Armed Forces Act 2006 (c. 52)

(The document as of February, 2008)

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314 Arrest by civilian police of deserters and absentees without leave

(1) An officer of a UK police force or British overseas territory police force may arrest without a warrant a person ("a relevant suspect") who is reasonably suspected of being a person subject to service law who has deserted or is absent without leave.

(2) If an authorised person is satisfied by evidence given under oath or affirmation that a relevant suspect is or is reasonably suspected of being within his jurisdiction, he may issue a warrant for the arrest of the relevant suspect.

(3) In subsection (2) "authorised person" means a person who has authority in a relevant territory to issue a warrant for the arrest of a person suspected of an offence.

(4) A person arrested under this section must as soon as practicable be brought before a court of summary jurisdiction in the relevant territory in which he was arrested.

(5) In this section "relevant territory" means--

(a) England and Wales;

(b) Scotland;

(d) the Isle of Man; or

(e) a British overseas territory.

315 Deserters and absentees without leave surrendering to civilian police

(1) Where--

(a) a person surrenders to a civilian policeman as being a person subject to service law who has deserted or is absent without leave, and

(b) the surrender occurs at a place in a relevant territory which is not a police station,

he must be taken to a police station.

(2) Subsection (3) applies where a person--

(a) is brought to a police station under subsection (1), or

(b) surrenders to a civilian policeman, at a police station in a relevant territory, as being a person subject to service law who has deserted or is absent without leave.

(3) The person in charge of the police station, or a person authorised by him, must consider the case.

(4) If it appears to the person considering the case that the person who has surrendered is a person subject to service law who has deserted or is absent without leave, he may--

(a) arrange for him to be transferred to service custody;

(b) arrange for him to be brought, as soon as practicable, before a court of summary jurisdiction in the relevant territory in which the police station is situated; or

(c) release him subject to a condition that he reports, at or by such time as may be specified in the condition, to such place or person as may be so specified for the purpose of enabling him to be taken into service custody.

(5) In this section "civilian policeman" means an officer of a UK police force or British overseas territory police force.

(6) In this section "relevant territory" has the same meaning as in section 314.

316 Proceedings before civilian court where person suspected of illegal absence

(1) This section applies where a person is brought before a court of summary jurisdiction in a relevant territory under section 314(4) or 315(4)(b).

(2) Subsection (3) applies if--

(a) the person admits to the court that he is a person subject to service law who has deserted or is absent without leave; or

(b) the court has in its possession evidence of a description prescribed by regulations made by the Secretary of State.

(3) Where this subsection applies--

(a) if the person is not in custody for some other cause, the court must either--

(i) arrange for him to be transferred to service custody; or

(ii) release him subject to a condition that he reports, at or by such time as may be specified in the condition, to such place or person as may be so specified for the purpose of enabling him to be taken into service custody;

(b) if the person is in custody for some other cause, the court may arrange for him to be transferred to service custody.

(4) Where subsection (3) does not apply--

(a) if the person is not in custody for some other cause, the court must release him;

(b) if the person is in custody for some other cause, the court may release him.

(5) If there is likely to be a delay before a person can be transferred to service custody under subsection (3)(a)(i) or (b), the court may commit him to be held in custody pending his transfer--

(a) in a prison,

(b) in a police station, or

which is situated in the relevant territory in which the court is situated.

(6) The release of a person under subsection (4) does not prevent him from being subsequently arrested under section 67, or under a warrant issued under section 313, as a person who is reasonably suspected of having committed an offence under section 8 or 9.

(7) In this section "relevant territory" has the same meaning as in section 314.

317 Warrant for the arrest of persons released under section 315(4)(c) or 316(3)(a)(ii)

(1) Where a person who is released under section 315(4)(c) or 316(3)(a)(ii) fails to comply with the condition subject to which he was released, a warrant for his arrest may be issued--

(a) where he was released under section 315(4)(c), by a judge advocate;

(b) where he was released under section 316(3)(a)(ii), by a judge advocate or by a person who is authorised to issue the warrant by the court that imposed the condition.

(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.

(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 by judge advocates.

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

Arrest of persons unlawfully at large

318 Arrest by civilian police of persons unlawfully at large

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

(a) may be arrested without a warrant by an officer of a UK police force or British overseas territory police force; 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.

Supplementary

319 Certificates in connection with transfer to service custody etc

(1) The Secretary of State may by regulations make provision requiring a certificate to be supplied when a person--

(a) is transferred to service custody under this Chapter; or

(b) is released under section 315(4)(c) or 316(3)(a)(ii).

(2) Regulations under this section may in particular make provision with respect to--

(a) the information to be included in a certificate;

(b) the person who is to sign a certificate;

(d) the payment of a fee for the supply of a certificate.

320 Power to use reasonable force

Where a power of arrest is conferred on any person by virtue of this Chapter, he may use reasonable force, if necessary, in the exercise of the power.

Chapter 4 Powers of the Criminal Cases Review Commission

321 Powers of the Criminal Cases Review Commission

Schedule 11 (powers of the Criminal Cases Review Commission) has effect.

Chapter 5 Supplementary

Financial penalty enforcement orders

322 Financial penalty enforcement orders

(1) The Secretary of State may by regulations make provision for the purpose of enabling the Defence Council, or persons authorised by them, to make orders for the enforcement of financial penalties by prescribed courts in England and Wales, Scotland, Northern Ireland or the Isle of Man.

(2) Regulations under this section may in particular make provision--

(a) with respect to the cases in which such orders may be made;

(b) with respect to the form and content of such orders, including the matters to be certified in such orders;

(d) conferring functions in relation to such orders on the Defence Council;

(e) for the delegation by the Defence Council of any of their functions in relation to such orders.

(3) Provision that may be made by the regulations by virtue of subsection (2)(c) includes provision--

(a) that a sum certified in such an order as outstanding is to be treated as if it had been a fine imposed on a conviction by a court specified in the order;

(b) for prescribed enforcement procedures to cease to be available, or to become available, on the occurrence of prescribed events.

(4) In this section--

"financial penalty" means--
(a)
a fine or service compensation order imposed by virtue of this Act (including a fine or service compensation order with respect to which an order under section 268 (order for service parent or guardian to pay fine or compensation) has been made);
(b)
a sum adjudged to be paid under section 236(3) (forfeiture of recognizance);
(c)
an order as to the payment of costs made by virtue of regulations under section 26, or made under section 27, of the Armed Forces Act 2001 (c. 19);
"prescribed" means prescribed, or of a description prescribed, by regulations under this section.

Power to make provision in consequence of criminal justice enactments

323 Power to make provision in consequence of criminal justice enactments

(1) The Secretary of State may make an order under this section if he considers it appropriate to do so in consequence of a criminal justice enactment (see section 324).

(2) An order under this section may make provision in relation to--

(a) service policemen,

(b) service courts (see section 324),

(d) civilians subject to service discipline, or

(e) service law proceedings (see section 324),

which is equivalent to that made by a relevant provision, subject to such modifications as the Secretary of State considers appropriate.

(3) In this section "relevant provision" means--

(a) the criminal justice enactment;

(b) any enactment relating to a criminal justice matter (see section 324) which is amended by the criminal justice enactment; or

(i) the criminal justice enactment; or

(ii) any Act which is amended by the criminal justice enactment.

(4) An order under this section may make provision in such way as the Secretary of State considers appropriate and may, in particular--

(a) be made in relation to all or any cases to which the order-making power extends;

(b) apply the relevant provision (with or without modifications);

(c) amend, repeal or revoke any enactment or subordinate legislation (including the relevant provision and any provision of or made under this Act).

324 Section 323: definitions

(1) In section 323 a "criminal justice enactment" means an enactment which--

(a) is contained in an Act passed after 1st January 2001; and

(b) amends the law of England and Wales relating to any criminal justice matter.

(2) In section 323 and subsection (1) "criminal justice matter" means--

(a) the powers of the police in connection with the investigation of offences or the detection of offenders;

(b) powers of arrest and detention in connection with crime or criminal proceedings;

(d) remand in custody or on bail;

(e) the rights and duties of a defendant in relation to proceedings in civilian courts;

(f) evidence or procedure in civilian courts;

(g) the powers of civilian courts, including powers in relation to sentence;

(h) such other matters relating to criminal justice as the Secretary of State may by order prescribe for the purposes of this paragraph.

(3) For the purposes of section 323, section 5 of the Criminal Justice (International Co-operation) Act 1990 (c. 5) (transfer of UK prisoner to give evidence etc overseas) is to be taken to be a criminal justice enactment.

(4) In section 323 "service court" means--

(a) the Court Martial;

(b) the Summary Appeal Court;

(d) the Court Martial Appeal Court; or

(e) the Supreme Court on an appeal brought from the Court Martial Appeal Court.

(5) In section 323 "service law proceedings" means proceedings under this Act or the Court Martial Appeals Act 1968 (c. 20) (and does not include proceedings relating to offences under sections 344 to 346 or under regulations made by virtue of section 328(4)(b) or 343(5)(b)).

Other supplementary provisions

325 Evidential burden as respects excuses

(1) This section applies to an offence under any of sections 1 to 41, 107, 229, 266 and 306 which is such that a person who would otherwise commit the offence--

(a) does not do so if he has a lawful excuse; or

(b) does not do so if he has a reasonable excuse.

(2) In proceedings for an offence to which this section applies, the defendant is to be treated as not having had a lawful excuse or reasonable excuse (as the case may be) unless sufficient evidence is adduced to raise an issue as to whether he had such an excuse.

326 Exclusion of enactments requiring consent of Attorney General or DPP

Subject to section 61(2), no enactment requiring the consent of the Attorney General or the Director of Public Prosecutions in connection with any proceedings has effect in relation to proceedings under this Act for a service offence.

327 Local probation boards

For section 5A of the Criminal Justice and Court Services Act 2000 (c. 43) (inserted by Schedule 16 to this Act) substitute--

" 5A Local probation boards and service justice

(1) A local probation board may, in pursuance of arrangements made with the Secretary of State, carry out activities anywhere in the world in relation to persons who are or have been subject to proceedings before the Court Martial, the Summary Appeal Court or the Service Civilian Court.

(2) Any activities carried out in relation to such persons must correspond to activities which the board is required or authorised to carry out in relation to persons who have been charged with or convicted of criminal offences. "

Second Group of Parts Miscellaneous Matters

Part 14 Enlistment, Terms of Service etc

Enlistment, terms of service etc

328 Enlistment

(1) The Defence Council may by regulations make provision with respect to the enlistment of persons in the regular forces (including enlistment outside the United Kingdom).

(2) The regulations may in particular make provision--

(a) requiring the enlistment of persons in the regular forces to be undertaken by recruiting officers;

(b) as to the persons, whether or not members of the regular forces, who may be appointed as recruiting officers;

(d) deeming a person, in prescribed circumstances, to have attained (or not to have attained) that age;

(e) as to the procedure for enlistment (including requiring a recruiting officer to attest the enlistment);

(f) creating offences relating to knowingly giving false answers during the enlistment procedure;

(g) as to the approval for service of persons who have enlisted.

(3) The regulations may also in particular make provision in connection with the validity of a person's enlistment, including provision--

(a) as to when, how and on what basis the validity of a person's enlistment may be challenged;

(b) deeming a person, in prescribed circumstances, to have been validly enlisted;

(d) as to the status of a person until he is discharged.

(4) Where the regulations create an offence they may provide--

(a) that the offence is a service offence and is punishable by any punishment mentioned in rows 2 to 12 of the Table in section 164; or

(b) that the offence is an offence triable summarily by a civilian court in the United Kingdom and is punishable by a fine not exceeding level 1 on the standard scale.

(5) In this section and sections 329 to 331 "prescribed" means prescribed by regulations made by the Defence Council.

329 Terms and conditions of enlistment and service

(1) The Defence Council may by regulations make provision with respect to the terms and conditions of enlistment and service of persons enlisting, or who have enlisted, in the regular forces.

(2) The regulations may in particular make provision for the purposes of--

(a) specifying the duration of the term for which a person is enlisted (whether by reference to a number of years or another criterion or both);

(b) requiring any such term to be one of service with a regular force, or to be in part service with a regular force and in part service with a reserve force;

(c) enabling a person to end his service with a regular force at a prescribed time, or to transfer at a prescribed time to a reserve force;

(d) restricting a person, in consideration of the acceptance by him of any benefit or advantage, from exercising any right referred to in paragraph (c);

(e) enabling a person enlisted for a term of service of a prescribed description to be treated as if he had enlisted for a term of service of a different description;

(f) enabling a person to extend or reduce the term of his service (whether with a regular force or a reserve force, or both);

(g) enabling a person to continue in service after completion of the term of his service;

(h) enabling a person in a reserve force to re-enter service with a regular force;

(i) enabling a person to restrict his service to service in a particular area;

(j) requiring a person who has restricted his service to service in a particular area to serve outside that area for a number of days in any year not exceeding a prescribed maximum.

(3) The exercise of any right conferred on a person by virtue of subsection (2) may be made subject to prescribed conditions.

(4) The Defence Council may also by regulations make provision enabling--

(a) a member of the regular army of or below the rank of warrant officer, or

(b) a member of the Army Reserve of or below the rank of warrant officer who is in permanent service on call-out under any provision of the Reserve Forces Act 1980 (c. 9) or the Reserve Forces Act 1996 (c. 14),

to be transferred between corps without his consent in prescribed circumstances.

(5) Regulations under subsection (4) may in particular make provision for varying the terms and conditions of service of a person transferred between corps.

(6) In this section "corps" means any body of the regular army that may from time to time be declared by Royal Warrant to be a corps.

330 Desertion and absence without leave: forfeiture of service etc

(1) The Defence Council may by regulations make provision--

(a) with respect to the making of a confession by a member of the regular forces that he is guilty of an offence under section 8 (desertion);

(b) for the making of a determination as to whether a trial may be dispensed with in the case of a person who makes such a confession;

(2) The Defence Council may also by regulations make provision for the forfeiture of a period of service of a member of the regular forces who is convicted of an offence under section 8.

(3) Regulations under subsection (1) or (2) may include provision for enabling a determination to be made in prescribed circumstances restoring (in whole or in part) a forfeited period of service.

(4) The Defence Council may also by regulations make provision with respect to--

(a) the issue of a certificate of absence in respect of a member of the regular forces absent without leave for more than a prescribed period;

(b) the effects of such a certificate (in particular in connection with the pay and allowances of the person in respect of whom it is issued).

331 Discharge etc from the regular forces and transfer to the reserve forces

(1) The Defence Council may by regulations make provision with respect to--

(a) the discharge of members of the regular forces of or below the rank or rate of warrant officer;

(b) the transfer of such persons to the reserve forces.

(2) The regulations may in particular make provision with respect to--

(a) authorisation of a person's discharge or transfer to a reserve force;

(b) the status of a person who is entitled to be, but has not yet been, discharged or transferred to a reserve force.

(3) The regulations may also in particular make provision conferring on a warrant officer (other than an acting warrant officer) a right to be discharged--

(a) following his reduction in rank or rate; or

(b) following his reduction in rank or rate in prescribed circumstances.

(4) The regulations may also in particular make provision enabling--

(a) the discharge of a person from the regular forces (including by virtue of subsection (3)), or

(b) the transfer of a person to a reserve force,

to be postponed in prescribed circumstances.

332 Restriction on administrative reduction in rank or rate

(1) The rank or rate of a warrant officer or non-commissioned officer ("the relevant person") may be reduced only by an order within subsection (2).

(2) An order is within this subsection if--

(a) it is made by the relevant person's commanding officer; and

(b) it reduces the rank or rate of the relevant person--

(i) by one acting rank or rate; or

(ii) if he has no acting rank or rate, by one substantive rank or rate.

(3) An order reducing the rank of a person who is a corporal in any of Her Majesty's air forces is within subsection (2)(b)(i) (if he is an acting corporal) or (2)(b)(ii) (if he is not) if, and only if, it reduces his rank to the highest rank he has held in that force as an airman.

(4) A commanding officer who is of or below the rank of commodore, brigadier or air commodore may make an order within subsection (2) only with the permission of higher authority; but this does not apply if the relevant person is a lance corporal or lance bombardier.

(5) Nothing in this section applies to a reduction in rank or rate by virtue of a sentence.

(6) Nothing in this section applies in relation to the reversion of a person, otherwise than on account of his conduct, from his acting rank or rate to his substantive rank or rate.

333 Pay, bounty and allowances

(1) Her Majesty may by warrant make provision with respect to pay, bounty and allowances for members of the regular or reserve forces.

(2) A Royal Warrant made under this section may in particular--

(a) provide for the way in which pay, bounty and allowances are to be paid;

(b) impose conditions or restrictions on the making of such payments;

(3) Provision that may be made by virtue of subsection (2)(b) includes in particular provision authorising the making of a deduction from a payment to a person--

(a) in respect of anything (including any service) supplied to him;

(b) in order to recover any overpayment or advance; or

(4) For the purposes of subsection (3)(c) a payment is "relevant" if--

(a) it was made on condition that it would or might be repayable in specified circumstances; and

(b) any such circumstance has occurred.

(5) A Royal Warrant under this section may not authorise the forfeiture of pay.

(6) A Royal Warrant under this section may not make provision about money distributable under the Naval Agency and Distribution Act 1864 (c. 24).

(7) Section 373(5) (power to make supplementary provision etc) applies in relation to Royal Warrants under this section.

(8) A Royal Warrant under this section may be amended or revoked by a further Royal Warrant under this section.

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