Armed Forces Act 2001 (c. 19)

(The document as of February, 2008)

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(a) has been arrested under any of the services Acts, and

(b) is being held in military, air-force or naval custody without being charged,

which is equivalent to that made by any provision of section 18 of the 1984 Act (entry and search after arrest), subject to such modifications as the Secretary of State thinks fit.

(2) The Secretary of State may by order make provision, in relation to--

(a) a service policeman who is on any premises in the exercise of any power conferred by or under this Part, or

(b) any power of seizure conferred by or under this Part,

which is equivalent to that made by any provision of sections 19 to 21 of the 1984 Act (which relate to seizure) or section 22(1) to (4) of that Act (power to retain property seized), subject to such modifications as the Secretary of State thinks fit.

(3) In subsection (1) "charged"--

(a) in relation to a person held in military custody, is to be construed in accordance with section 75(4) of the Army Act 1955 (c. 18),

(b) in relation to a person held in air-force custody, is to be construed in accordance with section 75(4) of the Air Force Act 1955 (c. 19), and

(4) No provision made by virtue of this section affects the power conferred by section 12.

12 Property in possession of service police or commanding officer

(1) The Secretary of State may by regulations make provision with respect to the disposal of property which has come into the possession of a service policeman or a person's commanding officer in connection with the investigation of an offence.

(2) The regulations may, in particular--

(a) enable a court-martial, Standing Civilian Court or judicial officer to make an order for the delivery of the property to the person appearing to the court or judicial officer to be the owner of the property or, if the owner cannot be ascertained, to make such order with respect to the property as the court or judicial officer thinks fit,

(b) enable the commanding officer of a person charged with an offence against any of the services Acts--

(i) to determine that any property seized under this Part in connection with the investigation of an offence be delivered to the person appearing to the commanding officer to be the owner of the property, or

(ii) if the owner cannot be ascertained, to make such other determination with respect to the delivery of the property as the commanding officer considers appropriate,

(i) in whose possession the property was before it was seized under this Part, or

(ii) who claims to be the owner of the property,

to determine that it should be delivered to that person,

(d) make provision as to appeals against orders made by virtue of paragraph (a) and determinations made by virtue of paragraph (b) or (c), and

(e) provide that, on the expiration of a specified period from the making of an order by virtue of paragraph (a), the right of any person to take proceedings for the recovery of the property is to cease.

(3) A determination made by virtue of subsection (2)(b) or (c) does not bar the right of any person to recover any property delivered in pursuance of the determination from the person to whom it is delivered.

Supplementary

13 Orders and codes of practice under s. 113 of Police and Criminal Evidence Act 1984

(1) Section 113 of the 1984 Act (application of Act to armed forces) is amended as follows.

(2) In subsection (1) (which confers on the Secretary of State power by order to apply provisions of the 1984 Act to investigations etc under either of the 1955 Acts or under the 1957 Act) for "this Act" there is substituted "Part 5 of this Act (or Part 11 of this Act so far as relating to that Part)".

(3) In subsection (3) (which requires the Secretary of State to issue one or more codes of practice for persons other than police officers who are concerned with enquiries into offences under the 1955 Acts or the 1957 Act) for the words from "with" onwards there is substituted-- " with--

(a) the exercise of the powers conferred by Part 2 of the Armed Forces Act 2001, or

(b) enquiries into offences under the Army Act 1955, the Air Force Act 1955 or the Naval Discipline Act 1957. "

(4) In subsection (4) for the words "enquiries into such offences" there is substituted "the powers mentioned in subsection (3)(a) above or the enquiries mentioned in subsection (3)(b) above".

14 Power to use reasonable force

Where a power is conferred on any person by or under this Part, the person on whom the power is conferred may use reasonable force, if necessary, in the exercise of the power.

15 Meaning of "service living accommodation"

(1) Subject to subsection (2), in this Part "service living accommodation" means--

(a) any building or part of a building which is occupied for the purposes of any of Her Majesty's forces but is provided for the exclusive use of a person subject to service law, or of such a person and members of his family, as living accommodation or as a garage,

(b) any other room, structure or area (whether on land or on a vessel) which is occupied for the purposes of any of Her Majesty's forces and is used for the provision of sleeping accommodation for one or more persons subject to service law, or

(i) is provided by any of Her Majesty's forces for personal use by a person subject to service law in connection with his sleeping accommodation, but

(ii) is not in a room, structure or area falling within paragraph (b).

(2) Premises are not service living accommodation for the purposes of this Part if, or to the extent that, they are being used--

(a) for holding persons in custody under any of the services Acts, or

(b) for the accommodation of persons serving military, air-force or naval sentences of detention or imprisonment.

16 Part 2: supplementary provisions

(1) In this Part--

"the 1984 Act" means the Police and Criminal Evidence Act 1984 (c. 60);
"Commonwealth force" has the same meaning as in the 1955 Acts and the 1957 Act;
"controlled drug" has the meaning given by section 2 of the Misuse of Drugs Act 1971 (c. 38);
"the corresponding civil offence", in relation to an offence against section 70 of either of the 1955 Acts or section 42 of the 1957 Act, means the civil offence (within the meaning of the Army Act 1955 (c. 18), the Air Force Act 1955 (c. 19) or the 1957 Act) the commission of which constitutes an offence under that section;
"excluded material" has the same meaning as in the 1984 Act;
"Her Majesty's forces" does not include any Commonwealth force;
"items subject to legal privilege" has the same meaning as in the 1984 Act;
"judicial officer" means a judicial officer appointed under section 75L of either of the 1955 Acts or under section 47M of the 1957 Act;
"premises" includes any place and, in particular, includes--
(a)
any vehicle, vessel, aircraft or hovercraft, and
(b)
any tent or movable structure;
"the services Acts" means the 1955 Acts and the 1957 Act;
"service living accommodation" has the meaning given by section 15;
"service policeman" means a member of the Royal Navy Regulating Branch, the Royal Marines Police, the Royal Military Police or the Royal Air Force Police;
"special procedure material" has the same meaning as in the 1984 Act;
"stolen", in relation to an article, has the same meaning as it has by virtue of section 24 of the Theft Act 1968 (c. 60) in the provisions of that Act relating to goods which have been stolen;
"United Kingdom police force" means any of the following--
(a)
the Ministry of Defence Police,
(b)
any police force maintained under section 2 of the Police Act 1996 (c. 16) (police forces in England and Wales outside London),
(c)
the metropolitan police force,
(d)
the City of London police force,
(e)
any police force maintained under or by virtue of section 1 of the Police (Scotland) Act 1967 (c. 77), or
(f)
the Police Service of Northern Ireland.

(2) In this Part any reference to a person subject to service law is a reference to--

(a) a person subject to military law, air-force law or the 1957 Act, or

(b) any other person to whom any provisions of Part 2 of the Army Act 1955 (c. 18), Part 2 of the Air Force Act 1955 (c. 19) or Parts 1 and 2 of the 1957 Act apply because he is a person falling within--

(i) section 209(1) or (2) of either of the 1955 Acts (application of Act to civilians), or

(ii) section 118(1) or (2) of the 1957 Act (application of Act to civilians).

(3) This Part shall, to such extent and subject to such modifications as may be prescribed by regulations made by the Defence Council, apply to persons embarked as passengers on board Her Majesty's ships or Her Majesty's aircraft (not being persons who are subject to service law) as it applies to persons subject to service law.

(4) In subsection (3), "Her Majesty's ships" has the same meaning as in the Army Act 1955 and "Her Majesty's aircraft" has the same meaning as in the Air Force Act 1955.

(5) For the purposes of this Part "commanding officer"--

(a) in relation to a person subject to military law, means the officer who would be that person's commanding officer for the purposes of section 82 of the Army Act 1955 (c. 18) if he were charged with an offence;

(b) in relation to a person subject to air-force law, means the officer who would be that person's commanding officer for the purposes of section 82 of the Air Force Act 1955 (c. 19) if he were charged with an offence;

(i) the officer in command of the ship or naval establishment to which he belongs, or

(ii) any other person who by virtue of regulations under section 52E of that Act would be able to exercise the powers conferred by that Act on a commanding officer in relation to that person if he were charged with an offence;

(d) in relation to a person falling within subsection (2)(b)(i), means the person who is by virtue of regulations of the Defence Council made for the purposes of section 209(3)(f) of either of the 1955 Acts the commanding officer for the purposes of Part 2 of the Act in question in relation to him;

(e) in relation to a person falling within subsection (3), means such officer as may be determined by or under regulations of the Defence Council made for the purposes of that subsection.

(6) For the purposes of this Part, the Provost Marshal of the Royal Air Force and any officer appointed to exercise the functions conferred by the Air Force Act 1955 on provost officers are to be taken to be members of the Royal Air Force Police.

(7) Nothing in this Part limits--

(a) any power of a service policeman or commanding officer to enter and search, or order the entry and search of, premises which are occupied for the purposes of any of Her Majesty's forces, to the extent that the premises do not constitute service living accommodation,

(b) any power of a commanding officer, otherwise than in connection with the investigation of an offence or the exercise of any power of arrest, to enter and search, or order the entry and search of, service living accommodation,

(c) any power of a commanding officer, otherwise than in connection with the investigation of an offence or the exercise of any power of arrest, to search a person or to stop and search a service vehicle, or

(d) any power of a service policeman or commanding officer to search a service vehicle which is not in the charge of any person.

(8) In subsection (7) "service vehicle" means a vehicle, vessel, aircraft or hovercraft which--

(a) belongs to any of Her Majesty's forces, or

(b) is in use for the purposes of any of those forces.

Part 3 Trial and punishment of offences

17 Summary dealing or trial and functions of prosecuting authority

Schedule 1 (which contains amendments relating to summary dealing or trial under the 1955 Acts or the 1957 Act and to the functions of the prosecuting authority under those Acts) shall have effect.

18 Abolition of naval disciplinary courts

Section 52G of the 1957 Act (under which a disciplinary court may be ordered for the trial of an officer below the rank of commander) shall cease to have effect.

19 Membership of courts-martial

Schedule 2 (which contains amendments of the 1955 Acts and the 1957 Act relating to the composition of courts-martial, including provisions relating to the eligibility of warrant officers for membership) shall have effect.

20 Eligibility of warrant officers for membership of summary appeal courts

(1) The Secretary of State may by order provide that, in such circumstances and subject to such conditions as may be prescribed, warrant officers are to be eligible to be members of any of the summary appeal courts.

(2) An order under this section may amend either of the 1955 Acts or the 1957 Act.

(3) No order under this section may enable any of the summary appeal courts to include a warrant officer as a member unless the appellant is of a rank below that of the warrant officer in question.

(4) In this section "the summary appeal courts" means the court established by section 83ZA of each of the 1955 Acts and the court established by section 52FF of the 1957 Act.

21 Review of sentences by Courts-Martial Appeal Court

(1) After section 113A of each of the 1955 Acts there is inserted--

" 113B Scope of section 113C

(1) Section 113C of this Act applies to any case--

(a) which is of a description specified for the purposes of this paragraph in an order made by the Secretary of State, or

(b) in which a sentence is passed by a court-martial on a person--

(i) in respect of an offence against section 70 of this Act which satisfies the condition in subsection (2) below, or

(ii) in respect of two or more offences against that section each of which satisfies that condition.

(2) The condition referred to in subsection (1)(b) above is that the corresponding civil offence is--

(a) an offence which would be triable by a civil court in England and Wales only on indictment, or

(b) an offence of a description specified for the purposes of this paragraph in an order made by the Secretary of State.

(3) For the purposes of this section and section 113C of this Act--

(a) "sentence", in relation to an offence, includes any order made by a court-martial in dealing with an offender, including an order that no punishment be awarded, and

(b) any reference to a sentence passed by a court-martial is a reference to any such sentence as it has effect following any review under section 113 of this Act of the sentence or the finding to which it relates (and, accordingly, the reference in paragraph (a) above to an order that no punishment be awarded includes a reference to the quashing of a sentence on a review).

(4) The power of the Secretary of State to make an order under subsection (1)(a) or (2)(b) above shall be exercisable by statutory instrument.

(5) A statutory instrument containing an order under subsection (1)(a) or (2)(b) above shall be subject to annulment in pursuance of a resolution of either House of Parliament.

113C Review of sentences by Courts-Martial Appeal Court

(1) If it appears to the Attorney General--

(a) that a sentence passed on a person by a court-martial has been unduly lenient, and

(b) that the case is one to which this section applies,

he may, with the leave of the Courts-Martial Appeal Court, refer the case to them for them to review the sentencing of that person.

(2) On a reference under subsection (1) above the Courts-Martial Appeal Court may--

(a) quash the sentence passed by the court-martial on the person; and

(b) in place of it pass such sentence, being a sentence which would have been open to the court-martial on the findings made against that person, as they think appropriate.

(3) Without prejudice to the generality of subsection (1) above, the condition specified in paragraph (a) of that subsection may be satisfied if it appears to the Attorney General that--

(a) the court-martial erred in law as to its powers of sentencing or the reviewing authority so erred as to its powers on a review under section 113 of this Act; or

(b) the sentence passed on the person was not that required by section 70(3B), (3E) or (3G) of this Act.

(4) Where the Courts-Martial Appeal Court have concluded their review of a case referred to them under this section, the Attorney General or the person to whose sentencing the reference relates may refer a point of law involved in any sentence passed on that person in the proceedings to the House of Lords for their opinion, and the House shall consider the point and give their opinion on it accordingly, and either remit the case to the Courts-Martial Appeal Court to be dealt with or deal with it themselves; and section 41(1) of the Courts-Martial (Appeals) Act 1968 (composition of House for appeals) shall apply also in relation to any proceedings of the House under this section.

(5) A reference under subsection (4) above shall be made only with the leave of the Courts-Martial Appeal Court or the House of Lords; and leave shall not be granted unless it is certified by the Courts-Martial Appeal Court that the point of law is of general public importance and it appears to the Courts-Martial Appeal Court or the House of Lords (as the case may be) that the point is one which ought to be considered by that House.

(6) For the purpose of dealing with a case under this section the House of Lords may exercise any powers of the Courts-Martial Appeal Court.

(7) A sentence passed by the Courts-Martial Appeal Court or the House of Lords under subsection (2)(b) above shall be treated for the purposes of this Act as a sentence passed by a court-martial.

(8) The Secretary of State may by regulations made by statutory instrument make supplementary provision with respect to references and applications under this section; and the regulations may in particular contain provision equivalent to that made by any provision of Schedule 3 to the Criminal Justice Act 1988 (which contains supplementary provisions relating to reviews under Part 4 of that Act), subject to such modifications as the Secretary of State thinks fit.

(9) A statutory instrument containing regulations under subsection (8) above shall be subject to annulment in pursuance of a resolution of either House of Parliament. "

(2) After section 71A of the 1957 Act there is inserted--

" 71AB Scope of section 71AC

(1) Section 71AC of this Act applies to any case--

(a) which is of a description specified for the purposes of this paragraph in an order made by the Secretary of State, or

(b) in which a sentence is passed by a court-martial on a person--

(i) in respect of an offence against section 42 of this Act which satisfies the condition in subsection (2) below, or

(ii) in respect of two or more offences against that section each of which satisfies that condition.

(2) The condition referred to in subsection (1)(b) above is that the civil offence is--

(a) an offence which would be triable by a civil court in England and Wales only on indictment, or

(b) an offence of a description specified for the purposes of this paragraph in an order made by the Secretary of State.

(3) For the purposes of this section and section 71AC of this Act--

(a) "sentence", in relation to an offence, includes any order made by a court-martial in dealing with an offender, including an order that no punishment be awarded, and

(b) any reference to a sentence passed by a court-martial is a reference to any such sentence as it has effect following a review under section 70 of this Act of the sentence or the finding to which it relates (and, accordingly, the reference in paragraph (a) above to an order that no punishment be awarded includes a reference to the quashing of a sentence on a review).

(4) The power of the Secretary of State to make an order under subsection (1)(a) or (2)(b) above shall be exercisable by statutory instrument.

(5) A statutory instrument containing an order under subsection (1)(a) or (2)(b) above shall be subject to annulment in pursuance of a resolution of either House of Parliament.

71AC Review of sentences by Courts-Martial Appeal Court

(1) If it appears to the Attorney General--

(a) that a sentence passed on a person by a court-martial has been unduly lenient, and

(b) that the case is one to which this section applies,

he may, with the leave of the Courts-Martial Appeal Court, refer the case to them for them to review the sentencing of that person.

(2) On a reference under subsection (1) above the Courts-Martial Appeal Court may--

(a) quash the sentence passed by the court-martial on the person; and

(b) in place of it pass such sentence, being a sentence which would have been open to the court-martial on the findings made against that person, as they think appropriate.

(3) Without prejudice to the generality of subsection (1) above, the condition specified in paragraph (a) of that subsection may be satisfied if it appears to the Attorney General that--

(a) the court-martial erred in law as to its powers of sentencing or the reviewing authority so erred as to its powers on a review under section 70 of this Act; or

(b) the sentence passed on the person was not that required by section 42(1B), (1E) or (1G) of this Act.

(6) For the purpose of dealing with a case under this section the House of Lords may exercise any powers of the Courts-Martial Appeal Court.

(7) A sentence passed by the Courts-Martial Appeal Court or the House of Lords under subsection (2)(b) above shall be treated for the purposes of this Act as a sentence passed by a court-martial.

(9) A statutory instrument containing regulations under subsection (8) above shall be subject to annulment in pursuance of a resolution of either House of Parliament. "

22 Required custodial sentences

(1) Schedule 3 (which contains amendments of the 1955 Acts and the 1957 Act relating to required custodial sentences) shall have effect.

(2) Any provision of that Schedule or of Part 2 of Schedule 7 ("the relevant provision") has effect in relation to a person who falls to be sentenced on being convicted of an offence against section 70 of either of the 1955 Acts or (as the case may be) section 42 of the 1957 Act if that offence is committed on or after the day on which the relevant provision comes into force.

23 Restriction of judicial review of courts-martial

(1) Section 29 of the Supreme Court Act 1981 (c. 54) (orders of mandamus, prohibition and certiorari) is amended as follows.

(2) In subsection (1) at the beginning there is inserted "Subject to subsection (3A),".

(3) After subsection (3) there is inserted--

" (3A) The High Court shall have no jurisdiction to make orders of mandamus, prohibition or certiorari in relation to the jurisdiction of a court-martial in matters relating to--

(a) trial by court-martial for an offence, or

(b) appeals from a Standing Civilian Court;

and in this subsection "court-martial" means a court-martial under the Army Act 1955, the Air Force Act 1955 or the Naval Discipline Act 1957. "

24 Offences in relation to courts-martial etc

(1) In each of the provisions specified in subsection (2), for "document in his custody or under his control" there is substituted "document or other thing which is in his custody or under his control and".

(2) The provisions referred to in subsection (1) are--

(a) section 57(1)(c) of the Army Act 1955 (c. 18) (refusal of person subject to military law to produce document),

(b) section 101(1)(c) of that Act (refusal of person not subject to military law to produce document),

(d) section 101(1)(c) of that Act (refusal of person not subject to air-force law to produce document), and

(e) section 38(1)(c) of the 1957 Act (refusal of person subject to that Act to produce document).

25 Powers to compel attendance of witnesses

(1) After section 101 of the Army Act 1955 there is inserted--

" 101A Powers to compel attendance of witnesses

(1) Where the appropriate person (as defined by subsection (2) below) is satisfied by evidence on oath--

(a) that a person not subject to military law who is in the United Kingdom or in any colony is likely to be able to give material evidence or produce any document or other thing likely to be material evidence at a trial by court-martial in the United Kingdom or (as the case may be) in that colony,

(b) that he will not voluntarily attend as a witness or produce the document or other thing, and

(c) that it is probable that a summons requiring him to attend the court to give evidence or to produce the document or other thing would not procure his attendance,

the appropriate person may, instead of issuing a summons requiring that person to attend, issue a warrant to arrest him and bring him before the court-martial at a time and place specified in the warrant.

(2) For the purposes of subsection (1) above the appropriate person is, at any time before the commencement of the trial by court-martial, a judicial officer and, thereafter, the judge advocate.

(3) Where--

(a) a person not subject to military law ("the defaulter") fails to attend a court-martial held in the United Kingdom or any colony in response to a summons requiring him to so attend,

(b) the judge advocate is satisfied by evidence on oath that the defaulter is in the United Kingdom or (as the case may be) the colony and that he is likely to be able to give material evidence or produce any document or other thing likely to be material evidence in the proceedings,

(c) it is proved on oath or in such manner as may be prescribed by rules under section 103 of this Act that the defaulter has been duly served with the summons and that any expenses to which he is entitled by virtue of regulations made by the Defence Council have been paid or tendered (within the meaning of rules made under that section), and

(d) it appears to the judge advocate that there is no just excuse for the defaulter's failure to attend,

the judge advocate may issue a warrant to arrest the defaulter and bring him before the court-martial at a time and place specified in the warrant.

(4) A warrant under subsection (1) or (3) above must be addressed to a constable.

(5) Subsections (1) to (4) above apply in relation to proceedings before a judicial officer as they apply in relation to a court-martial, and in their application in relation to such proceedings--

(a) any reference to a court-martial shall be construed as a reference to those proceedings or to the judicial officer (as appropriate);

(b) the reference in subsection (1)(a) above to a trial by court-martial shall be construed as a reference to the proceedings before the judicial officer;

(c) the appropriate person for the purposes of subsection (1) above is (instead of the person mentioned in subsection (2) above) the judicial officer;

(d) the references in paragraph (c) of subsection (3) above to rules under section 103 of this Act shall be construed as references to rules under section 75M of this Act; and

(e) any reference in that subsection to the judge advocate shall be construed as a reference to the judicial officer.

(6) Subsections (1) to (4) above apply in relation to the summary appeal court as they apply in relation to a court-martial, and in their application in relation to the summary appeal court--

(a) any reference to a court-martial shall be construed as a reference to the summary appeal court;

(b) the reference in subsection (1)(a) above to a trial by court-martial shall be construed as a reference to the hearing of an appeal by the summary appeal court;

(c) the appropriate person for the purposes of subsection (1) above is (instead of the person mentioned in subsection (2) above)--

(i) at any time before the commencement of the hearing by the summary appeal court, any judge advocate appointed under section 83ZB of this Act, and

(ii) thereafter, the summary appeal court;

(d) the references in paragraph (c) of subsection (3) above to rules under section 103 of this Act shall be construed as references to rules under section 83ZJ of this Act; and

(e) any reference in that subsection to the judge advocate shall be construed as a reference to the summary appeal court. "

(2) After section 101 of the Air Force Act 1955 (c. 19) there is inserted--