The Armed Forces Act 2006 (Transitional Provisions etc) Order 2009

1Citation and commencement

2Interpretation

3SDA offences to be dealt with under this Order

4Offences triable by civilian court

5“Service offence” in AFA 2006 not to include offences committed before commencement

PART 2LIABILITY FOR SDA OFFENCES

6Liability for SDA offences

7Punishment may not be more severe than maximum court-martial punishment

8Civilian offenders

PART 3CERTAIN ACTS BEFORE COMMENCEMENT

9Offence incomplete at commencement

10Course of conduct carried on over commencement

11Conduct at a time unknown

PART 4JURISDICTION

12Jurisdiction of the Court Martial

13Jurisdiction of the Service Civilian Court

14Charges capable of being heard summarily

15Offences that may be dealt with at a summary hearing

16Charges in respect of SDA offences that may be heard summarily only with permission or by senior officer

PART 5TIME LIMITS FOR COMMENCING PROCEEDINGS ETC

17No charge to be brought where SDA time limit for trial expired before commencement etc

18General time limits for charging servicemen or former servicemen with SDA offences

19Time limits for charging civilian formerly subject to SDAs

20Time limit for charging civilian formerly subject to service discipline with SDA offence

21Time limit for charging SDA offence of failing to comply with requirement imposed on release from custody

22Time limits for charging RFA offences

23False statements made on enlistment

24Breach of community supervision order

PART 6DOUBLE JEOPARDY

25Saving of existing bars to service proceedings

26Saving of existing bars to civilian court proceedings

27Application of AFA 2006 ss. 63 and 64

28Application of AFA 2006 s. 66

PART 7ARREST, SEARCH AND ENTRY

29“Service offence”

30Powers of arrest

31Search on arrest

32Stop and search

33Powers of entry, search and seizure

CHAPTER 1General

34“Service offence”

CHAPTER 2Custody without charge

35Limitations on custody without charge of person arrested before commencement

36Authorisation by CO of custody without charge

37Extension by judge advocate of custody without charge

38Persons arrested while in custody

39Custody without charge: other cases

CHAPTER 3Custody after charge

40Custody after charge

41Arrest after charge

PART 9INVESTIGATION, CHARGING AND MODE OF TRIAL

42“Service offence”, “Schedule 2 offence”

43Duties and powers of commanding officers in relation to allegations etc

44Charges preferred by prosecuting authority: allocation for Court Martial trial

45Effect of time limits for court-martial trial

46Charges reported to commanding officer: allocation for summary hearing

47Exceptions to allocation for summary hearing

48Effect of time limits for trial in relation to summary hearing

49Charges allocated for summary hearing: restriction on CO's powers in certain cases

50Deemed referrals under AFA 2006 s. 116(3)

51Part of a case referred back under SDAs: power of CO to charge etc

52Charges directed to be tried by a Standing Civilian Court

53Effect of time limits for court-martial trial in relation to SCC

PART 10SUMMARY DEALING

CHAPTER 1Proceedings in progress at commencement

54Summary hearing where court-martial trial declined before commencement

55Powers of punishment where finding reached before commencement

56Deemed disrating

57Approval of summary punishment (NDA cases)

58Warrant punishments

CHAPTER 2Modifications of AFA 2006 for charge current at commencement

59Applications for purposes of AFA 2006 made before commencement

60Permissions for purposes of AA 1955 or AFA 1955 to award extended detention

61Certain consequences of election for court-martial trial

CHAPTER 3Activation of SDA suspended sentence of service detention following civilian conviction

62Activation where application for approval made before commencement

CHAPTER 4The Summary Appeal Court

63Right of appeal

64Appeal brought but not heard before commencement

65Officers and warrant officers ineligible for membership of court

66Punishments substituted for punishments imposed under AA 1955

67Punishments substituted for punishments imposed under AFA 1955

68Punishments substituted for punishments imposed under NDA 1957

69Appeals from decisions of a summary appeal court

CHAPTER 5Review of summary findings and punishments

70Power to review summary findings and punishments

71Power to complete review begun before commencement

72Powers on a review carried out or completed under AFA 2006

73Powers where review completed before commencement

PART 11TRIAL BY COURT MARTIAL

CHAPTER 1Trial by Court Martial

74Pre-commencement selection of members of Court Martial

75Eligibility to be member of the court

76Arraignment before commencement

77Power to convict of alternative offences

78Sentencing powers where election for Court Martial trial

79Appeals against pre-commencement orders restricting publicity etc

CHAPTER 2Unfitness to stand trial and insanity

80Continuation of hospital orders etc made before commencement

81Remission for trial

82Finding that defendant who is unfit to stand trial did the act or made the omission charged

83Powers to make hospital orders etc

CHAPTER 3Variation of court-martial sentence

84Variation of court-martial sentence

PART 12SENTENCING POWERS IN RELATION TO SDA OFFENCES

CHAPTER 1Consecutive sentences

85Consecutive custodial sentences and consecutive service detention

CHAPTER 2Young offenders

86Offenders under 18 convicted of certain serious SDA offences: power to detain for specified period

87Offenders under 18: detention and training orders

CHAPTER 3Mandatory etc sentences

88Mandatory life imprisonment etc

89Sentences required by SDAs

CHAPTER 4Court orders other than sentences

90Service restraining orders

91Recognizances

CHAPTER 5Miscellaneous

92Power of Supreme Court to make service compensation order

PART 13ACTIVATION OF SUSPENDED SENTENCES

CHAPTER 1Interpretation

93Suspended sentences

CHAPTER 2Activation of suspended SDA sentence by the Court Martial

94Activation of suspended SDA sentence of imprisonment

95Activation of suspended SDA sentence of service detention on conviction by Court Martial

96Activation of suspended NDA 1957 sentence of service detention following conviction by another court or a CO

CHAPTER 3Activation of suspended NDA 1957 sentence of service detention by CO or SAC

97Activation by CO

98Powers of SAC

99SAC powers where suspended sentence of more than 90 days

CHAPTER 4Consecutive activated sentences

100Activated SDA sentence of imprisonment

101Activated sentence of service detention

PART 14SENTENCING PRINCIPLES AND PROCEDURES

102Sentencing principles and procedures: references to “service offence”, “service custody”, etc

102ASeriousness of offence with terrorist connection

103Increase in sentence for racial or religious aggravation

104Limit on combined term of service detention

105Limit on combined term: supplementary

106Crediting of time in service custody

Part 14AReview of sentence proceedings

106AReview of sentence proceedings

PART 15APPEALS AND REFERENCES TO THE COURT MARTIAL APPEAL COURT

107Interpretation

108Right of appeal against conviction or sentence by court-martial

109Right of appeal against activation of suspended SDA sentence by Court Martial or court-martial

110Application for leave to appeal against sentence by court-martial where previous conviction set aside

111Quashing of conviction by court-martial

112Power to re-sentence when some but not all convictions successfully appealed

113Substitution of conviction on different charge otherwise than after guilty plea

114Substitution of conviction on different charge after guilty plea

115Variation of conviction so as to attract different sentence

116Effect of appeal, or application for leave to appeal, against sentence

117Powers of Appeal Court on appeal against sentence

118Term of sentence

119Retrial authorised by Appeal Court

120Appeal against finding of not guilty by reason of insanity

121Appeal against finding of unfitness to stand trial

122Appeal against order made in cases of insanity or unfitness to stand trial

123Costs of successful appeal

124Reference of cases by Service authorities

125Provision of record of proceedings of court-martial

126Appeal to House of Lords or Supreme Court

127Duties of registrar with respect to appeals etc

128Saving for prerogative

129Review of unduly lenient sentence for SDA offence

130Compensation for miscarriages of justice

Part 15AAppeals against review of sentence

130AAppeals against review of sentence

PART 16STANDING CIVILIAN COURTS AND THE SERVICE CIVILIAN COURT

131Constitution of the Service Civilian Court

132Arraignment before a Standing Civilian Court

133Maximum fine for SDA civil offence

134Appeal against conviction or sentence by Standing Civilian Court

PART 17SERVICE AND EFFECT OF SENTENCES IN RESPECT OF SDA OFFENCES

CHAPTER 1General

135General saving for SDA sentences

CHAPTER 2Custodial sentences and detention

136Committal orders under NDA 1957: custodial sentences

137Committal orders under NDA 1957: sentences of service detention

138Commencement of SDA sentence of service detention awarded by CO: sentence not running at commencement

139Commencement of SDA sentence of service detention awarded by CO: sentence running at commencement

140Commencement of consecutive SDA sentence of service detention awarded by CO before commencement

141Commencement of sentence of detention activated by CO under NDA 1957 before commencement

142Commencement of SDA sentence of service detention awarded by CO after commencement

143Commencement of sentence of detention activated by CO under NDA 1957 after commencement

144Commencement of SDA sentence of service detention activated by CO under AFA 2006

145Effect of custodial sentence or detention on rank or rate

146Service of SDA sentence of service detention

147Detention in service custody following passing of custodial sentence etc in respect of SDA offence

148Removal to England and Wales following passing of custodial sentence etc in respect of SDA offence

149Duty to receive and detain prisoners

150Service custody etc rules

151Duration of sentences: persons unlawfully at large or on temporary release

152Remission of certain sentences on passing of custodial sentence etc

153Power of service policeman to arrest person unlawfully at large

154Sentences passed by civilian courts

CHAPTER 3Financial penalties

155Effect of appeal on SDA service compensation order, etc

156Review of stoppages and SDA compensation order, etc

157Power to allow payment of fine or stoppages by instalments

158Imprisonment in default of payment of fine

CHAPTER 4Second class for conduct

159Second class for conduct

CHAPTER 5Restitution orders

160Restitution orders

CHAPTER 6SDA orders for conditional discharge

161SDA orders for conditional discharge

162Order of court-martial: conviction of further offence by Court Martial

163Order of any SDA court: conviction of further offence by Service Civilian Court

164Order of Standing Civilian Court: conviction of further offence by Court Martial

165Appeals against re-sentence, etc

CHAPTER 7Community supervision orders

166Community supervision orders

167Savings in respect of community supervision orders: provisions of SDAs

168Offence of failure to comply to be treated as service offence for certain purposes

169Community supervision order made by court-martial: conviction of further offence by Court Martial

170CSO made by any SDA court: conviction of further offence by Service Civilian Court

171CSO made by Standing Civilian Court: conviction of further offence by Court Martial

172Restriction on other powers of punishment in respect of failure to comply with order

173Appeals against re-sentence, etc

174Savings of regulations

CHAPTER 8Supplementary provisions relating to trial of civilians

175Service of documents

PART 18DISCIPLINE: MISCELLANEOUS

176Findings and sentences passed by reviewing authority

177Testing for alcohol and drugs

178Offences in relation to service courts

179Witness anonymity orders

180Arrest by civilian police under warrant

181Arrest by civilian police of deserters etc

182Remand by civil court

183Arrest of persons unlawfully at large

184The Criminal Cases Review Commission

185Financial penalty enforcement orders

186Evidential burden as respects excuses

187Local probation boards

188Judge advocates

PART 19ENLISTMENT, TERMS OF SERVICE ETC

189Interpretation

191Terms and conditions of enlistment and service

192Desertion and absence without leave: forfeiture of service etc

193Discharge etc from the regular forces and transfer to the reserve forces

194Membership of reserve force

195Term of compulsory service

196Complaints to employment tribunals etc

PART 20FORFEITURES AND DEDUCTIONS

197Permitted forfeitures and deductions

198Forfeitures and deductions permitted, ordered or authorised before commencement

PART 21MISCELLANEOUS

199Offences punishable by civilian courts

200Evidence in proceedings before civilian courts

201Trial by civil courts of offences committed before commencement

202Affidavits and declarations

203Protection of children of service families

204Service of process

205Minor and consequential amendments and repeals

206Transitory provisions

SCHEDULE 1Minor and consequential amendments and repeals

1Debts (Deceased Servicemen etc) Act 1893

2Criminal Evidence Act 1898

3Army and Air Force (Women's Service) Act 1948

4Prison Act 1952

5Emergency Laws (Miscellaneous Provisions) Act 1953

6Registration of Births, Deaths and Marriages (Special Provisions) Act 1957

7Coroners Act (Northern Ireland) 1959

8Criminal Justice Act 1961

9Parliamentary Commissioner Act 1967

10Criminal Justice Act 1967

11Civil Evidence Act 1968

12Civil Evidence Act (Northern Ireland) 1971

13Juries Act 1974

14Rehabilitation of Offenders Act 1974

15Bail Act 1976

16Race Relations Act 1976

17Rehabilitation of Offenders (Northern Ireland) Order 1978

18Magistrates' Courts Act 1980

19Public Passenger Vehicles Act 1981

20Contempt of Court Act 1981

21Senior Courts Act 1981

22Armed Forces Act 1981

23Criminal Justice Act 1982

24Representation of the People Act 1983

25Mental Health Act 1983

26Repatriation of Prisoners Act 1984

27Inheritance Tax Act 1984

28Police and Criminal Evidence Act 1984

29Coroners Act 1988

30Road Traffic Act 1988

31Police and Criminal Evidence (Northern Ireland) Order 1989

32Sexual Offences (Amendment) Act 1992

33Criminal Justice and Public Order Act 1994

34Goods Vehicles (Licensing of Operators) Act 1995

35Criminal Procedure (Scotland) Act 1995

36Disability Discrimination Act 1995

37Criminal Procedure and Investigations Act 1996

38Armed Forces Act 1996

39Social Security (Recovery of Benefits) Act 1997

40Crime (Sentences) Act 1997

41Police Act 1997

42Social Security (Recovery of Benefits) (Northern Ireland) Order 1997

43Crime and Disorder Act 1998

44Youth Justice and Criminal Evidence Act 1999

45Powers of Criminal Courts (Sentencing) Act 2000 and related provisions

46Freedom of Information Act 2000

47Criminal Justice and Court Services Act 2000

48International Criminal Court Act 2001

49Armed Forces Act 2001

50Anti-terrorism, Crime and Security Act 2001

51Proceeds of Crime Act 2002

52Sexual Offences Act 2003

53Criminal Justice Act 2003

54Domestic Violence, Crime and Victims Act 2004

55Human Tissue Act 2004

56Gambling Act 2005

SCHEDULE 2Transitory provisions

2Punishments available to Service Civilian Court

3Powers of Crown Court in relation to orders made by Service Civilian Court

4Testing for alcohol and drugs

5Age at which imprisonment available

6Mandatory custody for life

7Discretionary custody for life

8Custody for life where custodial sentence would have been required by SDAs

9Power to impose detention in a young offender institution

9ALife and extended sentences: offenders aged at least 18 but under 21

10Interaction of detention in a young offender institution with detention and training order

11Consecutive sentences

12Restriction on imposing custodial sentence on unrepresented offender

13Crediting of time in service custody

14Re-sentencing powers

15Sentences passed by civilian courts

16Meaning of “custodial sentence”

17Notification requirements under Counter-Terrorism Act 2008

18The Supreme Court

2009 No. 1059

Defence

The Armed Forces Act 2006 (Transitional Provisions etc) Order 2009

Made23rd April 2009

Laid before Parliament27th April 2009

Coming into force

provisions mentioned in article 1(2) and (3)(a)24th April 2009

for all other purposes31st October 2009

The Secretary of State, in exercise of the powers conferred by section 380 of the Armed Forces Act 2006 M1 and paragraph 13 of Schedule 6 to the Counter-Terrorism Act 2008 M2, makes the following Order: