Armed Forces Act 2006 (c. 52)

(The document as of February, 2008)

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Effect of custodial sentence or detention on rank or rate

293 Effect on rank or rate of WOs and NCOs of custodial sentence or sentence of service detention

(1) This section applies where a custodial sentence or sentence of service detention is passed on a warrant officer or non-commissioned officer ("the offender") in respect of a service offence without a sentence of dismissal or dismissal with disgrace also being passed on the offender in respect of that or any other offence.

(2) The offender's rank or rate is reduced from the beginning of the day on which the sentence takes effect to the lowest rank or rate to which it could be reduced under section 164.

(3) For the purposes of this section, the making of an order under section 214 (detention for commission of offence during currency of order) in respect of a person is to be treated as the passing of a custodial sentence on him in respect of a service offence.

294 Rank or rate of WOs and NCOs while in custody pursuant to custodial sentence etc

(1) While a warrant officer or non-commissioned officer is in custody in pursuance of a sentence or order to which this section applies, he is for all purposes to be treated as being--

(a) if he is a member of any of Her Majesty's air forces, of the highest rank he has held in that force as an airman;

(b) otherwise, of the rank or rate of able rate, marine or soldier (as the case may be).

(2) The sentences to which this section applies are--

(a) a custodial sentence passed in respect of a service offence;

(b) a sentence of service detention;

(c) a sentence of imprisonment, or a sentence corresponding to any other custodial sentence, passed by a civilian court in the British Islands.

(3) The orders to which this section applies are--

(a) an order under section 214 (detention for commission of offence during currency of order);

(b) an order under section 104 of the Sentencing Act (detention of offender subject to detention and training order for breach of supervision requirements);

Effect of dismissal

295 Effect of sentence of dismissal

(1) This section applies where a sentence of dismissal or dismissal with disgrace is passed on an offender.

(2) If the offender is a commissioned officer, his commission is forfeit with effect from the beginning of the day on which the sentence is passed.

(3) If the offender is not a commissioned officer, the competent authority must discharge him from the regular or reserve force of which he is a member.

(4) If the offender is a warrant officer or non-commissioned officer, his rank or rate is reduced from the beginning of the day on which the sentence is passed--

(a) if he is a member of any of Her Majesty's air forces, to the highest rank he has held in that force as an airman;

(b) otherwise, to able rate, marine or soldier (as the case may be).

(5) Nothing in subsection (3) requires the offender to be discharged before he is released from any sentence of service detention--

(a) which is passed on him on the same occasion as the sentence mentioned in subsection (1); or

(b) to which he is subject when that sentence is passed.

Service of sentence

296 Service detention

(1) A person sentenced to service detention--

(a) may be detained in service custody; but

(b) may not be detained in a prison.

(2) Subsection (1)(a) does not apply if--

(a) the sentence has not taken effect; or

(b) the sentence has ceased to have effect by virtue of section 290 or 291 and has not resumed effect.

(3) A person detained in service custody in pursuance of a sentence of service detention is deemed to be in legal custody.

297 Detention in service custody following passing of custodial sentence etc

(1) Where--

(a) a custodial sentence has been passed on a person in respect of a service offence, or

(b) an order under section 214 (detention for commission of offence during currency of order) has been made in respect of a person,

the person may be detained in service custody until he is committed to the appropriate establishment.

(2) For the purposes of subsection (1), a suspended sentence of imprisonment is to be treated as passed when an order that the sentence shall take effect is made.

(3) A person in service custody under subsection (1) is deemed to be in legal custody.

298 Removal to England and Wales following passing of custodial sentence etc

(1) If a person is outside England and Wales when--

(a) a custodial sentence is passed on him in respect of a service offence, or

(b) an order under section 214 (detention for commission of offence during currency of order) is made in respect of him,

he must as soon as practicable be removed to England and Wales.

(2) For the purposes of subsection (1), a suspended sentence of imprisonment is to be treated as passed when an order that the sentence shall take effect is made.

299 Duty to receive prisoners

The governor of a prison in England or Wales must--

(a) receive any person who, in accordance with rules under section 300, has been sent to the prison; and

(b) confine that person until he is lawfully discharged or delivered over.

300 Service custody etc rules

(1) The Secretary of State may make rules about service custody and the service of relevant sentences.

(2) The rules may in particular contain provision about--

(a) the provision, classification, regulation and management of service custody premises;

(b) the appointment, powers and duties of inspectors and visitors of service custody premises and of persons who work at such premises;

(d) the places in which persons may be required to serve sentences of service detention;

(e) the removal of persons serving relevant sentences from one place or type of custody to another;

(f) the committal of persons under relevant sentences to the appropriate establishment;

(g) the circumstances in which persons serving relevant sentences who are unlawfully at large are to be treated as not being unlawfully at large;

(h) the release (including the temporary or early release) of persons serving sentences of service detention.

(3) The rules may confer on any person--

(a) a power to use reasonable force where necessary for the purpose of carrying out a search of service custody premises or of a person in service custody;

(b) a power to seize and detain unauthorised property (as defined by the rules).

(4) The rules may contain provision in respect of the award of additional days to a person guilty of a disciplinary offence created by the rules.

(5) The rules may provide for the determination of any matter by a judge advocate, and may contain provision for and in connection with appeals against such determinations.

(6) The rules may apply (with or without modifications), in relation to service custody premises and persons detained there, any of--

(a) sections 39 to 42 of the Prison Act 1952 (c. 52) (offences by persons other than prisoners etc);

(b) section 22(2) of the Criminal Justice Act 1961 (c. 39) (harbouring escaped prisoners etc).

(7) In this section--

"relevant sentence" means--
(a)
a custodial sentence passed in respect of a service offence;
(b)
a sentence of service detention; or
(c)
an order under section 214 (detention for commission of offence during currency of order);
"service custody premises" means premises under the control of the Secretary of State for the keeping of persons in service custody.

301 Duration of sentences: persons unlawfully at large or on temporary release

(1) In calculating the period for which a person sentenced to service detention is liable to be detained, no account shall be taken of any period within subsection (3).

(2) In calculating the period for which a person on whom a custodial sentence has been passed in respect of a service offence is liable to be detained, no account shall be taken of any period within subsection (3) occurring before the person is committed to the appropriate establishment.

(3) The following periods are within this subsection--

(a) any period when the person is unlawfully at large;

(b) any period of temporary release on compassionate grounds (pursuant to rules under section 300).

(4) A person who has been temporarily released pursuant to rules under section 300 is unlawfully at large for the purposes of this section if--

(a) he was released subject to complying with a condition, and he fails to comply with the condition; or

(b) he is at large after the end of the period for which he was released.

(5) In this section--

"period when the person is unlawfully at large" means the period beginning with the day when he becomes unlawfully at large and ending with the day when he is taken back into custody (whether service or otherwise) or returns to the place at which he was serving his sentence;
"period of temporary release on compassionate grounds" means the period beginning with the day after the day when the person is released and ending with the day when he is required to return to custody (or, if earlier, the day when he returns to custody).

302 Remission of certain sentences on passing of custodial sentence etc

(1) Any unserved part of any relevant sentence passed on a person is remitted by--

(a) the passing on him of a custodial sentence in respect of a service offence; or

(b) the passing on him by a civilian court in the British Islands of a sentence of imprisonment or a sentence corresponding to any other custodial sentence.

(2) In subsection (1) "relevant sentence" means--

(a) a sentence of service detention;

(b) a service supervision and punishment order; or

(3) Subsection (1) applies in relation to--

(a) the making of an order under section 214 (detention for commission of offence during currency of order),

(b) the making of an order under section 104 of the Sentencing Act (detention of offender subject to detention and training order for breach of supervision requirements), or

(c) the making by a civilian court in the British Islands of an order corresponding to an order within paragraph (a) or (b),

as it applies in relation to the passing of a sentence mentioned in subsection (1)(a).

(4) For the purposes of subsection (1), a suspended sentence of imprisonment or a sentence corresponding to such a sentence is to be treated as passed when an order that the sentence shall take effect is made.

303 Power of service policeman to arrest person unlawfully at large

(1) A person who has been sentenced to service detention and who is unlawfully at large--

(a) may be arrested by a service policeman; and

(b) may be taken to the place in which he is required in accordance with law to be detained.

(2) Section 301(4) (cases where persons temporarily released from service detention are unlawfully at large) applies for the purposes of this section.

(3) A person may use reasonable force, if necessary, in the exercise of a power conferred by subsection (1).

Supplementary

304 Sentences passed by civilian courts

(1) In this Part any reference to a custodial sentence passed in respect of a service offence excludes a sentence of imprisonment passed by a civilian court in respect of such an offence.

(2) In each of sections 297(2) and 298(2) the reference to an order excludes an order made by a civilian court.

Part 13 Discipline: Miscellaneous and Supplementary

Chapter 1 Testing for Alcohol and Drugs

305 Testing for drugs

(1) A drug testing officer may, in order for it to be ascertained whether or to what extent a person subject to service law has or has had drugs in his body, require the person to provide a sample of his urine for analysis.

(2) A drug testing officer may not impose a requirement under subsection (1) if--

(a) he or his commanding officer is the person's commanding officer; or

(b) the sample is sought in connection with an investigation under this Act of an offence or an investigation of an incident within section 306(1)(a).

(3) A person commits an offence if he fails to comply with a requirement imposed under subsection (1).

(4) In this section--

"drug" means a controlled drug as defined by section 2 of the Misuse of Drugs Act 1971 (c. 38); and
"drug testing officer" means an officer, warrant officer or non-commissioned officer who is authorised by or in accordance with regulations made by the Defence Council for the purpose of obtaining samples for analysis for drugs.

(5) A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 164, but any sentence of imprisonment or service detention imposed in respect of the offence must not exceed 51 weeks.

306 Testing for alcohol and drugs after serious incident

(1) This section applies where--

(a) an incident has occurred which in the opinion of an officer resulted in, or created a risk of, death or serious injury to any person or serious damage to any property; and

(b) in the opinion of the officer, it is possible that a person within subsection (3) ("A") may have caused or in any way contributed to--

(i) the occurrence of the incident;

(ii) any death or serious injury to any person, or serious damage to any property, resulting from it; or

(iii) the risk of any such death, injury or damage.

(2) The officer may, in order for it to be ascertained whether or to what extent A has or has had alcohol or drugs in his body, require A to provide a sample for analysis.

(3) A person is within this subsection if--

(a) he is a person subject to service law or a civilian subject to service discipline; and

(b) the officer mentioned in subsection (1) is his commanding officer.

(4) A person commits an offence if without reasonable excuse he fails to comply with a requirement imposed under subsection (2).

(6) The Defence Council may by regulations provide for the delegation by an officer of--

(a) functions conferred by this section;

(b) functions conferred by regulations under section 308 so far as relating to the obtaining of samples under subsection (2) of this section.

307 Definitions etc for purposes of section 306

(1) This section applies for the purposes of section 306.

(2) "Drug" means--

(a) a controlled drug as defined by section 2 of the Misuse of Drugs Act 1971 (c. 38); or

(b) any other drug specified, or of a description specified, in an order made by the Secretary of State for the purposes of this paragraph.

(3) "Sample" means--

(a) where the sample is required in order for it to be ascertained whether or to what extent a person has or has had alcohol in his body, a sample of urine or breath;

(b) where the sample is required in order for it to be ascertained whether or to what extent a person has or has had drugs in his body, a sample of urine; and

(c) in either case, any other sample specified by the Secretary of State in an order made for the purposes of this paragraph.

(4) The power conferred by subsection (3)(c) does not include power to specify a sample of blood, semen or other tissue fluid or anything which would have to be provided from a person's body orifice (other than the mouth).

(5) Any reference to a person being required to provide a sample includes, in relation to a sample within subsection (3)(c), a reference to a person being required to consent to the taking from him of a sample.

308 Sections 305 and 306: supplementary

(1) The Defence Council may by regulations make provision about the obtaining of samples under sections 305(1) and 306(2) and the analysis of such samples, including in particular provision--

(a) as to the number of samples which a person may be required to provide;

(b) as to the circumstances in which a person may be required under section 306(2) to provide more than one type of sample;

(c) enabling the person imposing a requirement under section 305(1) or 306(2) to specify the way in which the sample is to be provided;

(d) prescribing circumstances in which a requirement under section 305(1) or 306(2) may not be imposed;

(e) as to the equipment to be used, and the procedures to be followed, in obtaining or analysing samples;

(f) as to the qualifications and training of any persons engaged in obtaining or analysing samples.

(2) In subsection (1), any reference to a person being required to provide a sample includes, in relation to a sample within section 307(3)(c), a reference to a person being required to consent to the taking from him of a sample.

(3) The results of any analysis of a sample provided pursuant to a requirement imposed under section 305(1) or section 306(2) are not admissible in evidence against any person in proceedings in respect of a service offence.

(4) Nothing in this Chapter limits the powers conferred by--

(a) any provision of the Road Traffic Act 1988 (c. 52), or

(b) any provision of an order under section 113(1) of PACE which makes provision equivalent to any provision of Part 5 of PACE (questioning and treatment of persons by police),

or affects the admissibility in any proceedings of evidence obtained under those powers.

Chapter 2 Contempt of Court

309 Offences of misbehaviour in court etc

(1) A qualifying service court has jurisdiction under this section to deal with any person ("the offender") who at a time when he is within subsection (6)--

(a) refuses to take an oath or make an affirmation when duly required by the court to do so;

(b) when a witness, refuses to answer any question which the court has lawfully required him to answer;

(c) when attending or brought before the court refuses to produce any document or other thing which is in his custody or under his control and which the court has lawfully required him to produce;

(d) intentionally interrupts the proceedings of the court or otherwise misbehaves in court; or

(e) intentionally insults or intimidates--

(i) any member of the court while that member is acting as such a member or is going to or returning from the court; or

(ii) any witness or other person whose duty it is to attend the court, while that witness or other person is attending the court or going to or returning from the court.

(2) If the offender is a person subject to service law or a civilian subject to service discipline, the court may--

(a) commit the offender to service custody for a specified period not exceeding 28 days;

(b) impose on him a fine not exceeding level 4 on the standard scale; or

(3) If the offender is not a person subject to service law or a civilian subject to service discipline, the court may impose on him a fine not exceeding level 4 on the standard scale.

(4) A qualifying service court may at any time revoke an order of committal made by it under this section and, if the offender is in custody, order his discharge.

(5) The following are qualifying service courts for the purposes of this section--

(a) the Court Martial;

(b) the Summary Appeal Court;

(6) A person is within this subsection at any time when--

(a) he is in the United Kingdom; or

(b) he is outside the United Kingdom but is subject to service law or is a civilian subject to service discipline.

310 Power to detain before dealing with section 309 offence

(1) Where a court with power to deal with a person under section 309 does not immediately exercise that power, it may order a service policeman, an officer of a UK police force or a member of court staff to take the offender into service custody and detain him in service custody until the rising of the court.

(2) If at the end of that detention--

(a) the court considers that a decision whether to exercise that power should not be taken without a further hearing, and

(b) any of the conditions in subsection (4) is satisfied,

the court may give orders for the further detention of the offender in service custody.

(3) An authorisation of detention under subsection (2) ends not more than 48 hours after the time when the offender was first detained under subsection (1).

(4) The conditions referred to in subsection (2)(b) are--

(a) that the court is satisfied that there are substantial grounds for believing that the offender, if released from service custody, would--

(i) fail to attend any hearing in the proceedings against him;

(ii) commit an offence while released; or

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

(b) that the court is satisfied that he should be kept in service custody for his own protection or, if he is aged under 17, for his own welfare or in his own interests;

(c) that the court is satisfied that it has not been practicable to obtain sufficient information for the purpose of deciding whether the condition in paragraph (a) or (b) is met.

(5) A person may use reasonable force, if necessary, in the exercise of any power arising from an order of a court under this section.

311 Certification to civil courts

(1) This section applies if, in relation to proceedings before a qualifying service court, a person within section 309(6) does any act ("the offence") that would constitute contempt of court if the proceedings were before a court having power to commit for contempt.

(2) The qualifying service court, unless it has exercised any power conferred by section 309 in relation to the offence, may certify the offence--

(a) if it took place in a part of the United Kingdom, to any court of law in that part of the United Kingdom which has power to commit for contempt;

(b) if it took place outside the United Kingdom, to the High Court in England and Wales.

(3) The court to which the offence is certified may inquire into the matter, and after hearing--

(a) any witness who may be produced against or on behalf of the person, and

(b) any statement that may be offered in defence,

may deal with him in any way in which it could deal with him if the offence had taken place in relation to proceedings before that court.

(4) Where under this section a qualifying service court certifies an offence, it may not exercise any power conferred by section 309 in relation to the offence.

(5) In this section--

"qualifying service court" has the same meaning as in section 309;
"act" includes an omission and references to the doing of an act are to be read accordingly.

312 Decisions of court under section 309: making and effect

(1) Nothing in--

(a) section 149 (findings etc of the SAC), or

(b) section 160 (findings etc of the Court Martial),

applies in relation to a decision of the Summary Appeal Court or the Court Martial under any of sections 309 to 311.

(2) Any such decision is to be taken by the judge advocate.

(3) Where the Court Martial or the Service Civilian Court commits a person to service custody under section 309, it may direct that the committal shall take effect from the end of any sentence of service detention--

(a) that has been passed on the person on a previous occasion; or

(b) (in the case of the Court Martial) that the court passes on the person on the same occasion.

(4) Where the Summary Appeal Court commits a person to service custody under section 309 it may direct that the committal shall take effect from the end of any sentence of service detention that has been passed on the person on a previous occasion.

(5) A court imposing a fine under section 309 may make an order under section 251 (power to allow payment by instalments), and in relation to such a fine section 251(2) to (7) have effect as if any reference to a service compensation order were omitted.

(6) In the provisions mentioned in subsection (7)--

(a) any reference to a sentence of service detention includes a reference to a committal to service custody under section 309; and

(b) references to persons sentenced to service detention are to be read accordingly.

(7) Those provisions are--

section 294 (rank or rate while in custody pursuant to sentence);
section 296 (prohibition of detention in a prison, etc);
section 300 (service custody etc rules);
section 301 (duration of sentences: persons unlawfully at large);
section 302 (remission on passing of custodial sentence);
section 303 (arrest by service police of persons unlawfully at large);
section 318 (arrest by civilian police of persons unlawfully at large).

Chapter 3 Arrest and Detention by Civil Authorities

Arrest for service offences

313 Arrest by civilian police under warrant of judge advocate

(1) Where a judge advocate is satisfied by evidence given under oath or affirmation that there are reasonable grounds for doing so, he may issue a warrant for the arrest of a person who is reasonably suspected of having committed a service offence.

(2) A warrant issued under this section--

(a) shall be addressed to an officer or officers of a UK police force or British overseas territory police force; and

(b) shall specify the name of the person for whose arrest it is issued and the offence which he is alleged to have committed.

(3) The Secretary of State may make rules with respect to the practice and procedure which is to apply in connection with warrants issued under this section.

(4) A person arrested under a warrant issued under this section must as soon as practicable be transferred to service custody.

Arrest etc for desertion or absence without leave

314 Arrest by civilian police of deserters and absentees without leave

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