Armed Forces Act 2001 (c. 19)

(The document as of February, 2008)

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

(b) may be required to comply, before release or later, with such requirements as appear to the magistrate to be necessary for the purpose of securing his attendance at any hearing in the proceedings against him.

(3) 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 section 75J(2)(b) of this Act or under sub-paragraph (2)(b) above (including such a requirement as previously varied under section 75J(2A) of this Act or under this sub-paragraph) may be varied or discharged by a magistrate appointed under section 6(4) of the Armed Forces Act 1976.

(4) A person on whom a requirement has been imposed under section 75J(2)(b) of this Act or under sub-paragraph (2)(b) above is guilty of an offence if he fails without reasonable cause to attend any Standing Civilian Court hearing to which the requirement relates.

(5) A person guilty of an offence under this paragraph shall be liable on conviction by a Standing Civilian Court to any punishment authorised by section 8 of the Armed Forces Act 1976.

Arrest during Standing Civilian Court proceedings

3 (1) At any time before the conclusion of the trial of the accused by a Standing Civilian Court, a magistrate appointed under section 6(4) of the Armed Forces Act 1976, if satisfied that taking the accused into military custody is justified, may direct the arrest of the accused; and any person with power to arrest the accused for an offence against a provision of this Act shall have the same power, exercisable in the same way, to arrest him pursuant to a direction under this sub-paragraph.

(2) For the purposes of this paragraph, taking the accused into military custody is justified if there are substantial grounds for believing that, if not taken into military custody, he would--

(a) fail to attend any hearing in the proceedings against him,

(b) commit an offence,

(d) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person.

(3) Taking the accused into military custody is also justified for the purposes of this section if the accused has failed to attend any hearing in the proceedings against him.

(4) A person arrested under sub-paragraph (1) above--

(a) shall be treated as being in military custody under an order under section 75F(2) of this Act, and

(b) shall be brought as soon as practicable before a magistrate appointed under section 6(4) of the Armed Forces Act 1976 (unless already before such a magistrate), and shall be dealt with by the magistrate as on a review under section 75G(1) of this Act. "

7 After Schedule 1 to the Air Force Act 1955 (c. 19) 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 air-force 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 air-force 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 air-force 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 air-force custody.

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

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

(3) On an application made--

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

(b) by the commanding officer of the accused,

(5) A person guilty of an offence under this paragraph shall be liable on conviction by a Standing Civilian Court to any punishment authorised by section 8 of the Armed Forces Act 1976.

Arrest during Standing Civilian Court proceedings

3 (1) At any time before the conclusion of the trial of the accused by a Standing Civilian Court, a magistrate appointed under section 6(4) of the Armed Forces Act 1976, if satisfied that taking the accused into air-force custody is justified, may direct the arrest of the accused; and any person with power to arrest the accused for an offence against a provision of this Act shall have the same power, exercisable in the same way, to arrest him pursuant to a direction under this sub-paragraph.

(2) For the purposes of this paragraph, taking the accused into air-force custody is justified if there are substantial grounds for believing that, if not taken into air-force custody, he would--

(a) fail to attend any hearing in the proceedings against him,

(b) commit an offence,

(d) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person.

(3) Taking the accused into air-force custody is also justified for the purposes of this section if the accused has failed to attend any hearing in the proceedings against him.

(4) A person arrested under sub-paragraph (1) above--

(a) shall be treated as being in air-force custody under an order under section 75F(2) of this Act, and

Naval Discipline Act 1957 (c. 53)

8 In section 47J of the 1957 Act (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".

9 In section 47K of the 1957 Act (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 47J(2) of this Act has effect, by the judge advocate in relation to the court-martial. "

10 (1) Section 47L of the 1957 Act (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)".

11 In section 47N of that Act (custody rules), at the end of subsection (1) there is inserted--

" (d) on an application under section 47K(2A) of this Act. "

Section 32(9)

SCHEDULE 5 Testing for alcohol or drugs

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

1 (1) Section 34A of each of the 1955 Acts is amended as follows.

(2) In subsection (1), for "testing for the presence of drugs" there is substituted "the purpose of ascertaining whether, or to what extent, he has, or has had, drugs in his body".

(3) After subsection (1) there is inserted--

" (1A) A drug testing officer may not request a person to provide a sample under subsection (1) above if--

(a) he is that person's commanding officer, or

(b) the commanding officer of that person is also his commanding officer.

(1B) A request under subsection (1) above may not be made if the sample is sought in connection with--

(a) an investigation under this Act of an offence, or

(b) an investigation of such an incident as is referred to in section 32(1)(a) of the Armed Forces Act 2001 (powers to test for alcohol or drugs after serious incident).

(1C) The results of tests performed on a sample provided by a person at the request of a drugs testing officer shall not be admissible in evidence against--

(a) that person, or

(b) any other person,

in proceedings before a court-martial, commanding officer or appropriate superior authority.

(1D) Nothing in this section--

(a) limits the powers conferred by--

(i) sections 6 and 7 of the Road Traffic Act 1988 (breath tests and provision of specimens for analysis), as applied by section 184 of that Act, or

(ii) sections 62 and 63 of the Police and Criminal Evidence Act 1984 (intimate and other samples), as applied by order under section 113(1) of that Act; or

(b) affects the admissibility in any proceedings of evidence obtained under those powers. "

2 After section 34A of the Army Act 1955 (c. 18) there is inserted--

" 34B Failure to provide sample after serious incident

Any person subject to military law who, without reasonable excuse, fails to comply with a request made under subsection (3) or (4) of section 32 of the Armed Forces Act 2001 (powers to test for alcohol or drugs after serious incident) shall be guilty of an offence and shall, on conviction by court-martial, be liable to imprisonment for a term not exceeding six months or any less punishment provided by this Act. "

3 After section 34A of the Air Force Act 1955 (c. 19) there is inserted--

" 34B Failure to provide sample after serious incident

Any person subject to air-force law who, without reasonable excuse, fails to comply with a request made under subsection (3) or (4) of section 32 of the Armed Forces Act 2001 (powers to test for alcohol or drugs after serious incident) shall be guilty of an offence and shall, on conviction by court-martial, be liable to imprisonment for a term not exceeding six months or any less punishment provided by this Act. "

4 In the proviso to section 209(2) of each of the 1955 Acts (application of Act to civilians), for the words from "except" onwards there is substituted-- " except--

(a) sections 29, 35, 36 and 55 to 57, and section 68 so far as it relates to those sections, and

(b) in the case of persons falling within any description specified in paragraphs 1 to 4 of Schedule 5, section 34B and section 68 so far as it relates to that section. "

Naval Discipline Act 1957 (c. 53)

5 (1) Section 12A of the 1957 Act (failure to provide a sample for drug testing) is amended as follows.

(2) In subsection (1)--

(a) for "testing for the presence of drugs" there is substituted "the purpose of ascertaining whether, or to what extent, he has, or has had, drugs in his body", and

(b) the words "on conviction by court-martial" are omitted.

(3) After that subsection there is inserted--

" (1A) A drug testing officer may not request a person to provide a sample under subsection (1) above if--

(a) he is that person's commanding officer, or

(b) the commanding officer of that person is his commanding officer.

(1B) A request under subsection (1) above may not be made if the sample is sought in connection with--

(a) an investigation under this Act of an offence, or

(b) an investigation of such an incident as is referred to in section 32(1)(a) of the Armed Forces Act 2001 (powers to test for alcohol or drugs after serious incident).

(1C) The results of tests performed on a sample provided by a person at the request of a drugs testing officer shall not be admissible in evidence against--

(a) that person, or

(b) any other person,

in proceedings before a court-martial, commanding officer or appropriate superior authority.

(1D) Nothing in this section--

(a) limits the powers conferred by--

(i) sections 6 and 7 of the Road Traffic Act 1988 (breath tests and provision of specimens for analysis), as applied by section 184 of that Act, or

(ii) sections 62 and 63 of the Police and Criminal Evidence Act 1984 (intimate and other samples), as applied by order under section 113(1) of that Act; or

(b) affects the admissibility in any proceedings of evidence obtained under those powers. "

(4) In subsection (2), in the definition of "drug testing officer", for "or non-commissioned officer" there is substituted ", chief petty officer, petty officer or leading rating".

6 After section 12A of the 1957 Act there is inserted--

" 12B Failure to provide sample after serious incident

Any person subject to this Act who, without reasonable excuse, fails to comply with a request made under subsection (3) or (4) of section 32 of the Armed Forces Act 2001 (powers to test for alcohol or drugs after serious incident) shall be guilty of an offence and shall be liable to imprisonment for a term not exceeding six months or any less punishment provided by this Act. "

7 In section 118(2) of the 1957 Act (application to certain civilians)--

(a) in paragraph (a), after "sections" there is inserted "12B,", and

(b) at the end of the proviso there is inserted "and the said section 12B, and sections 40 and 41 so far relating thereto, shall apply only to persons falling within any description specified in paragraphs 1 to 4 of Schedule 3".

Section 34

SCHEDULE 6 Miscellaneous amendments

Part 1 Amendments of Sexual Offences (Amendment) Act 1992

1 At the end of section 2 of the Sexual Offences (Amendment) Act 1992 (c. 34) (offences to which that Act applies) there is inserted--

" (4) This Act applies to a service offence (wherever committed) if the corresponding civil offence is mentioned in subsection (1). "

2 At the end of section 4 of that Act (special rules for cases of incest or buggery) there is inserted--

" (9) For the purposes of this section, a service offence is a section 10 offence, a section 11 offence or a section 12 offence if the corresponding civil offence is a section 10 offence, a section 11 offence or a section 12 offence, as the case may be. "

3 (1) Section 6 of that Act (interpretation etc.) is amended as follows.

(2) In subsection (1)--

(a) after the definition of "complainant" there is inserted--

" "corresponding civil offence", in relation to a service offence, means the civil offence (within the meaning of the Army Act 1955, the Air Force Act 1955 or the Naval Discipline Act 1957) the commission of which constitutes the service offence; " and

(b) after the definition of "relevant programme" there is inserted--

" "service offence" means an offence against section 70 of the Army Act 1955, section 70 of the Air Force Act 1955 or section 42 of the Naval Discipline Act 1957; " .

(3) In subsection (3) after "accused of an offence" there is inserted ", other than a service offence,".

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

" (3A) For the purposes of this Act, a person is accused of a service offence if he is treated by section 75(4) of the Army Act 1955, section 75(4) of the Air Force Act 1955 or section 47A(4) of the Naval Discipline Act 1957 as charged with the offence, and references in section 3 to an accusation alleging an offence shall be construed accordingly. "

4 (1) Section 7 of that Act (application of Act in relation to courts-martial) is amended as follows.

(2) In subsection (1), for "section 2(1)" there is substituted "section 2(4)".

(3) In subsection (2), paragraph (f) and the word "and" preceding it are omitted.

Part 2 Abolition of office of Deputy Judge Advocate

Courts-Martial (Appeals) Act 1951 (c. 46)

5 In section 30(1)(b) of the Courts-Martial (Appeals) Act 1951 (assistants to Judge Advocate General), there are omitted--

(a) the words ", and such number of officers to be known as Deputy Judge Advocates,", and

(b) the words "in each case".

6 In section 31 of that Act (qualifications of Judge Advocate General and assistants)--

(a) in subsection (2)--

(i) at the end of paragraph (b) there is inserted "or", and

(ii) paragraph (d) and the word "or" preceding it are omitted,

(b) subsection (3) is omitted, and

(c) in subsection (4), for ", an Assistant Judge Advocate General or a Deputy Judge Advocate" there is substituted "or an Assistant Judge Advocate General".

7 In section 32(1) of that Act (tenure of Judge Advocate General and assistants) for ", an Assistant Judge Advocate General or a Deputy Judge Advocate" there is substituted "or an Assistant Judge Advocate General".

House of Commons Disqualification Act 1975 (c. 24) and Northern Ireland Assembly Disqualification Act 1975 (c. 25)

8 In Part 3 of Schedule 1 to each of the House of Commons Disqualification Act 1975 and the Northern Ireland Assembly Disqualification Act 1975 (other disqualifying offices), in the entry beginning "Judge Advocate General", for ", Assistant Judge Advocate General or Deputy Judge Advocate" there is substituted "or Assistant Judge Advocate General".

Courts and Legal Services Act 1990 (c. 41)

9 In Schedule 11 to the Courts and Legal Services Act 1990 (judges etc. barred from legal practice) in the entry relating to an Assistant or Deputy Judge Advocate General, the words "or Deputy" are omitted.

Judicial Pensions and Retirement Act 1993 (c. 8)

10 In section 27(3) of the Judicial Pensions and Retirement Act 1993 (completion of proceedings after retirement), paragraph (f) is omitted.

Part 3 Amendments of Reserve Forces Act 1996

Delegation by Secretary of State of certain functions

11 In section 35(1) of the Reserve Forces Act 1996 (c. 14) (exercise of certain functions under section 32 or 33 of that Act) after "section" there is inserted "31,".

Notice given by special member

12 In section 41 of that Act (cessation of liabilities), in subsection (4) the word "been" is omitted.

Absence for voting

13 In section 125 of that Act (absence for voting), in paragraph (a), after "Member of the Scottish Parliament" there is inserted ", a Member of the National Assembly for Wales, a Member of the Northern Ireland Assembly".

Part 4 Amendments consequential on section 21(5) of Human Rights Act 1998

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

14 In section 24(3) of each of the 1955 Acts (penalty for offence of misconduct in action) for the words from "liable" to the end there is substituted "liable to imprisonment or any less punishment provided by this Act".

15 In section 25(2) of each of those Acts (penalty for offence of assisting the enemy) for the words from "liable" to the end there is substituted "liable to imprisonment or any less punishment provided by this Act".

16 In section 26(3) of each of those Acts (penalty for offence of obstructing operations) for the words from "liable" to the end there is substituted "liable to imprisonment or any less punishment provided by this Act".

17 In section 32 of each of those Acts (failure to suppress mutiny) for the words from "court-martial" onwards there is substituted "court-martial be liable to imprisonment or any less punishment provided by this Act".

18 (1) Section 126 of each of those Acts (special provisions as to carrying out of sentences outside the United Kingdom otherwise than in military establishments) is amended as follows.

(2) In subsection (1)--

(a) the words from "sentences of death" to "authorities and" are omitted, and

(b) for "such establishments" there is substituted "establishments under the control of those authorities".

(3) In subsection (2), for "sections one hundred and twenty-one and one hundred and twenty-two of this Act" there is substituted "section one hundred and twenty-two of this Act."

(4) In subsection (3), the words "no sentence of death passed by a court-martial shall be executed, and" are omitted.

Naval Discipline Act 1957 (c. 53)

19 In section 2(3) of the 1957 Act (penalty for misconduct in action) for the words from "liable" to the end there is substituted "liable to imprisonment or any less punishment authorised by this Act".

20 In section 3(2) of that Act (penalty for assisting the enemy) for the words from "liable" to the end there is substituted "liable to imprisonment or any less punishment authorised by this Act".

21 In section 4(3) of that Act (penalty for obstructing operations) for the words from "liable" to the end there is substituted "liable to imprisonment or any less punishment authorised by this Act".

22 For subsection (7) of section 52B of that Act (investigation of charges by commanding officer) there is substituted--

" (7) For the purposes of this Act, a charge is capable of being tried summarily if it is for an offence triable by court-martial under this Act, other than--

(a) an offence listed in subsection (8) below (offences which, before the passing of the Human Rights Act 1998, were punishable by sentence of death), or

(b) an offence under section 42 of this Act where the civil offence is one for which the sentence is fixed by law as life imprisonment.

(8) The offences are--

(a) an offence under section 2 of this Act, if it consists in an act or omission falling within subsection (1) or (2)(a) of that section and it is charged that it was committed with intent to assist the enemy;

(b) an offence under section 3 of this Act, if it consists in an act or omission falling within subsection (1)(a), (b), (c), (d) or (f) of that section and it is charged that it was committed with intent to assist the enemy;

(d) an offence under section 9 of this Act, if it is charged that the mutiny had as its object or one of its objects the refusal or avoidance of any duty or service against or in connection with operations against the enemy, or the impeding of the performance of any such duty or service;

(e) an offence under section 10 of this Act, if it is charged that it was committed with intent to assist the enemy;

(f) an offence under section 42 of this Act, where the civil offence is treason. "

Part 5 Queen Alexandra's Royal Naval Nursing Service and former Women's Royal Naval Service

Naval Discipline Act 1957 (c. 53)

23 In section 111 of the 1957 Act there are omitted--

(a) in subsection (1), the words "and Queen Alexandra's Royal Naval Nursing Service", and

(b) in subsection (2), the words "or of Queen Alexandra's Royal Naval Nursing Service".

24 In section 132(5) of that Act, the words "Queen Alexandra's Royal Naval Nursing Service" are omitted.

Armed Forces Act 1976 (c. 52)

25 In section 6(9)(b) of the Armed Forces Act 1976, the words "or Queen Alexandra's Royal Naval Nursing Service" are omitted.

House of Commons Disqualification Act 1975 (c. 24)

26 In section 1(3) of the House of Commons Disqualification Act 1975, in the definition of "regular armed forces of the Crown", for the words from ", the regular air force" to the end there is substituted "or the regular air force as defined by section 223 of the Air Force Act 1955".

Northern Ireland Assembly Disqualification Act 1975 (c. 25)

27 In section 1(2) of the Northern Ireland Assembly Disqualification Act 1975, in the definition of "regular armed forces of the Crown", for the words from ", the regular air force" to the end there is substituted "or the regular air force as defined by section 223 of the Air Force Act 1955".

Armed Forces Act 1981 (c. 55)

28 Section 20(2) of, and Part 3 of Schedule 3 to, the Armed Forces Act 1981 (which apply to members of Queen Alexandra's Royal Naval Nursing Service provisions of the Armed Forces Act 1966 relating to discharge etc.) shall cease to have effect.

Housing Act 1985 (c. 68)

29 In section 622 of the Housing Act 1985, in the definition of "regular armed forces of the Crown", for the words from ", the regular air force" to the end there is substituted "or the regular air force as defined by section 223 of the Air Force Act 1955".

Housing Act 1996 (c. 52)

30 In section 199(4) of the Housing Act 1996, for the words from ", the regular air force" to the end there is substituted "or the regular air force as defined by section 223 of the Air Force Act 1955".

Part 6 Other amendments

Marriages in service chapels

31 In section 68 of the Marriage Act 1949 (c. 76) (solemnization of marriages in naval, military and air force chapels)--

(a) in subsection (2)(e), after "daughter" there is inserted ", son, step-daughter or step-son", and

(b) in subsection (3), the words from "and the expression" to the end are omitted.

Retirement age for assistants to Judge Advocate General

32 (1) In section 32(2) of the Courts-Martial (Appeals) Act 1951 (c. 46) (tenure of office of Judge Advocate General and assistants), for "sixty-five" there is substituted "seventy".

(2) The amendment made by sub-paragraph (1) applies in relation to any such officer as is mentioned in section 30(1) of that Act (assistants to Judge Advocate General) whether appointed before or after the commencement of sub-paragraph (1).

Sentence where penalty for civil offence fixed by law as life imprisonment

33 (1) Section 70(3) of each of the 1955 Acts (punishment of civil offences) is amended as follows.

(2) For paragraphs (aa) and (ab) there is substituted--

" (aa) if the corresponding civil offence is one for which the sentence is fixed by law as life imprisonment, be sentenced to imprisonment for life; " .

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

(2) The words "Subject to section 43A below" are inserted at the beginning and the words "subject to section 43A below be liable" are omitted.

(3) For paragraph (b) there is substituted--

" (b) in the case of an offence constituted by a civil offence the sentence for which is fixed by law as life imprisonment, be sentenced to imprisonment for life; " .

(4) In paragraph (c), after "any other offence," there is inserted "be liable".

Qualification for appointment as judicial officer

35 (1) Section 75L of each of the 1955 Acts (judicial officers) is amended as follows.

(2) In subsection (2) the word "or" at the end of paragraph (a) is omitted and at the end of paragraph (b) there is inserted-- " or

(c) immediately before his appointment, he holds a relevant judicial appointment in any Commonwealth country or colony and has professional or educational qualifications in law which appear to the Judge Advocate General to be appropriate. "

(3) After that subsection there is inserted--

" (3) In subsection (2)(c), "relevant judicial appointment", in relation to a Commonwealth country or colony, means an appointment by virtue of which he is capable of exercising, in criminal proceedings in that country or colony, functions similar to the functions exercisable, in criminal proceedings in England and Wales, by a judge of the Supreme Court, a Circuit judge or a District Judge (Magistrates' Courts). "

36 (1) Section 47M of the 1957 Act (judicial officers) is amended as follows.

(2) In subsection (2) the word "or" at the end of paragraph (a) is omitted and at the end of paragraph (b) there is inserted-- " or

(3) After that subsection there is inserted--

Evidence given before boards of inquiry

37 In section 135 of the Army Act 1955 (c. 18) (boards of inquiry), for subsection (5) there is substituted--

" (5) Evidence given before a board of inquiry convened--

(a) under this section,

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