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

PART 7 ARREST, SEARCH AND ENTRY

“Service offence”

29.  In Part 3 of AFA 2006 (powers of arrest, search and entry), any reference to a service offence (except the references in section 69) includes an SDA offence.

Powers of arrest

30.—(1) In section 68(3)(a) of AFA 2006 (provision supplementary to power of arrest) the reference to a civilian subject to service discipline is to be read, in relation to an SDA offence, as a reference to a civilian subject to the SDAs.

(2) A person may not be arrested under section 67 of AFA 2006 for an offence mentioned in article 2(4)(d) after the end of six months beginning with the end of the period specified in the community supervision order.

Search on arrest

31.—(1) In section 70 of AFA 2006 (search by service policeman on arrest)—

(a) in subsection (3), the reference to an arrest under section 67 or 69 includes an arrest under section 74 or 74A of AA 1955 or AFA 1955 or section 45 or 45A of NDA 1957;

(b) in subsection (4), the reference to a person arrested under section 67, 69, 110, 111 or 303 includes a person arrested under section 74, 74A or 75K of AA 1955 or AFA 1955 or section 45, 45A or 47L of NDA 1957.

(2) Section 71(4) of AFA 2006 (power to order or authorise search of arrested person for things subject to search) applies (as well as in the case mentioned in section 71(2)) in any case where—

(a) a person (“the SDA arrested person”) has been arrested under section 74 or 75K of AA 1955 or AFA 1955 or section 45 or 47L of NDA 1957 by a person other than a service policeman; and

(b) the SDA arrested person’s commanding officer has reasonable grounds for believing as mentioned in section 71(2)(b) of AFA 2006.

(3) Where section 71(4) of AFA 2006 applies by virtue of paragraph (2) above, references in section 71(4), (5) and (6) to the arrested person are to be read as to the SDA arrested person, and section 71(8) does not apply.

(4) Where, immediately before commencement, an order or authorisation under section 10(5) of AFA 2001 has effect (order for or authorisation of search of arrested person), the order or authorisation has effect after commencement as if given under section 71(4) of AFA 2006.

(5) In section 73(2) of AFA 2006 (seizure and retention after search upon arrest) the reference to arrest under section 67 or 69 includes arrest under section 74 or 74A of AA 1955 or AFA 1955 or section 45 or 45A of NDA 1957.

(6) Where, immediately before commencement, a person was under section 10(10) of AFA 2001 retaining a seized item, he may continue to retain it after commencement if he has reasonable grounds for believing as mentioned in section 73(1) of AFA 2006.

(7) Where, immediately before commencement, a person was under section 10(11) of AFA 2001 retaining a seized item, he may continue to retain it after commencement if he has reasonable grounds for believing as mentioned in section 73(2) of AFA 2006 (as modified by this Part).

(8) In section 74 of AFA 2006 (power to make provision conferring power to search premises at which person arrested), the reference to section 67 includes a reference to section 74 of AA 1955 or AFA 1955 or section 45 of NDA 1957.

Stop and search

32.—(1) In sections 75(4)(b), 76(6)(b) and 77 of AFA 2006 (provisions relating to powers of stop and search)—

(a) any reference to an offence under section 42 of that Act includes an SDA civil offence;

(b) any reference to the corresponding offence under the law of England and Wales includes the corresponding civil offence.

(2) Where, immediately before commencement, an order or authorisation under section 4(1) of AFA 2001 has effect (order for or authorisation of stop and search), the order or authorisation has effect after commencement as if given under section 76(1) of AFA 2006.

(3) In section 77(9) of AFA 2006 (definitions relating to stop and search), the reference to a person subject to service law is to be read, in relation to an SDA civil offence, as a reference to a person subject to military law, air-force law or NDA 1957.

Powers of entry, search and seizure

33.—(1) Where an application has been made under section 5(1) of AFA 2001 (application for warrant authorising entry and search of premises) and has not been granted, refused or withdrawn before commencement, the application has effect after commencement as if made under section 83(1)(a) of AFA 2006.

(2) Where, immediately before commencement, a warrant issued under section 5(1) of AFA 2001 has effect, the warrant has effect after commencement as if issued under section 83(1) of AFA 2006.

(3) Where, immediately before commencement, a person was under section 5(3) or 7(3) of AFA 2001 retaining a seized item, he may continue to retain it after commencement (subject, in the case of seizure under section 7(3) of AFA 2001, to section 89 of AFA 2006 as modified by this article).

(4) In section 84(2)(a) of AFA 2006 (authorisation of entry and search)—

(a) the reference to an offence under section 42 of that Act includes an SDA civil offence;

(b) the reference to the corresponding offence under the law of England and Wales includes the corresponding civil offence.

(5) Where, immediately before commencement, an authorisation under section 7(1) of AFA 2001 has effect (authorisation of entry and search), the authorisation has effect after commencement—

(a) if given to a service policeman, as if given under section 87(1) of AFA 2006;

(b) otherwise, as if given under section 88(1) of that Act.

(6) In section 89 of AFA 2006 (review by judge advocate of certain searches), the reference to a search under section 87 or 88 of that Act includes a search under section 7 of AFA 2001 as respects which no request for review has been made under section 8 of that Act.

(7) Where a review has been requested under section 8 of AFA 2001 and the review has not been completed before commencement, the request has effect after commencement as if made under section 89(1) of AFA 2006.

(8) An authorisation under section 9(7) of AFA 2001 (entry and search for the purpose of arrest etc) of the exercise of the powers conferred by section 9(1)(a) of that Act on a service policeman has effect after commencement as if given under section 91(1) of AFA 2006.

(9) An authorisation under section 9(7) of AFA 2001 of the exercise of the powers conferred by section 9(1)(b) of that Act on a service policeman has effect after commencement as if given under section 91(5) of AFA 2006.

(10) In section 92 of AFA 2006 (power to make provision conferring powers of entry and search after arrest), the reference to section 67 includes a reference to section 74 of AA 1955 or AFA 1955 or section 45 of NDA 1957.

(11) In section 93 of AFA 2006 (power to make provision conferring power of seizure etc), the reference to any power of retention conferred by or under Part 3 of that Act includes any power of retention conferred by article 31(6) or (7) or paragraph (3).

(12) In section 94 of AFA 2006 (property in possession of service police or CO) any reference to seizure under Part 3 of that Act includes seizure under Part 2 of AFA 2001.