Armed Forces Act 2006 (c. 52)

(The document as of February, 2008)

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(5) Subsection (4) does not apply if the matter has already been investigated in such way and to such extent as is appropriate.

Duty of service policeman following investigation

116 Referral of case following investigation by service or civilian police

(1) This section applies where--

(a) a service police force has investigated an allegation which indicates, or circumstances which indicate, that a service offence has or may have been committed; or

(b) a UK police force or overseas police force has investigated such an allegation or such circumstances and has referred the matter to a service police force.

(2) If--

(a) a service policeman considers that there is sufficient evidence to charge a person with a Schedule 2 offence, or

(b) a service policeman considers that there is sufficient evidence to charge a person with any other service offence, and is aware of circumstances of a description prescribed by regulations under section 128 for the purposes of this paragraph,

he must refer the case to the Director of Service Prosecutions ("the Director").

(3) If--

(a) a service policeman considers that there is sufficient evidence to charge a person with a service offence, and

(b) subsection (2) does not apply,

he must refer the case to the person's commanding officer.

(4) If--

(a) the allegation or circumstances gave rise to the duty under section 113(1) or 114(1), and

(b) a service policeman proposes not to refer the case to the Director under subsection (2),

he must consult the Director as soon as is reasonably practicable (and before any referral of the case under subsection (3)).

(5) For the purposes of subsections (2) and (3) there is sufficient evidence to charge a person with an offence if, were the evidence suggesting that the person committed the offence to be adduced in proceedings for the offence, the person could properly be convicted.

117 Section 116: position where investigation is of multiple offences or offenders

(1) This section applies where the investigation mentioned in section 116(1) relates to two or more incidents (or alleged incidents) or the conduct (or alleged conduct) of two or more persons.

(2) Each person's conduct in relation to each incident is to be regarded as giving rise to a separate case.

(3) If a case is referred under section 116(2) to the Director of Service Prosecutions--

(a) any other case of a description prescribed by regulations under section 128 for the purposes of this paragraph is to be treated as referred under section 116(2) to the Director of Service Prosecutions; and

(b) nothing in section 116(3) or (4) applies in relation to any case treated as so referred.

118 Duty of service policeman to notify CO of referral to DSP

(1) This section applies where a service policeman considers that there is sufficient evidence to charge a person ("A") with a service offence and refers the case under section 116(2) to the Director of Service Prosecutions.

(2) The service policeman must as soon as reasonably practicable after referring the case--

(a) notify A's commanding officer of the referral; and

(b) provide prescribed documents to A's commanding officer.

(3) A notification under subsection (2)(a) must specify--

(a) the service offence the service policeman considers there is sufficient evidence to charge A with; and

(b) where that offence is not a Schedule 2 offence, the circumstances he is aware of that are of a description prescribed as mentioned in section 116(2)(b).

(4) In this section--

(a) any reference to there being sufficient evidence to charge a person with a service offence is to be read in accordance with section 116(5);

(b) "prescribed documents" means documents prescribed for the purposes of subsection (2)(b) by regulations under section 128.

(5) Section 117(3)(a) (certain cases to be treated as referred under section 116(2)) does not apply for the purposes of this section.

Chapter 2 Charging and Mode of Trial

Powers of charging etc

119 Circumstances in which CO has power to charge etc

(1) This section sets out the circumstances in which a commanding officer has initial powers (defined by section 120) in respect of a case.

(2) If a commanding officer of a person becomes aware of an allegation which indicates, or circumstances which indicate, that the person has or may have committed a service offence, he has initial powers in respect of the case.

(3) Subsection (2) does not apply if the allegation or circumstances--

(a) give or have given rise to the duty under section 113(1) or 114(1);

(b) are being or have been investigated by a service police force; or

(c) are being or have been investigated by a UK police force or overseas police force, and it appears to the commanding officer that that force may refer the matter to the service police.

(4) A commanding officer has initial powers in respect of a case which a service policeman has referred to him under section 116(3) (referral of case following investigation by service or civilian police).

(5) A commanding officer has initial powers in respect of a case which the Director of Service Prosecutions has referred to him under section 121(4) (referral of case by DSP).

(6) If an allegation or circumstances mentioned in subsection (2) relate to two or more incidents (or alleged incidents) or the conduct (or alleged conduct) of two or more persons, each person's conduct in relation to each incident is to be regarded as giving rise to a separate case.

120 Power of CO to charge etc

(1) Subsections (2) and (3) apply where under section 119 a commanding officer has initial powers in respect of a case.

(2) The officer may bring, in respect of the case, one or more charges that are capable of being heard summarily (see section 52).

(3) The officer may refer the case to the Director of Service Prosecutions.

(4) A charge brought under subsection (2) is to be regarded for the purposes of this Part as allocated for summary hearing.

(5) Where an officer refers a case under subsection (3), any other case--

(a) which is of a description prescribed by regulations under section 128 for the purposes of this subsection, and

(b) as respects which the officer has initial powers,

is to be treated as referred under subsection (3) to the Director of Service Prosecutions.

121 Power of DSP to direct bringing of charge etc

(1) The powers in subsections (2) to (5) are exercisable by the Director of Service Prosecutions ("the Director") in respect of a case which has been referred to him under--

(a) section 116(2) (referral of case following investigation by service or civilian police); or

(b) section 120(3) (referral of case by CO).

(2) The Director may direct the commanding officer of the person concerned to bring, in respect of the case, such charge or charges against him as may be specified in the direction.

(3) If--

(a) the Director makes a direction under subsection (2), and

(b) the Service Civilian Court has jurisdiction to try the charge specified in the direction,

the Director may allocate the charge for trial by that court.

(4) The Director may refer the case to the commanding officer of the person concerned, but only if he has decided that it would not be appropriate to make a direction under subsection (2) in respect of it.

(5) The Director may make a direction under section 127(1) or (2) (directions barring further proceedings) in respect of any offence as regards which he could make a direction under subsection (2).

122 Charges brought at direction of DSP

(1) Where a direction under section 121(2) is given to an officer, he must bring the charge or charges specified in the direction.

(2) A charge brought as a result of such a direction--

(a) is to be regarded for the purposes of this Part as allocated for Service Civilian Court trial if the Director of Service Prosecutions allocated it (under section 121(3)) for trial by that court;

(b) otherwise, is to be regarded for the purposes of this Part as allocated for Court Martial trial.

Powers of commanding officer or DSP after charge etc

123 Powers of CO after charge

(1) This section applies where a charge against a person ("the accused") is for the time being regarded for the purposes of this Part as allocated for summary hearing.

(2) The accused's commanding officer may--

(a) amend the charge;

(b) substitute for the charge another charge against the accused;

(d) discontinue proceedings on the charge;

(e) refer the charge to the Director of Service Prosecutions.

(3) The powers under subsection (2) may be exercised before or after the start of any summary hearing of the charge.

(4) Any amended, substituted or additional charge under subsection (2)(a) to (c) must be capable of being heard summarily (see section 52).

(5) Any additional charge brought under subsection (2)(c) must be in respect of the case as respects which the charge mentioned in subsection (1) was brought.

(6) Any amended, substituted or additional charge under subsection (2)(a) to (c) is to be regarded for the purposes of this Part as allocated for summary hearing.

(7) Where a charge is referred under subsection (2)(e) to the Director of Service Prosecutions, the charge and any other charge brought in respect of the same case are to be regarded for the purposes of this Part as allocated for Court Martial trial.

124 CO to hear charge allocated for summary hearing

(1) This section applies in respect of a charge which is regarded for the purposes of this Part as allocated for summary hearing.

(2) The accused's commanding officer must hear the charge summarily unless--

(a) he exercises his powers under section 123(2)(b), (d) or (e) in respect of the charge (substitution of charge, discontinuance of proceedings, or referral to DSP); or

(b) the accused elects Court Martial trial of the charge (see section 129).

(3) Subsection (2) is subject to sections 52 (charges capable of being heard summarily) and 54 (charges which may be heard summarily only with permission or by senior officer).

125 Powers of DSP in respect of charge allocated for Court Martial trial

(1) This section applies where a charge against a person ("the accused") is for the time being regarded for the purposes of this Part as allocated for Court Martial trial.

(2) The Director of Service Prosecutions may--

(a) amend the charge;

(b) substitute for the charge another charge against the accused;

(d) discontinue proceedings on the charge;

(e) refer the charge to the accused's commanding officer, but only if the charge is capable of being heard summarily (see section 52);

(f) allocate the charge for trial by the Service Civilian Court, but only if the charge is one that that court has jurisdiction to try;

(g) make a direction under section 127(1) or (2) (directions barring further proceedings) in respect of the offence charged or any offence that could be charged under paragraph (c) above.

(3) Court Martial rules may restrict the exercise of powers under subsection (2)--

(a) after arraignment by the Court Martial;

(b) after referral of the charge to the Court Martial under section 279(4) or 280(3) (referral by SCC); or

(c) where the charge is in respect of an offence which would be a relevant offence for the purposes of section 165 (election for trial by Court Martial) if the accused were convicted or acquitted of it.

(4) Subsection (3)(c) does not apply in relation to powers under subsection (2)(e) (which are restricted by section 130).

(5) Any additional charge brought under subsection (2)(c) must be in respect of the case as respects which the charge mentioned in subsection (1) was brought.

(6) Any amended, substituted or additional charge under subsection (2)(a) to (c) is to be regarded for the purposes of this Part as allocated for Court Martial trial.

(7) Any charge referred under subsection (2)(e) to a commanding officer is to be regarded for the purposes of this Part as allocated for summary hearing.

(8) Any charge allocated under subsection (2)(f) is to be regarded for the purposes of this Part as allocated for Service Civilian Court trial.

126 Powers of DSP in respect of charge allocated for SCC trial

(1) This section applies where a charge against a person ("the accused") is for the time being regarded for the purposes of this Part as allocated for Service Civilian Court trial.

(2) The Director of Service Prosecutions may--

(a) amend the charge;

(b) substitute for the charge another charge against the accused;

(d) discontinue proceedings on the charge;

(e) allocate the charge for trial by the Court Martial;

(f) make a direction under section 127(1) or (2) (directions barring further proceedings) in respect of the offence charged or any offence that could be charged under paragraph (c) above.

(3) SCC rules may restrict the exercise, after a decision by the Service Civilian Court under section 279 as to whether it should try the charge, of powers under subsection (2).

(4) Any amended, substituted or additional charge under subsection (2)(a) to (c) must be one that the Service Civilian Court has jurisdiction to try.

(5) Any additional charge brought under subsection (2)(c) must be in respect of the case as respects which the charge mentioned in subsection (1) was brought.

(6) Any amended, substituted or additional charge under subsection (2)(a) to (c) is to be regarded for the purposes of this Part as allocated for Service Civilian Court trial.

(7) Any charge allocated under subsection (2)(e) is to be regarded for the purposes of this Part as allocated for Court Martial trial.

Chapter 3 Supplementary

127 Directions by DSP barring further proceedings

(1) A direction under this subsection is a direction that for the purposes of section 63 the person specified in the direction is to be treated as acquitted of the service offence so specified.

(2) A direction under this subsection is a direction that for the purposes of sections 63 and 64 the person specified in the direction is to be treated as acquitted of the service offence so specified.

128 Regulations for purposes of Part 5

(1) The Secretary of State may by regulations make such provision as he considers necessary or expedient for the purposes of any provision of this Part.

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

(a) for the delegation by a commanding officer of any of his functions;

(b) as to the bringing, amendment and substitution of charges;

(c) as to the referral of cases and charges, including provision requiring a commanding officer in prescribed circumstances to refer a case or charge to the Director of Service Prosecutions;

(d) as to the examination of witnesses for the purpose of obtaining information of assistance to the Director of Service Prosecutions in connection with his functions under Chapter 2;

(e) requiring prescribed persons to be notified of prescribed matters.

(3) In subsection (2) "prescribed" means prescribed by regulations under this section.

Part 6 Summary Hearing and Appeals and Review

Chapter 1 Summary Hearing

Right to elect Court Martial trial

129 Right to elect Court Martial trial

(1) Before hearing a charge summarily the commanding officer must, in the way specified by rules under section 153, give the accused the opportunity of electing Court Martial trial of the charge.

(2) If the accused elects Court Martial trial of the charge--

(a) the commanding officer must refer the charge to the Director of Service Prosecutions; and

(b) the charge is to be regarded for the purposes of Part 5 as allocated for Court Martial trial.

(3) Where two or more charges against the accused are to be heard summarily together, an election for Court Martial trial in respect of any of the charges takes effect as an election in respect of all of them.

(4) Where, after the start of a summary hearing--

(a) a charge is amended under section 123(2)(a),

(b) a charge is substituted for another charge under section 123(2)(b), or

this section applies in relation to the amended, substituted or additional charge as if the reference in subsection (1) to hearing a charge summarily were a reference to proceeding with the hearing.

130 Further consequences of election for Court Martial trial

(1) This section applies where the accused has elected Court Martial trial of a charge.

(2) The Director of Service Prosecutions ("the Director") may not without the written consent of the accused refer to a commanding officer, under section 125(2)(e)--

(a) that charge (whether or not amended by the Director), or

(b) any charge substituted under section 125(2)(b) or additionally brought under section 125(2)(c).

(3) Where a charge mentioned in subsection (2) is referred under section 125(2)(e), the accused may not elect Court Martial trial of the charge (and accordingly section 129(1) does not apply in respect of the charge); but this does not apply if the charge is amended after referral.

Summary hearing

131 Summary hearing

(1) This section applies where a commanding officer hears a charge summarily.

(2) The commanding officer may dismiss the charge at any stage of the hearing; but this is subject to subsection (4) and to any provision of rules under section 153.

(3) If the commanding officer determines that the charge has not been proved, he must dismiss the charge.

(4) If the commanding officer determines that the charge has been proved, he must--

(a) record a finding that the charge has been proved; and

(b) award one or more of the punishments authorised by section 132.

(5) Where the commanding officer records findings that two or more charges against a person have been proved, the award he must make under subsection (4) is a single award (consisting of one or more of those punishments) in respect of the charges taken together.

(6) Nothing in this section authorises a commanding officer to include in an award two or more punishments within the same row of the Table in section 132, except where those punishments are--

(a) different minor punishments which regulations made under row 7 of the Table permit to be awarded together; or

(b) service compensation orders.

Punishments available to commanding officer

132 Punishments available to commanding officer

(1) The second column of the following Table lists the punishments that may be awarded by a commanding officer who has heard a charge summarily, subject in the case of each punishment to any limitation shown in the third column opposite it.

TABLE

Row Number	Punishment	Limitation
1	detention for a term not exceeding the maximum allowed by section 133	only if the person being punished is of or below the rank of-- (a) leading rate; (b) lance corporal or lance bombardier; (c) corporal in any of Her Majesty's air forces
2	forfeiture of a specified term of seniority or of all seniority	only if the person being punished is an officer, and only in accordance with section 134
3	reduction in rank, or disrating	only if the person being punished is a warrant officer or non-commissioned officer, only in accordance with section 135, and not to an extent prohibited by regulations under section 135(4)
4	a fine not exceeding the maximum amount allowed by section 136
5	a severe reprimand or a reprimand	only if the person being punished is an officer, warrant officer or non-commissioned officer
6	a service supervision and punishment order (defined by section 173)	only if the person being punished is an able rate, marine, soldier or airman
7	such minor punishments as may from time to time be authorised by regulations made by the Defence Council
8	a service compensation order (defined by section 175) of an amount not exceeding the maximum allowed by section 137

(2) Subsection (1) is subject to (in particular)--

(a) section 138 (prohibited combinations of punishments) and any regulations made under that section;

(b) Chapter 1 of Part 9 (general provisions about sentencing).

(3) Where regulations under row 7 of the Table authorise a minor punishment, they may--

(a) confer on the offender's commanding officer a power, when awarding the punishment, to direct that the punishment shall take effect from a date after the date of the award;

(b) confer on the offender's commanding officer the function of deciding the details of the punishment;

133 Detention: limits on powers

(1) The maximum term of detention that a commanding officer may award under row 1 of the Table in section 132 to an able rate, marine, soldier or airman is--

(a) 90 days if the commanding officer has extended powers for the purposes of this subsection;

(b) otherwise, 28 days.

(2) A commanding officer may not award detention under row 1 of the Table in section 132 to a person of any of the following ranks--

(a) leading rate,

(b) lance corporal or lance bombardier,

unless the commanding officer has extended powers for the purposes of this subsection; and the maximum term of detention that a commanding officer may (if he has those powers) award such a person is 90 days.

(3) A commanding officer has extended powers for the purposes of subsection (1) or (2) if he has, before the summary hearing of the charge or charges--

(a) applied to higher authority for extended powers for the purposes of that subsection; and

(b) been notified by higher authority that his application has been granted.

(4) A commanding officer also has extended powers for the purposes of subsection (1) or (2) if he is of or above the rank of rear admiral, major-general or air vice-marshal.

134 Forfeiture of seniority: requirement for approval

(1) A commanding officer may not award forfeiture of seniority under row 2 of the Table in section 132 unless he has extended powers for the purposes of this section.

(2) A commanding officer has extended powers for the purposes of this section if he has, before the summary hearing of the charge or charges--

(a) applied to higher authority for extended powers for the purposes of this section; and

(b) been notified by higher authority that his application has been granted.

(3) A commanding officer also has extended powers for the purposes of this section if he is of or above the rank of rear admiral, major-general or air vice-marshal.

135 Reduction in rank: limits on powers

(1) A commanding officer may not award reduction in rank, or disrating, under row 3 of the Table in section 132 unless--

(a) he has extended powers for the purposes of this subsection; or

(b) the person being punished is a lance corporal or lance bombardier.

(2) The reduction in rank or disrating that a commanding officer may award is reduction or disrating--

(a) by one acting rank or rate; or

(b) if the person being punished has no acting rank or rate, by one substantive rank or rate.

(3) Where the person being punished is a corporal in any of Her Majesty's air forces, the reduction in rank authorised by subsection (2)(a) (if he is an acting corporal) or (2)(b) (if he is not) is reduction to the highest rank he has held in that force as an airman.

(4) The Defence Council may by regulations provide that persons of a trade or branch specified in the regulations may not be reduced or disrated under section 132 below a rank or rate so specified.

(5) A commanding officer has extended powers for the purposes of subsection (1) if he has, before the summary hearing of the charge or charges--

(a) applied to higher authority for extended powers for the purposes of that subsection; and

(b) been notified by higher authority that his application has been granted.

(6) A commanding officer also has extended powers for the purposes of subsection (1) if he is of or above the rank of rear admiral, major-general or air vice-marshal.

136 Fine: maximum amount

(1) The maximum amount of a fine that a commanding officer may award is--

(a) 28 days' pay unless paragraph (b) applies;

(b) if the person being punished is an officer or warrant officer and the commanding officer does not have extended powers for the purposes of this paragraph, 14 days' pay.

(2) A commanding officer has extended powers for the purposes of paragraph (b) of subsection (1) if he has, before the summary hearing of the charge or charges--

(a) applied to higher authority for extended powers for the purposes of that paragraph; and

(b) been notified by higher authority that his application has been granted.

(3) A commanding officer also has extended powers for the purposes of that paragraph if he is of or above the rank of rear admiral, major-general or air vice-marshal.

(4) For the purposes of this section a day's pay is--

(a) subject to paragraph (b), the gross pay which is (or would apart from any forfeiture be) issuable to the offender in respect of the day when the punishment is awarded;

(b) if the offender is a special member of a reserve force, the gross pay which would have been issuable to him in respect of that day if he had been an ordinary member of that reserve force of the same rank or rate.

(5) If the offender is a member of a reserve force who is not on duty on the day the punishment is awarded, for the purposes of subsection (4) he is to be taken to have been on duty then.

(6) In subsection (4) "special member" and "ordinary member" have the same meanings as in the Reserve Forces Act 1996 (c. 14).

137 Service compensation orders: maximum amount

(1) Where an award by a commanding officer consists of or includes one service compensation order, the compensation to be paid under the order must not exceed £1,000.

(2) Where an award by a commanding officer consists of or includes two or more service compensation orders, the total compensation to be paid under the orders must not exceed £1,000.

(3) If it appears to the Secretary of State that there has been a change in the value of money since the relevant date, he may by order substitute for the sum for the time being specified in subsections (1) and (2) such other sum as appears to him justified by the change.

(4) In subsection (3) "the relevant date" means--

(a) the date of the coming into force of this section; or

(b) where the sum for the time being specified in subsections (1) and (2) was substituted for a sum previously so specified, the date of the substitution.

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