Armed Forces Act 2001 (c. 19)

(The document as of February, 2008)

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" (d) any warrant officer who is to be a member of the court-martial. "

(3) After that subsection there is inserted--

" (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. "

13 (1) Section 103B of that Act (constitution of field general courts-martial) is amended as follows.

(2) In subsection (1) for the words from "consist" onwards there is substituted-- " consist of--

(a) the president, who shall be an air-force officer, and

(b) at least two persons appointed under this paragraph, of whom--

(i) one shall be either an air-force officer or an air-force warrant officer, and

(ii) the rest shall be air-force officers. "

(3) In subsection (2) for the words from "three" to "available" there is substituted "three persons having suitable qualifications are not available for appointment under subsection (1)(a) and (b) above".

(4) After subsection (6) there is inserted--

" (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. "

(5) For subsection (7) there is substituted--

" (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 air-force officers or air-force 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 military officer having qualifications corresponding to those required for an air-force officer, or

(b) where an air-force warrant officer could be appointed, any naval or military warrant officer having qualifications corresponding to those required for an air-force warrant officer. "

(6) In subsection (8), for "less than three officers" there is substituted "only two persons, apart from any judge advocate (as defined by subsection (4) above),".

(7) In subsection (9)--

(a) after the definition of "air-force officer" there is inserted--

" "air-force warrant officer" means a warrant officer belonging to Her Majesty's air forces and subject to air-force law; " ,

(b) after the definition of "military officer" there is inserted--

" "military warrant officer" means a warrant officer belonging to Her Majesty's military forces and subject to military law; " , and

" "naval warrant officer" means a warrant officer belonging to Her Majesty's naval forces and subject to the Naval Discipline Act 1957. " .

14 In section 209 (application of Acts to civilians), in subsection (3)(fa) for "officers" there is substituted "officers or warrant officers".

Naval Discipline Act 1957

15 (1) Section 53C of the 1957 Act (ordering of courts-martial) is amended as follows.

(2) In subsection (2)--

(a) after paragraph (c) there is inserted--

" (cc) any warrant officers who are to be members of the court-martial; " , and

(b) in paragraph (d) after "officers" there is inserted "or warrant officers".

(3) In subsection (4)(e) after "officer" there is inserted "or warrant officer".

16 For section 54 of that Act (composition of courts-martial) there is substituted--

" 54 Composition of courts-martial

(1) A court-martial shall consist of--

(a) the president, who shall be a naval officer,

(b) the judge advocate, and

(i) two shall each be either a naval officer or a naval warrant officer, and

(ii) the rest shall be naval officers.

(2) The president of a court-martial shall not be below the rank of captain, and in the case of a court-martial for the trial of an officer of flag rank shall be an officer of flag rank.

(3) An officer shall not be appointed under subsection (1)(c) above as a member of a court-martial unless--

(a) he is of or above the rank of lieutenant and has held a commission in any of Her Majesty's naval, military or air forces for a period of not less than three years, or for periods amounting in the aggregate to not less than three years, or

(b) immediately before he received his commission, he was a warrant officer in any of those forces.

(4) The officers and warrant officers appointed members of a court-martial shall not all belong to the same ship or naval establishment.

(5) The members appointed under subsection (1)(c) above--

(a) shall not include any warrant officer, unless the court-martial is for the trial of a person of a rank or rate below that of a warrant officer,

(b) shall not include any officer who qualifies under subsection (3) above only by virtue of paragraph (b) of that subsection, unless the court-martial is for the trial of a person of a rank or rate below that which the officer held immediately before he received his commission,

(d) in the case of a trial of a commodore or captain, shall be of or above the rank of commander,

(e) in the case of a trial of a commander, shall include at least two members who are of or above the rank of commander.

(6) If, in the opinion of the court administration officer, the necessary number of naval officers or naval warrant officers having suitable qualifications is not, with due regard to the public service, available for appointment under subsection (1)(c) above, he may appoint under that provision--

(a) any military or air-force officer having qualifications corresponding to those required for a naval officer, or

(b) where a naval warrant officer could be appointed, any military or air-force warrant officer having qualifications corresponding to those required for a naval warrant officer.

(7) 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 this Act;
"naval warrant officer" means a warrant officer belonging to Her Majesty's naval forces and subject to this Act;
"warrant officer" does not include an acting warrant officer (that is, a warrant officer whom a commanding officer has power under Queen's Regulations to order to revert from the rank of warrant officer). "

17 (1) Section 59 of that Act (challenges by accused) is amended as follows.

(2) In subsection (1), after "court-martial" there is inserted ", and any warrant officers so appointed,".

(3) In subsection (4)--

(a) after "court", where first occurring, there is inserted "or to any warrant officer so appointed",

(b) after "officer", where second occurring, there is inserted "or warrant officer".

(4) In subsection (6) after "court-martial" there is inserted ", and any warrant officers so appointed,".

18 In section 118 (application of Acts to civilians), for subsection (3A) there is substituted--

" (3A) A court-martial for the trial of any such person may include in place of the corresponding number of persons eligible to be appointed under section 54(1)(c) of this Act not more than two persons who are in the service of the Crown and are persons to whom this Act applies by virtue of this section. "

Section 22

SCHEDULE 3 Required custodial sentences

Army Act 1955 (c. 18) and Air Force Act 1955 (c. 19)

1 (1) Section 70 of the Army Act 1955 (civil offences) is amended as follows.

(2) In subsection (3) before paragraph (b) there is inserted--

" (ac) if he is a person to whom subsection (3B), (3E) or (3G) below applies, be sentenced in accordance with the subsection in question; " .

(3) For subsection (3A) there is substituted--

" (3A) Subsection (3B) below applies to a person convicted of an offence against this section if--

(a) the corresponding civil offence is a serious offence, and

(b) at the time when the offence against this section was committed, he was 18 or over and had been convicted--

(i) of a serious offence, or

(ii) of an offence against this section, section 70 of the Air Force Act 1955 or section 42 of the Naval Discipline Act 1957 constituted by a civil offence which is a serious offence.

(3B) The court-martial shall sentence the person to imprisonment for life, unless it is of the opinion that there are exceptional circumstances relating to either of the offences or to the offender which justify its not doing so.

(3C) An offence the sentence for which is imposed under subsection (3B) above shall not be regarded as an offence the sentence for which is fixed by law.

(3D) Subsection (3E) below applies to a person convicted of an offence against this section if--

(a) the corresponding civil offence is a class A drug trafficking offence,

(b) at the time when the offence against this section was committed, he was 18 or over and had been convicted of two other offences each of which is either--

(i) a class A drug trafficking offence, or

(ii) an offence against this section, section 70 of the Air Force Act 1955 or section 42 of the Naval Discipline Act 1957 constituted by a civil offence which is a class A drug trafficking offence, and

(3E) The court-martial shall sentence the person to imprisonment for a term of at least seven years, unless it is of the opinion that there are particular circumstances which--

(a) relate to any of the offences or to the offender, and

(b) would make it unjust to do so in all the circumstances.

(3F) Subsection (3G) below applies to a person convicted of an offence against this section if--

(a) the corresponding civil offence is a domestic burglary,

(b) at the time when the offence was committed he was 18 or over and had been convicted of two other offences each of which is either--

(i) a domestic burglary in respect of which he was convicted in England and Wales, or

(ii) an offence against this section, section 70 of the Air Force Act 1955 or section 42 of the Naval Discipline Act 1957 constituted by a civil offence which is a domestic burglary, and

(c) one of those other offences was committed after he had been convicted of the other, and both of them were committed after 30th November 1999.

(3G) The court-martial shall sentence the person to imprisonment for a term of at least three years unless it is of the opinion that there are particular circumstances which--

(a) relate to any of the offences or to the offender, and

(b) would make it unjust to do so in all the circumstances.

(3H) Where an offence is found to have been committed over a period of two or more days, or at some time during a period of two or more days, it shall be taken for the purposes of subsections (3A), (3D) and (3F) above to have been committed on the last of those days. "

(4) After subsection (6) there is inserted--

" (7) In this section--

"class A drug trafficking offence" has the same meaning as in section 110 of the Powers of Criminal Courts (Sentencing) Act 2000;
"domestic burglary" has the same meaning as in section 111 of that Act;
"serious offence" has the same meaning as in section 109 of that Act. "

2 (1) Section 70 of the Air Force Act 1955 (c. 19) is amended as follows.

(2) In subsection (3) before paragraph (b) there is inserted--

" (ac) if he is a person to whom subsection (3B), (3E) or (3G) below applies, be sentenced in accordance with the subsection in question; " .

(3) For subsection (3A) there is substituted--

" (3A) Subsection (3B) below applies to a person convicted of an offence against this section if--

(a) the corresponding civil offence is a serious offence, and

(b) at the time when the offence against this section was committed, he was 18 or over and had been convicted of--

(i) a serious offence, or

(ii) an offence against this section, section 70 of the Army Act 1955 or section 42 of the Naval Discipline Act 1957 constituted by a civil offence which is a serious offence.

(3C) An offence the sentence for which is imposed under subsection (3B) above shall not be regarded as an offence the sentence for which is fixed by law.

(3D) Subsection (3E) below applies to a person convicted of an offence against this section if--

(a) the corresponding civil offence is a class A drug trafficking offence,

(b) at the time when the offence against this section was committed, he was 18 or over and had been convicted of two other offences each of which is either--

(i) a class A drug trafficking offence, or

(ii) an offence against this section, section 70 of the Army Act 1955 or section 42 of the Naval Discipline Act 1957 constituted by a civil offence which is a class A drug trafficking offence, and

(3E) The court-martial shall sentence the person to imprisonment for a term of at least seven years, unless it is of the opinion that there are particular circumstances which--

(a) relate to any of the offences or to the offender, and

(b) would make it unjust to do so in all the circumstances.

(3F) Subsection (3G) below applies to a person convicted of an offence against this section if--

(a) the corresponding civil offence is a domestic burglary,

(b) at the time when the offence was committed he was 18 or over and had been convicted of two other offences each of which is either--

(i) a domestic burglary in respect of which he was convicted in England and Wales, or

(ii) an offence against this section, section 70 of the Army Act 1955 or section 42 of the Naval Discipline Act 1957 constituted by a civil offence which is a domestic burglary, and

(c) one of those other offences was committed after he had been convicted of the other, and both of them were committed after 30th November 1999.

(3G) The court-martial shall sentence the person to imprisonment for a term of at least three years unless it is of the opinion that there are particular circumstances which--

(a) relate to any of the offences or to the offender, and

(b) would make it unjust to do so in all the circumstances.

(4) After subsection (6) there is inserted--

" (7) In this section--

"class A drug trafficking offence" has the same meaning as in section 110 of the Powers of Criminal Courts (Sentencing) Act 2000;
"domestic burglary" has the same meaning as in section 111 of that Act;
"serious offence" has the same meaning as in section 109 of that Act. "

3 After section 70 of each of the 1955 Acts there is inserted--

" 70A Reduction in minimum sentences for guilty pleas

(1) Where sentence falls to be imposed under subsection (3E) or (3G) of section 70 of this Act in respect of an offence to which the offender has pleaded guilty, nothing in that subsection shall prevent a court-martial, after taking into account--

(a) the stage in the proceedings for the offence at which the offender indicated his intention to plead guilty, and

(b) the circumstances in which the indication was given,

from imposing any sentence which is not less than 80 per cent of that specified in that subsection.

(2) Where, by virtue of subsection (1) above, a court-martial imposes a sentence which is less severe than that which it would otherwise have imposed, the court-martial shall state in open court that it has done so.

(3) For the purposes of subsection (1) above, a sentence falls to be imposed under subsection (3E) or (3G) of section 70 of this Act if it is required by that subsection and the court-martial is not of the opinion referred to in that subsection.

70B Reasons to be given for not passing life or minimum sentence

(1) If--

(a) subsection (3B) of section 70 of this Act applies to a person, but

(b) the court-martial is of the opinion that there are exceptional circumstances as mentioned in that subsection which justify its not imposing a sentence of imprisonment for life,

the court shall state in open court that it is of that opinion and what the exceptional circumstances are.

(2) If--

(a) subsection (3E) or (3G) of section 70 of this Act applies to a person, but

(b) the court-martial is of the opinion that there are particular circumstances as mentioned in that subsection which, in all the circumstances, would make a sentence of imprisonment for the minimum term mentioned in that subsection unjust,

the court shall state in open court that it is of that opinion and what the particular circumstances are. "

4 In paragraph 3 of Schedule 5A to each of the 1955 Acts (powers of court on trial of civilian)--

(a) in sub-paragraph (1) (absolute and conditional discharge of civilians) for the words "(not being an offence the sentence for which is fixed by law or falls to be imposed under section 70(3A) above) may" there is substituted "may (subject to sub-paragraph (1A) below)", and

(b) after that sub-paragraph there is inserted--

" (1A) No order may be made under this paragraph if--

(a) the offence of which the civilian is found guilty is an offence against section 70 of this Act where the corresponding civil offence is one for which the sentence is fixed by law, or

(b) the civilian is a person to whom subsection (3B), (3E) or (3G) of that section applies and the court-martial is not of the opinion mentioned in that subsection. "

Naval Discipline Act 1957 (c. 53)

5 (1) Section 42 of the 1957 Act (civil offences) is amended as follows.

(2) In subsection (1), after paragraph (b) there is inserted--

" (ba) if he is a person to whom subsection (1B), (1E) or (1G) below applies, be sentenced in accordance with the subsection in question; " .

(3) For subsection (1A) there is substituted--

" (1A) Subsection (1B) below applies to a person convicted of an offence against this section if--

(a) the civil offence is a serious offence, and

(b) at the time when the offence against this section was committed, he was 18 or over and had been convicted of--

(i) a serious offence, or

(ii) an offence against this section, section 70 of the Army Act 1955 or section 70 of the Air Force Act 1955 constituted by a civil offence which is a serious offence.

(1B) The court-martial shall sentence the person to imprisonment for life, unless it is of the opinion that there are exceptional circumstances relating to either of the offences or to the offender which justify its not doing so.

(1C) An offence the sentence for which is imposed under subsection (1B) above shall not be regarded as an offence the sentence for which is fixed by law.

(1D) Subsection (1E) below applies to a person convicted of an offence against this section if--

(a) the civil offence is a class A drug trafficking offence,

(b) at the time when the offence against this section was committed, he was 18 or over and had been convicted of two other offences each of which is either--

(i) a class A drug trafficking offence, or

(ii) an offence against this section, section 70 of the Army Act 1955 or section 70 of the Air Force Act 1955 constituted by a civil offence which is a class A drug trafficking offence, and

(1E) The court-martial shall sentence the person to imprisonment for a term of at least seven years, unless it is of the opinion that there are particular circumstances which--

(a) relate to any of the offences or to the offender, and

(b) would make it unjust to do so in all the circumstances.

(1F) Subsection (1G) below applies to a person convicted of an offence against this section if--

(a) the civil offence is a domestic burglary,

(b) at the time when the offence was committed he was 18 or over and had been convicted of two other offences each of which is either--

(i) a domestic burglary in respect of which he was convicted in England and Wales, or

(ii) an offence against this section, section 70 of the Army Act 1955 or section 70 of the Air Force Act 1955 constituted by a civil offence which is a domestic burglary, and

(c) one of those other offences was committed after he had been convicted of the other, and both of them were committed after 30th November 1999.

(1G) The court-martial shall sentence the person to imprisonment for a term of at least three years unless it is of the opinion that there are particular circumstances which--

(a) relate to any of the offences or to the offender, and

(b) would make it unjust to do so in all the circumstances.

(1H) Where an offence is found to have been committed over a period of two or more days, or at some time during a period of two or more days, it shall be taken for the purposes of subsections (1A), (1D) and (1F) above to have been committed on the last of those days. "

(4) After subsection (2A) there is inserted--

" (3) In this section--

"class A drug trafficking offence" has the same meaning as in section 110 of the Powers of Criminal Courts (Sentencing) Act 2000;
"domestic burglary" has the same meaning as in section 111 of that Act;
"serious offence" has the same meaning as in section 109 of that Act. "

6 After section 42 there is inserted--

" 42A Reduction in minimum sentences for guilty pleas

(1) Where sentence falls to be imposed under subsection (IE) or (1G) of section 42 of this Act in respect of an offence to which the offender has pleaded guilty, nothing in that subsection shall prevent a court-martial, after taking into account--

(a) the stage in the proceedings for the offence at which the offender indicated his intention to plead guilty, and

(b) the circumstances in which the indication was given,

from imposing any sentence which is not less than 80 per cent of that specified in that subsection.

(3) For the purposes of subsection (1) above, a sentence falls to be imposed under subsection (1E) or (1G) of section 42 of this Act if it is required by that subsection and the court-martial is not of the opinion referred to in that subsection.

42B Reasons to be given for not passing life or minimum sentence

(1) If--

(a) subsection (1B) of section 42 of this Act applies to a person, but

(b) the court-martial is of the opinion that there are exceptional circumstances as mentioned in that subsection which justify its not imposing a sentence of imprisonment for life,

the court shall state in open court that it is of that opinion and what the exceptional circumstances are.

(2) If--

(a) subsection (1E) or (1G) of section 42 of this Act applies to a person, but

the court shall state in open court that it is of that opinion and what the particular circumstances are. "

7 In paragraph 3 of Schedule 4A to the 1957 Act (powers of court on trial of civilian)--

(a) in sub-paragraph (1) (absolute and conditional discharge of civilians) for the words "(not being an offence the sentence for which is fixed by law or falls to be imposed under section 42(1A) above) may" there is substituted "may (subject to sub-paragraph (1A) below)", and

(b) after that sub-paragraph there is inserted--

" (1A) No order may be made under this paragraph if--

(a) the offence of which the civilian is found guilty is an offence against section 42 of this Act constituted by a civil offence for which the sentence is fixed by law, or

(b) the civilian is a person to whom subsection (1B), (1E) or (1G) of that section applies and the court-martial is not of the opinion mentioned in that subsection. "

Section 29

SCHEDULE 4 Amendments relating to custody

Army Act 1955 (c. 18) and Air Force Act 1955 (c. 19)

1 In section 75H of each of the 1955 Acts (custody during court-martial proceedings) at the end of subsection (2) there is inserted ", unless on an adjournment of the court-martial the judge advocate orders that during the adjournment matters relating to custody are to be dealt with by a judicial officer".

2 In section 75J of each of the 1955 Acts (release from custody after charge or during proceedings), after subsection (2) there is inserted--

" (2A) On an application made--

(a) by or on behalf of the accused, or

(b) by the commanding officer of the accused,

any requirement imposed under subsection (2)(b) above (including such a requirement as previously varied under this subsection) may be varied or discharged by a judicial officer or, where section 75H(2) of this Act has effect, by the judge advocate in relation to the court-martial. "

3 (1) Section 75K of each of the 1955 Acts (arrest during proceedings) is amended as follows.

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

" (3A) Where on an adjournment of the court-martial the judge advocate has ordered that during the adjournment matters relating to custody are to be dealt with by a judicial officer, the reference in subsection (3) above to the judge advocate shall have effect as a reference to a judicial officer. "

(3) In subsection (8)(b), for the words "(unless already before him)" there is substituted "or any judicial officer (unless already before the judge advocate or a judicial officer)".

4 After section 75L of each of the 1955 Acts there is inserted--

" 75LL Custody in case of trial by Standing Civilian Court

In relation to any time after the commencement of the trial of the accused by a Standing Civilian Court, the provisions of Schedule 1A to this Act shall have effect in substitution for the provisions of sections 75H to 75K of this Act. "

5 (1) Section 75M of each of the 1955 Acts (custody rules) is amended as follows.

(2) At the end of subsection (1) there is inserted--

" (d) on an application under section 75J(2A) of, or paragraph 2(3) of Schedule 1A to, this Act. "

(3) In paragraph (h) of subsection (2) (which relates to the use of live television links, etc.)--

(a) after "or (8)(b) of" there is inserted ", or paragraph 3(4)(b) of Schedule 1A to,", and

(b) for "or judge advocate" there is substituted ", judge advocate or magistrate".

6 After Schedule 1 to the Army Act 1955 (c. 18) there is inserted--

" SCHEDULE 1A Custody in connection with trial by Standing Civilian Courts

Custody during Standing Civilian Court proceedings

1 (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 a Standing Civilian Court, section 75G of this Act (and section 75F as applied by that section) shall apply with the following modifications.

(2) References to a judicial officer shall have effect as references to a magistrate appointed under section 6(4) of the Armed Forces Act 1976.

(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 a magistrate appointed under section 6(4) of the Armed Forces Act 1976 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 a Standing Civilian Court.

Release from custody during proceedings

2 (1) This paragraph applies where, on a review under section 75G(1) of this Act, the magistrate does not authorise keeping the accused in military custody.

(2) Where this paragraph applies, the accused--

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

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