

[F321(d)any warrant officer who is to be a member of the court-martial.]

[F322(4A)Where a judge advocate, as defined by section 103B(4) of this Act, is to be a member of a field general court-martial, the order convening the court-martial shall state that fact, and state whether the judge advocate is to be appointed by or on behalf of the Judge Advocate General or by the officer convening the court-martial.]

(5)At any time before the commencement of the trial, the officer who convened the field general court-martial may, in accordance with rules under section 103C of this Act, amend or withdraw the order convening the court-martial.

(6)Subject to subsection (7) below, the officer convening the field general court-martial shall not be a member of the court-martial.

(7)The officer convening the field general court-martial may be its president if, in his opinion, it is not possible, without serious detriment to the public service, to appoint another officer as president.

Textual Amendments

F320S. 103A-103C and cross-heading inserted (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 31; S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F321S. 103A(4)(d) inserted (28.2.2002) by 2001 c. 19, s. 19, Sch. 2 para. 5(2); S.I. 2002/345, art. 2 (subject to transitional provisions in art. 3)

F322S. 103A(4A) inserted (28.2.2002) by 2001 c. 19, s. 19, Sch. 2 para. 5(3); S.I. 2002/345, art. 2 (subject to transitional provisions in art. 3)

F323103B Constitution of field general courts-martial.U.K.

(1)Subject to subsections (2) and (3) below, a field general court-martial shall [F324consist of-

(a)the president, who shall be a military officer, and

(b)at least two persons appointed under this paragraph, of whom—

(i)one shall be either a military officer or a military warrant officer, and

(ii)the rest shall be military officers.]

(2)If the officer who convened the field general court-martial is of opinion that [F325three persons having suitable qualifications are not available for appointment under subsection (1)(a) and (b) above] without serious detriment to the public service, the field general court-martial shall consist of the president and one other military officer.

(3)Unless the officer convening the field general court-martial is of opinion that a judge advocate is not available without serious detriment to the public service, a judge advocate shall be a member of the court-martial.

(4)In subsection (3) above, “a judge advocate” means a judge advocate appointed by or on behalf of the Judge Advocate General or, if the officer convening the field general court-martial is of opinion that no such judge advocate is available without serious detriment to the public service, a qualified officer appointed by that officer.

(5)An officer is “qualified” for the purposes of subsection (4) above if he is—

(a)a person who has a general qualification within the meaning of section 71 of the M29Courts and Legal Services Act 1990;

(b)an advocate or solicitor in Scotland; or

(c)a member of the Bar of Northern Ireland or a solicitor of the Supreme Court of Northern Ireland.

(6)The president of a field general court-martial shall not be below the rank of captain.

[F326(6A)A field general court-martial shall not include any warrant officer unless the court-martial is for the trial of a person of a rank below that of the warrant officer concerned.]

[F327(7)If a field general court-martial is to be convened at any place where, in the opinion of the officer convening it, the necessary number of military officers or military warrant officers having suitable qualifications is not, with due regard to the public service, available for appointment under subsection (1)(b) above, he may appoint under that provision—

(a)any naval or air-force officer having qualifications corresponding to those required for a military officer, or

(b)where a military warrant officer could be appointed, any naval or air-force warrant officer having qualifications corresponding to those required for a military warrant officer.]

(8)A field general court-martial shall have the powers of a general court-martial except that where [F328only two persons, apart from any judge advocate (as defined by subsection (4) above),] are members of the court the sentence shall not exceed imprisonment for a term of two years or detention under section 71AA of this Act for a period of two years.

(9)In this section—

  • air force officer” means an officer belonging to Her Majesty’s air forces and subject to air-force law;

  • [F329air-force warrant officer” means a warrant officer belonging to Her Majesty’s air forces and subject to air-force law;]

  • military officer” means an officer belonging to Her Majesty’s military forces and subject to military law; and

  • [F330military warrant officer” means a warrant officer belonging to Her Majesty’s military forces and subject to military law;]

  • naval officer” means an officer belonging to Her Majesty’s naval forces and subject to the M30Naval Discipline Act 1957.

  • [F331naval warrant officer” means a warrant officer belonging to Her Majesty’s naval forces and subject to the Naval Discipline Act 1957.]

Textual Amendments

F323Ss. 103A-103C and cross-heading inserted (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 31; S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F324Words in s. 103B(1) substituted (28.2.2002) by 2001 c. 19, s. 19, Sch. 2 para. 6(2); S.I. 2002/345, art. 2 (subject to transitional provisions in art. 3)

F325Words in s. 103B(2) substituted (28.2.2002) by 2001 c. 19, s. 19, Sch. 2 para. 6(3); S.I. 2002/345, art. 2 (subject to transitional provisions in art. 3)

F326S. 103B(6A) inserted (28.2.2002) by 2001 c. 19, s. 19, Sch. 2 para. 6(4); S.I. 2002/345, art. 2 (subject to transitional provisions in art. 3)

F327S. 103B(7) substituted (28.2.2002) by 2001 c. 19, s. 19, Sch. 2 para. 6(5); S.I. 2002/345, art. 2 (subject to transitional provisions in art. 3)

F328Words in s. 103B(8) substituted (28.2.2002) by 2001 c. 19, s. 19, Sch. 2 para. 6(6); S.I. 2002/345, art. 2 (subject to transitional provisions in art. 3)

F329Words in s. 103B(9) inserted (28.2.2002) by 2001 c. 19, s. 19, Sch. 2 para. 6(7)(a); S.I. 2002/345, art. 2 (subject to transitional provisions in art. 3)

F330Words in s. 103B(9) inserted (28.2.2002) by 2001 c. 19, s. 19, Sch. 2 para. 6(7)(b); S.I. 2002/345, art. 2 (subject to transitional provisions in art. 3)

F331Words in s. 103B(9) inserted (28.2.2002) by 2001 c. 19, s. 19, Sch. 2 para 6(7)(c); S.I. 2002/345, art. 2 (subject to transtitional provisions in art. 3)

Marginal Citations

F332103C Field General Court-Martial Rules.U.K.

(1)The Secretary of State may by statutory instrument make rules with respect to field general courts-martial.

(2)Rules under this section may in particular—

(a)provide for any provision of this Act relating to general or district courts-martial or the proceedings of such courts-martial to apply to field general courts-martial or the proceedings of such courts-martial with the necessary modifications;

(b)make any provision with respect to field general courts-martial which may be made with respect to general and district courts-martial by rules under section 103 of this Act.]

Textual Amendments

F332S. 103A-103C and cross-heading inserted (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, s. 5, Sch. 1 Pt. III para. 31; S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F333104. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

Textual Amendments

F333S. 104 repealed (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, ss. 5, 35(2), Sch. 1 Pt. III para. 32, Sch. 7 Pt. I; S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F334105. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

Textual Amendments

F334S. 105 repealed (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, ss. 5, 35(2), Sch. 1 Pt. III para. 32, Sch. 7 Pt. I (with transitional provisions in Sch. 2)

F335106. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

Textual Amendments

F335S. 106 repealed (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, ss. 5, 35(2), Sch. 1 Pt. III para. 32, Sch. 7 Pt. I; S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

Confirmation, revision and review of proceedings of courts-martialU.K.

F336107. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

Textual Amendments

F336S. 107 repealed (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, s. 35(2), Sch. 7 Pt. II; S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F337108. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

Textual Amendments

F337S. 108 repealed (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, ss. 16, 35(2), Sch. 5 para. 2, Sch. 7 Pt. III (with transitional provisions in Sch. 2)

F338109. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

Textual Amendments

F338S. 109 repealed (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, s. 35(2), Sch. 7 Pt. II; S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F339110. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

Textual Amendments

F339S. 110 repealed (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, s. 35(2), Sch. 7 Pt. II; S.I. 1997/304, art. 2 (with transitional provisions in art. 4)

F340111. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

Textual Amendments

F340S. 111 repealed (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, s. 35(2), Sch. 7 Pt. II; S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

[F341 Review of proceedings of courts-martial]U.K.

Textual Amendments

F341S. 112 and cross-heading substituted (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, s. 16, Sch. 5 para. 3; S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F342112. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

Textual Amendments

F342S. 112 repealed (11.5.2001) by 2001 c. 19, s. 38, Sch. 7 Pt. 4

[F343113 Review of findings and sentences of courts-martial.U.K.

(1)Where a court-martial has found the accused guilty of any offence, the accused may, before the end of the prescribed period after sentence is passed, present a petition to the Defence Council against finding or sentence or both.

(2)The reviewing authority shall, in accordance with subsections (3) and (4) below, review any finding of guilt made, and sentence passed, by a court-martial.

(3)The review under this section shall (if it does not begin sooner) begin as soon as is practicable after—

(a)in a case where a petition has been presented under this section, the presentation of the petition;

(b)in any other case, the end of the period within which a petition under this section may be presented.

(4)Where an application for leave to appeal to the Courts-Martial Appeal Court against a finding or sentence has been made before the review under this section of the finding or sentence has been completed—

(a)the reviewing authority shall complete the review as soon as is practicable; but

(b)if leave to appeal is granted before the review has been completed, the authority shall cease considering the review.

(5)For the purposes of this Act the reviewing authority is—

(a)the Defence Council; or

(b)any officer to whom all or any of the powers of the Defence Council as reviewing authority may be delegated by the Defence Council.

F344(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

Textual Amendments

F343Ss. 113, 113AA substituted (1.4.1997 subject to art. 3 of the commencing S.I.) for s. 113 by 1996 c. 46, s. 16, Sch. 5 para. 4; S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F344S. 113(6) repealed (11.5.2001) by 2001 c. 19, s. 38, Sch. 7 Pt. 4

F345113AA Powers of the reviewing authority.U.K.

(1)On a review under section 113 of this Act of a finding or sentence of a court-martial the reviewing authority has the following powers.

(2)In so far as the review is of a finding of guilt, the authority may—

(a)quash that finding and, if the sentence relates only to that finding, quash the sentence passed in consequence of that finding;

(b)substitute a finding mentioned in subsection (3) below if that finding could have been validly made by the court-martial and the authority is of the opinion that the court-martial must have been satisfied of facts which would justify the making of that finding;

and, where another finding is so substituted, the authority may pass any such sentence (not being, in the opinion of the authority, more severe than the sentence originally passed) open to a court-martial on making such a finding as appears proper.

(3)The findings referred to in subsection (2) above are—

(a)any finding of guilt which could have been validly made by the court-martial on the charge before it;

(b)if the court-martial recorded no finding on a charge alternative to a charge on which the court made the finding being reviewed, a finding of guilt on that alternative charge.

(4)In so far as the review is of a sentence, the authority may quash the sentence or substitute a sentence (not being, in the opinion of the authority, more severe than the sentence originally passed) which was open to the court-martial.

(5)In reviewing a sentence, the authority may—

(a)revoke an order made by the court under section 120A(1) of this Act;

(b)remit in whole or part any punishment awarded by the court;

(c)commute any such punishment for one or more punishments provided by this Act, being less than the punishment commuted.

(6)Where it appears to the reviewing authority that the court-martial, in sentencing the accused, exceeded or erroneously exercised its powers to take other offences into consideration, the authority shall (whether or not substituting a different sentence or remitting or commuting punishment) annul the taking into consideration of the other offence or offences in question and any orders dependent thereon; and where the authority does so the offence or offences shall be treated for all purposes as not having been taken into consideration.

(7)Any substituted finding or sentence, or sentence having effect after the remission or commutation of punishment—

(a)shall be treated for all purposes as having been made or passed by the court;

(b)shall be promulgated and shall have effect as from the date of promulgation.

Textual Amendments

F345Ss. 113, 113AA substituted (1.4.1997 subject to art. 3 of the commencing S.I.) for s. 113 by 1996 c. 46, s. 16, Sch. 5 para. 4; S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

[F346113A Power of reviewing authority to authorise retrial.U.K.

(1)The following provisions of the M31Courts-Martial (Appeals) Act 1968, that is tosay,—

  • section 19,

  • section 20, and

  • Parts II and IV of Schedule 1,

(power of Courts-Martial Appeal Court to authorise retrial and supplementary provisions applicable whenthe power is exercised) shall apply with any necessary modifications in relation to the review by [F347the reviewing authority] under section 113 of this Act of the findings of a court-martial, as theyapply in relation to an appeal to the Courts-Martial Appeal Court.

(2)Any document purporting to be an order or direction made or given by virtue of the foregoing subsectionby the [F348reviewing authority] shall be evidence of the making of the order or the giving of the direction, as thecase may be, and of its contents.]

Textual Amendments

F347Words in s. 113A(1) substituted (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, s. 16, Sch. 5 para. 5(a); S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F348Words in s. 113A(2) substituted (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, s. 16, Sch. 5 para. 5(b); S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

Modifications etc. (not altering text)

C46S. 113A excluded (1.4.1997) by S.I. 1997/172, art. 86

Marginal Citations

F349114. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .U.K.

Textual Amendments

Review of summary findings and awardsU.K.

[F350115 Review of summary findings and awardsU.K.

(1)This section applies where a charge has been dealt with summarily and a finding has been recorded that the charge has been proved.

F351(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)The finding or any punishment awarded (or both) may be reviewed at any F352. . . time.

(4)A review under this section shall be carried out in accordance with the provisions of Queen’s Regulations.

(5)A review under this section may be carried out by—

(a)the Defence Council;

(b)any military, naval or air-force officer superior in command to the officer who dealt summarily with the charge;

(c)a general officer or brigadier appointed by the Defence Council to carry out the review or any class of review which includes the review.

[F353(5A)Where—

(a)the period of fourteen days referred to in subsection (2) of section 83ZE of this Act has expired, and

(b)no appeal has been brought under that section,

the authority carrying out a review under this section may, with the leave of the summary appeal court, refer the finding or any punishment awarded (or both) to that court to be considered by it as on an appeal.

F353(5B)Where an appeal has been brought under section 83ZE of this Act and it appears to the authority carrying out a review under this section, on consideration of matters appearing to him not to have been brought to the notice of the summary appeal court on the appeal, to be expedient to do so, he may, with the leave of the summary appeal court, refer the finding or any punishment awarded (or both), including any finding or punishment substituted or awarded by the summary appeal court, to that court to be co sidered or reconsidered by that court as on an appeal.

F353(5C)A reference to the summary appeal court under subsection (5A) or (5B) of this section shall for the purposes of this Act be treated as an appeal brought by the person to whom the finding or punishment relates against the finding or punishment.

F353(5D)In a case where exceptionally the authority carrying out a review under this section of a finding considers it necessary to do so, the authority may quash that finding and, if the punishment relates only to that finding, quash the punishment awarded in consequence of that finding.

F353(5E)The powers conferred by subsection (5D) of this section are exercisable whether or not the conditions in subsection (5A)(a) and (b) are satisfied.]

(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F351(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

Textual Amendments

F350S. 115 substituted (1.4.1997 subject to art. 3 of the commencing S.I.) by 1996 c. 46, s. 16, Sch. 5 para. 6; S.I. 1997/304, art. 2 (with transitional provisions in Sch. 2)

F351S. 115(2)(6)(7) repealed (2.10.2000) by 2000 c. 4, ss. 25, 27, Sch. 3 para. 19(2)(5), Sch. 4; S.I. 2000/2366, art. 2 (with Sch. para. 13)

F352Word in s. 115(3) repealed (2.10.2000) by 2000 c. 4, ss. 25, 27, Sch. 3 para. 19(3), Sch. 4; S.I. 2000/2366, art. 2 (with Sch. para. 13)

F353S. 115(5A)-(5E) inserted (2.10.2000) by 2000 c. 4, s. 25, Sch. 3 para. 19(4); S.I. 2000/2366, art. 2 (with Sch. para. 13)

Modifications etc. (not altering text)

C47S. 115(5A)(5B) modified (2.10.2000) by S.I. 2000/2371, rule 13(7)

[F354Findings of unfitness to stand trial and insanityU.K.

115AFitness to stand trialU.K.

(1)This section applies where on a trial by court-martial of a person the question arises (at the instance of the defence or otherwise) whether the accused is fit to stand trial.

(2)For the purposes of this Act a person is unfit to stand trial if he is under a disability such that apart from the Criminal Procedure (Insanity) Act 1964 it would constitute a bar to his being tried on indictment in England and Wales.

(3)If, having regard to the nature of the supposed disability, the judge advocate is of opinion that it is expedient to do so and in the interests of the accused, he may postpone consideration of the question of fitness to stand trial until any time up to the opening of the case for the defence.

(4)If, before the question of fitness to stand trial falls to be determined, the court finds the accused not guilty on the charge or each of the charges on which he is being tried, that question shall not be determined.

(5)Subject to subsections (3) and (4) above, the question of fitness to stand trial shall be determined as soon as it arises.

(6)The question of fitness to stand trial shall be determined by the judge advocate sitting alone.

(7)A judge advocate shall not make a determination under subsection (6) above except on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved.

115BFinding that the accused did the act or made the omission chargedU.K.

(1)This section applies where in accordance with section 115A(6) above it is determined by a judge advocate that the accused is unfit to stand trial.

(2)The trial shall not proceed or further proceed but it shall be determined by the court—

(a)on the evidence (if any) already given in the trial, and

(b)on such evidence as may be adduced or further adduced by the prosecution, or adduced by a person appointed by the judge advocate under this section to put the case for the defence,

whether it is satisfied, as respects the charge or each of the charges on which the accused was to be or was being tried, that he did the act or made the omission charged against him as the offence.

(3)If as respects that charge or any of those charges the court is satisfied as mentioned in subsection (2) above, it shall make a finding that the accused did the act or made the omission charged against him.

(4)If as respects that charge or any of those charges the court is not so satisfied, the court shall find the accused not guilty as if on the charge in question the trial had proceeded to a conclusion.

(5)Where the question of fitness to stand trial was determined after arraignment of the accused, the determination under subsection (2) above shall be made by the court-martial by whom he was being tried.

116Findings of insanityU.K.

(1)Where, on the trial of a person by court-martial, the court is satisfied, as respects the charge or any of the charges on which he is being tried, that the accused did the act or made the omission charged against him as the offence but that at the time of that act or omission he was insane, the court shall find that the accused was not guilty of that offence by reason of insanity.

(2)No finding under subsection (1) above shall be made except on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved.

116APowers to deal with person unfit to stand trial or not guilty by reason of insanityU.K.

(1)This section applies where, on a trial of a person by a court-martial—

(a)the accused is found to be unfit to stand trial and to have done the act or made the omission charged against him; or

(b)the accused is found not guilty by reason of insanity.

(2)The court shall make in respect of the accused—

(a)a hospital order (with or without a restriction order);

(b)a supervision order; or

(c)an order for his absolute discharge.

(3)Where—

(a)the offence to which the finding relates is an offence the sentence for which is fixed by law, and

(b)the court has power to make a hospital order,

the court shall make a hospital order with a restriction order (whether or not it would have power to make a restriction order apart from this subsection).

(4)The functions of the court under this section shall be exercised by the judge advocate (or, where subsection (5) below applies, the judicial officer) sitting alone, and section 95(2) and (3) above shall not apply.

(5)Any function of the court under this section exercisable after an adjournment or an appeal shall be exercisable by a judicial officer if—

(a)the court ordering the adjournment, or (as the case may be) the Courts-Martial Appeal Court, so orders; or

(b)the Judge Advocate General so directs.

(6)In this Act—

  • hospital order” has the meaning given in section 37 of the Mental Health Act 1983;

  • restriction order” has the meaning given to it by section 41 of that Act;

  • supervision order” means an order which requires the person in respect of whom it is made (“the supervised person”) to be under the supervision of a person (“the supervising officer”) for a period specified in the order of not more than two years.

116BOrders under the Mental Health ActU.K.

(1)In relation to the making of an order by virtue of subsection (2)(a) of section 116A above, section 37 (hospital orders etc) of the Mental Health Act 1983 (“the 1983 Act”) shall have effect as if—

(a)the reference in subsection (1) to a person being convicted before the Crown Court included a reference to the case where section 116A above applies;

(b)the words after “punishable with imprisonment” and before “or is convicted” were omitted; and

(c)for subsections (4) and (5) there were substituted—

(4)Where an order is made under this section requiring a person to be admitted to a hospital (“a hospital order”), it shall be the duty of the managers of the hospital specified in the order to admit him in accordance with it.

(2)In relation to a case where section 116A above applies but the court has not yet made one of the disposals mentioned in subsection (2) of that section—

(a)section 35 of the 1983 Act (remand to hospital for report on accused’s mental condition) shall have effect with the omission of the words after paragraph (b) in subsection (3);

(b)