The Armed Forces Act 2006 (Transitional Provisions etc) Order 2009 No. 1059 xmlns:atom="http://www.w3.org/2005/Atom"
Introductory Text
PART 1 GENERAL
1.Citation and commencement
2.Interpretation
3.SDA offences to be dealt with under this Order
4.Offences triable by civilian court
5.“Service offence” in AFA 2006 not to include offences committed before commencement
PART 2 LIABILITY FOR SDA OFFENCES
6.Liability for SDA offences
7.Punishment may not be more severe than maximum court-martial punishment
8.Civilian offenders
PART 3 CERTAIN ACTS BEFORE COMMENCEMENT
9.Offence incomplete at commencement
10.Course of conduct carried on over commencement
11.Conduct at a time unknown
PART 4 JURISDICTION
12.Jurisdiction of the Court Martial
13.Jurisdiction of the Service Civilian Court
14.Charges capable of being heard summarily
15.Offences that may be dealt with at a summary hearing
16.Charges in respect of SDA offences that may be heard summarily only with permission or by senior officer
PART 5 TIME LIMITS FOR COMMENCING PROCEEDINGS ETC
17.No charge to be brought where SDA time limit for trial expired before commencement etc
18.General time limits for charging servicemen or former servicemen with SDA offences
19.Time limits for charging civilian formerly subject to SDAs
20.Time limit for charging civilian formerly subject to service discipline with SDA offence
21.Time limit for charging SDA offence of failing to comply with requirement imposed on release from custody
22.Time limits for charging RFA offences
23.False statements made on enlistment
24.Breach of community supervision order
PART 6 DOUBLE JEOPARDY
25.Saving of existing bars to service proceedings
26.Saving of existing bars to civilian court proceedings
27.Application of AFA 2006 ss. 63 and 64
28.Application of AFA 2006 s. 66
PART 7 ARREST, SEARCH AND ENTRY
29.“Service offence”
30.Powers of arrest
31.Search on arrest
32.Stop and search
33.Powers of entry, search and seizure
PART 8 CUSTODY
CHAPTER 1 General
34.“Service offence”
CHAPTER 2 Custody without charge
35.Limitations on custody without charge of person arrested before commencement
36.Authorisation by CO of custody without charge
37.Extension by judge advocate of custody without charge
38.Persons arrested while in custody
39.Custody without charge: other cases
CHAPTER 3 Custody after charge
40.Custody after charge
41.Arrest after charge
PART 9 INVESTIGATION, CHARGING AND MODE OF TRIAL
42.“Service offence”, “Schedule 2 offence”
43.Duties and powers of commanding officers in relation to allegations etc
44.Charges preferred by prosecuting authority: allocation for Court Martial trial
45.Effect of time limits for court-martial trial
46.Charges reported to commanding officer: allocation for summary hearing
47.Exceptions to allocation for summary hearing
48.Effect of time limits for trial in relation to summary hearing
49.Charges allocated for summary hearing: restriction on CO’s powers in certain cases
50.Deemed referrals under AFA 2006 s. 116(3)
51.Part of a case referred back under SDAs: power of CO to charge etc
52.Charges directed to be tried by a Standing Civilian Court
53.Effect of time limits for court-martial trial in relation to SCC
PART 10 SUMMARY DEALING
CHAPTER 1 Proceedings in progress at commencement
54.Summary hearing where court-martial trial declined before commencement
55.Powers of punishment where finding reached before commencement
56.Deemed disrating
57.Approval of summary punishment (NDA cases)
58.Warrant punishments
CHAPTER 2 Modifications of AFA 2006 for charge current at commencement
59.Applications for purposes of AFA 2006 made before commencement
60.Permissions for purposes of AA 1955 or AFA 1955 to award extended detention
61.Certain consequences of election for court-martial trial
CHAPTER 3 Activation of SDA suspended sentence of service detention following civilian conviction
62.Activation where application for approval made before commencement
CHAPTER 4 The Summary Appeal Court
63.Right of appeal
64.Appeal brought but not heard before commencement
65.Officers and warrant officers ineligible for membership of court
66.Punishments substituted for punishments imposed under AA 1955
67.Punishments substituted for punishments imposed under AFA 1955
68.Punishments substituted for punishments imposed under NDA 1957
69.Appeals from decisions of a summary appeal court
CHAPTER 5 Review of summary findings and punishments
70.Power to review summary findings and punishments
71.Power to complete review begun before commencement
72.Powers on a review carried out or completed under AFA 2006
73.Powers where review completed before commencement
PART 11 TRIAL BY COURT MARTIAL
CHAPTER 1 Trial by Court Martial
74.Pre-commencement selection of members of Court Martial
75.Eligibility to be member of the court
76.Arraignment before commencement
77.Power to convict of alternative offences
78.Sentencing powers where election for Court Martial trial
79.Appeals against pre-commencement orders restricting publicity etc
CHAPTER 2 Unfitness to stand trial and insanity
80.Continuation of hospital orders etc made before commencement
81.Remission for trial
82.Finding that defendant who is unfit to stand trial did the act or made the omission charged
83.Powers to make hospital orders etc
CHAPTER 3 Variation of court-martial sentence
84.Variation of court-martial sentence
PART 12 SENTENCING POWERS IN RELATION TO SDA OFFENCES
CHAPTER 1 Consecutive sentences
85.Consecutive custodial sentences and consecutive service detention
CHAPTER 2 Young offenders
86.Offenders under 18 convicted of certain serious SDA offences: power to detain for specified period
87.Offenders under 18: detention and training orders
CHAPTER 3 Mandatory etc sentences
88.Mandatory life imprisonment etc
89.Sentences required by SDAs
CHAPTER 4 Court orders other than sentences
90.Service restraining orders
91.Recognizances
CHAPTER 5 Miscellaneous
92.Power of Supreme Court to make service compensation order
PART 13 ACTIVATION OF SUSPENDED SENTENCES
CHAPTER 1 Interpretation
93.Suspended sentences
CHAPTER 2 Activation of suspended SDA sentence by the Court Martial
94.Activation of suspended SDA sentence of imprisonment
95.Activation of suspended SDA sentence of service detention on conviction by Court Martial
96.Activation of suspended NDA 1957 sentence of service detention following conviction by another court or a CO
CHAPTER 3 Activation of suspended NDA 1957 sentence of service detention by CO or SAC
97.Activation by CO
98.Powers of SAC
99.SAC powers where suspended sentence of more than 90 days
CHAPTER 4 Consecutive activated sentences
100.Activated SDA sentence of imprisonment
101.Activated sentence of service detention
PART 14 SENTENCING PRINCIPLES AND PROCEDURES
102.Sentencing principles and procedures: references to “service offence”, “service custody”, etc
103.Increase in sentence for racial or religious aggravation
104.Limit on combined term of service detention
105.Limit on combined term: supplementary
106.Crediting of time in service custody
PART 15 APPEALS AND REFERENCES TO THE COURT MARTIAL APPEAL COURT
107.Interpretation
108.Right of appeal against conviction or sentence by court-martial
109.Right of appeal against activation of suspended SDA sentence by Court Martial or court-martial
110.Application for leave to appeal against sentence by court-martial where previous conviction set aside
111.Quashing of conviction by court-martial
112.Power to re-sentence when some but not all convictions successfully appealed
113.Substitution of conviction on different charge otherwise than after guilty plea
114.Substitution of conviction on different charge after guilty plea
115.Variation of conviction so as to attract different sentence
116.Effect of appeal, or application for leave to appeal, against sentence
117.Powers of Appeal Court on appeal against sentence
118.Term of sentence
119.Retrial authorised by Appeal Court
120.Appeal against finding of not guilty by reason of insanity
121.Appeal against finding of unfitness to stand trial
122.Appeal against order made in cases of insanity or unfitness to stand trial
123.Costs of successful appeal
124.Reference of cases by Service authorities
125.Provision of record of proceedings of court-martial
126.Appeal to House of Lords or Supreme Court
127.Duties of registrar with respect to appeals etc
128.Saving for prerogative
129.Review of unduly lenient sentence for SDA offence
130.Compensation for miscarriages of justice
PART 16 STANDING CIVILIAN COURTS AND THE SERVICE CIVILIAN COURT
131.Constitution of the Service Civilian Court
132.Arraignment before a Standing Civilian Court
133.Maximum fine for SDA civil offence
134.Appeal against conviction or sentence by Standing Civilian Court
PART 17 SERVICE AND EFFECT OF SENTENCES IN RESPECT OF SDA OFFENCES
CHAPTER 1 General
135.General saving for SDA sentences
CHAPTER 2 Custodial sentences and detention
136.Committal orders under NDA 1957: custodial sentences
137.Committal orders under NDA 1957: sentences of service detention
138.Commencement of SDA sentence of service detention awarded by CO: sentence not running at commencement
139.Commencement of SDA sentence of service detention awarded by CO: sentence running at commencement
140.Commencement of consecutive SDA sentence of service detention awarded by CO before commencement
141.Commencement of sentence of detention activated by CO under NDA 1957 before commencement
142.Commencement of SDA sentence of service detention awarded by CO after commencement
143.Commencement of sentence of detention activated by CO under NDA 1957 after commencement
144.Commencement of SDA sentence of service detention activated by CO under AFA 2006
145.Effect of custodial sentence or detention on rank or rate
146.Service of SDA sentence of service detention
147.Detention in service custody following passing of custodial sentence etc in respect of SDA offence
148.Removal to England and Wales following passing of custodial sentence etc in respect of SDA offence
149.Duty to receive and detain prisoners
150.Service custody etc rules
151.Duration of sentences: persons unlawfully at large or on temporary release
152.Remission of certain sentences on passing of custodial sentence etc
153.Power of service policeman to arrest person unlawfully at large
154.Sentences passed by civilian courts
CHAPTER 3 Financial penalties
155.Effect of appeal on SDA service compensation order, etc
156.Review of stoppages and SDA compensation order, etc
157.Power to allow payment of fine or stoppages by instalments
158.Imprisonment in default of payment of fine
CHAPTER 4 Second class for conduct
159.Second class for conduct
CHAPTER 5 Restitution orders
160.Restitution orders
CHAPTER 6 SDA orders for conditional discharge
161.SDA orders for conditional discharge
162.Order of court-martial: conviction of further offence by Court Martial
163.Order of any SDA court: conviction of further offence by Service Civilian Court
164.Order of Standing Civilian Court: conviction of further offence by Court Martial
165.Appeals against re-sentence, etc
CHAPTER 7 Community supervision orders
166.Community supervision orders
167.Savings in respect of community supervision orders: provisions of SDAs
168.Offence of failure to comply to be treated as service offence for certain purposes
169.Community supervision order made by court-martial: conviction of further offence by Court Martial
170.CSO made by any SDA court: conviction of further offence by Service Civilian Court
171.CSO made by Standing Civilian Court: conviction of further offence by Court Martial
172.Restriction on other powers of punishment in respect of failure to comply with order
173.Appeals against re-sentence, etc
174.Savings of regulations
CHAPTER 8 Supplementary provisions relating to trial of civilians
175.Service of documents
PART 18 DISCIPLINE: MISCELLANEOUS
176.Findings and sentences passed by reviewing authority
177.Testing for alcohol and drugs
178.Offences in relation to service courts
179.Witness anonymity orders
180.Arrest by civilian police under warrant
181.Arrest by civilian police of deserters etc
182.Remand by civil court
183.Arrest of persons unlawfully at large
184.The Criminal Cases Review Commission
185.Financial penalty enforcement orders
186.Evidential burden as respects excuses
187.Local probation boards
188.Judge advocates
PART 19 ENLISTMENT, TERMS OF SERVICE ETC
189.Interpretation
190.Enlistment
191.Terms and conditions of enlistment and service
192.Desertion and absence without leave: forfeiture of service etc
193.Discharge etc from the regular forces and transfer to the reserve forces
194.Membership of reserve force
195.Term of compulsory service
196.Complaints to employment tribunals etc
PART 20 FORFEITURES AND DEDUCTIONS
197.Permitted forfeitures and deductions
198.Forfeitures and deductions permitted, ordered or authorised before commencement
PART 21 MISCELLANEOUS
199.Offences punishable by civilian courts
200.Evidence in proceedings before civilian courts
201.Trial by civil courts of offences committed before commencement
202.Affidavits and declarations
203.Protection of children of service families
204.Service of process
205.Minor and consequential amendments and repeals
206.Transitory provisions
Signature
SCHEDULE 1
Minor and consequential amendments and repeals
1.Debts (Deceased Servicemen etc) Act 1893
2.Criminal Evidence Act 1898
3.Army and Air Force (Women’s Service) Act 1948
4.Prison Act 1952
5.Emergency Laws (Miscellaneous Provisions) Act 1953
6.Registration of Births, Deaths and Marriages (Special Provisions) Act 1957
7.Coroners Act (Northern Ireland) 1959
8.Criminal Justice Act 1961
9.Parliamentary Commissioner Act 1967
10.Criminal Justice Act 1967
11.Civil Evidence Act 1968
12.Civil Evidence Act (Northern Ireland) 1971
13.Juries Act 1974
14.Rehabilitation of Offenders Act 1974
15.Bail Act 1976
16.Race Relations Act 1976
17.Rehabilitation of Offenders (Northern Ireland) Order 1978
18.Magistrates’ Courts Act 1980
19.Public Passenger Vehicles Act 1981
20.Contempt of Court Act 1981
21.Senior Courts Act 1981
22.Armed Forces Act 1981
23.Criminal Justice Act 1982
24.Representation of the People Act 1983
25.Mental Health Act 1983
26.Repatriation of Prisoners Act 1984
27.Inheritance Tax Act 1984
28.Police and Criminal Evidence Act 1984
29.Coroners Act 1988
30.Road Traffic Act 1988
31.Police and Criminal Evidence (Northern Ireland) Order 1989
32.Sexual Offences (Amendment) Act 1992
33.Criminal Justice and Public Order Act 1994
34.Goods Vehicles (Licensing of Operators) Act 1995
35.Criminal Procedure (Scotland) Act 1995
36.Disability Discrimination Act 1995
37.Criminal Procedure and Investigations Act 1996
38.Armed Forces Act 1996
39.Social Security (Recovery of Benefits) Act 1997
40.Crime (Sentences) Act 1997
41.Police Act 1997
42.Social Security (Recovery of Benefits) (Northern Ireland) Order 1997
43.Crime and Disorder Act 1998
44.Youth Justice and Criminal Evidence Act 1999
45.Powers of Criminal Courts (Sentencing) Act 2000
46.Freedom of Information Act 2000
47.Criminal Justice and Court Services Act 2000
48.International Criminal Court Act 2001
49.Armed Forces Act 2001
50.Anti-terrorism, Crime and Security Act 2001
51.Proceeds of Crime Act 2002
52.Sexual Offences Act 2003
53.Criminal Justice Act 2003
54.Domestic Violence, Crime and Victims Act 2004
55.Human Tissue Act 2004
56.Gambling Act 2005
SCHEDULE 2
Transitory provisions
1.Definitions
2.Punishments available to Service Civilian Court
3.Powers of Crown Court in relation to orders made by Service Civilian Court
4.Testing for alcohol and drugs
5.Age at which imprisonment available
6.Mandatory custody for life
7.Discretionary custody for life
8.Custody for life where custodial sentence would have been required by SDAs
9.Power to impose detention in a young offender institution
10.Interaction of detention in a young offender institution with detention and training order
11.Consecutive sentences
12.Restriction on imposing custodial sentence on unrepresented offender
13.Crediting of time in service custody
14.Re-sentencing powers
15.Sentences passed by civilian courts
16.Meaning of “custodial sentence”
17.Notification requirements under Counter-Terrorism Act 2008
18.The Supreme Court
Explanatory Note