2001 Chapter 19

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These notes refer to the Armed Forces Act 2001 (c.19)
which received Royal Assent on 11 May 2001

ARMED FORCES ACT 2001

EXPLANATORY NOTES

INTRODUCTION

2.     These notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or part of a section does not seem to require any explanation or comment, none is given.

SUMMARY

3.     Part 1 of the Act extends the life of the legislation relating to discipline and certain other matters in the armed forces. The subjects dealt with in other Parts of the Act are broadly as follows:

• The establishment of procedures for the exercise by Service police and commanding officers of powers of entry and seizure, in the course of investigations into offences under the Service discipline Acts (SDAs) (Part 2)

• Various changes to the procedures for the trial and punishment of offences under the SDAs (Part 3). These include extending the scope for dealing summarily with offences allegedly committed by officers; extending eligibility for court-martial membership to warrant officers; enabling the Attorney General to seek review of certain sentences imposed by courts-martial; excluding most court-martial proceedings from the possibility of judicial review; clarifying Service courts' powers to compel the production of evidence or the attendance of witnesses; and the creation of a power for Service courts to make orders as to costs.

• A power for the Secretary of State to make orders applying changes in civilian criminal justice legislation to the armed forces; and other miscellaneous provisions (Part 4).

BACKGROUND

The statutory framework for discipline in the armed forces

4.     The three armed services operate within a statutory framework of discipline which applies wherever in the world they are based, whether in peace or in times of conflict. In effect, this means that they have their own legal system, although much of this follows the domestic law of England and Wales. The statutory basis for this system is the Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957, referred to collectively as the Service discipline Acts (SDAs). These Acts have a finite life, and Parliament has to be asked to renew them every five years. This is achieved by the five-yearly Armed Forces Acts, which are also used as the main vehicles for amending the SDAs. The last was the Armed Forces Act 1996.

5.     The SDAs, particularly the Army Act 1955 and the Air Force Act 1955, deal both with discipline and with other matters. There is also other legislation which relates to discipline in the armed forces, such as the Courts-Martial (Appeals) Acts of 1951 and 1968 and a number of free-standing provisions in the Armed Forces Acts. Other legislation, which affects the armed forces but less directly, was also considered in the review which led to the provisions included in the Act, e.g. the Marriage Act 1949.

6.     The SDAs apply at all times to full-time members of the armed forces. A table of armed forces ranks appears at the end of these notes. Parts of the SDAs also apply, in certain circumstances, to other people. Although the provisions which describe when and to whom they apply are quite complex, broadly speaking the disciplinary provisions in the SDAs apply to members of the volunteer reserve forces and to certain civilians. Officers in the reserve forces are subject to the SDAs at all times because they hold a commission. The detail of when ratings and other ranks in the reserve forces are subject to the SDAs is contained in the Acts themselves but, at it simplest level, it is when they are undergoing training or fulfilling a duty. Civilians working for or in connection with the Services outside the United Kingdom are subject to the SDAs. This will include relevant civil servants and certain contractors. A further category of civilians subject to the SDAs is members of families residing overseas with Service personnel or with civilians who are themselves subject to the SDAs. Finally, the Services retain the ability to investigate and deal with offences alleged against persons (primarily former members of the armed forces) who are no longer subject to the SDAs but who were when the alleged offence was committed.

7.     Discipline can be administered either summarily by the commanding officer (or by a more senior officer, usually called an "appropriate superior authority") or by a Service court. There are four Service courts:

• A court-martial exercises an extensive jurisdiction (including jurisdiction equivalent to that of the Crown Court). Within the United Kingdom, a court-martial can only deal with cases involving Service personnel. Overseas, a court-martial can deal with cases involving anyone subject to the SDAs. A court-martial can also hear appeals against the findings or sentences of Standing Civilian Courts.

• A summary appeal court is an appellate court which hears appeals against the findings or sentences of a commanding officer or appropriate superior authority who has dealt with a matter summarily.

• Standing Civilian Courts operate overseas and only deal with civilians who are subject to the SDAs whilst overseas. They exist only under the Army and Air Force Acts, as dependants of Royal Navy personnel do not generally live on bases abroad. These courts are similar to magistrates' courts.

• The Courts-Martial Appeal Court hears appeals against the findings or sentences of courts-martial.

8.     The Courts-Martial Appeal Court comprises civilian judges from the Court of Appeal (of England and Wales) or its Scottish or Northern Irish equivalents. Standing Civilian Courts have a magistrate, who is always a judge advocate. Courts-martial and the summary appeal court have a judge advocate, whose role is similar in most respects to that of a judge in a civil court. In Army and Air Force courts, a judge advocate is a civilian lawyer appointed by the Judge Advocate General, who is responsible to the Lord Chancellor. The Royal Navy have uniformed judge advocates (who are naval barristers of at least five years standing) appointed by the Chief Naval Judge Advocate.

9.     Judicial officers carry out certain functions under the SDAs. They need to have similar minimum qualifications to a judge advocate and previously dealt only with custody hearings. The provisions in this Act will allow them to issue search warrants (section 5) and to issue warrants for the arrest of persons who may fail to comply with a summons to attend a hearing (section 25). Many judge advocates are also appointed as judicial officers.

10.     The reasons for each of the provisions in the Act are explained in the section of these notes dealing with that provision. Although these notes make use of the male pronoun throughout, these references should be read as including the female pronoun.

THE ACT - COMMENTARY ON SECTIONS

Part 1 - Continuance of Services Acts

11.     The need for the periodic renewal of the SDAs originates in the Bill of Rights of 1688, which declared the raising or keeping of a standing army within the United Kingdom in time of peace, unless with the consent of Parliament, to be against the law. Since then, the maintenance of a standing army in peacetime has depended on the consent of Parliament, with this consent being renewed from time to time. At one time, the consent derived from annual Acts of Parliament, but the present practice is for the Army Act 1955 to be continued in force annually by Orders in Council for up to five years in total.

12.     The legal basis for the existence of the Royal Navy and the Royal Air Force is different from that of the Army. The Naval Discipline Act 1957 and the Air Force Act 1955 are continued in force and periodically re-enacted in the same way as the Army Act.

Section 1: Continuance of Services Acts

13.     Section 1 of the Armed Forces Act 1996 provided that the SDAs would expire in the following year unless extended by Order in Council for a further 12 months. It allowed similar extensions until, but not beyond, the end of 2001. That is why a further Armed Forces Act is now necessary, to continue the life of the SDAs for another five years beyond 31 December 2001.

14.     Section 1 provides for the continuation of the SDAs on the same basis as in previous Armed Forces Acts.

• Subsection (1) provides for the SDAs to continue in force until 31 August 2002, instead of expiring on 31 August 2001. The last Order in Council made under the 1996 Act expires on 21 August 2001.

• Subsection (2) provides for the continuance in force of the SDAs for further periods, each of no more than 12 months. This is to be done by Order in Council. Under subsection (4) drafts of the Orders in Council must be approved by each House of Parliament. This provides each House with the opportunity to debate the orders in every year except those in which a five-yearly Armed Forces Act re-enacts the SDAs.

• Subsection (3) prevents the continuance of the SDAs by Order beyond the end of 2006. By then, Parliament will have been asked to consider and pass a further Armed Forces Bill.

Part 2 - Powers of Entry, Search and Seizure

Sections 2 to 16

The previous position and the new arrangements in outline

15.     Prior to this Act, the SDAs did not set out the powers, which might need to be exercised during the investigation of offences allegedly committed by members of the armed forces or other persons who are subject to the SDAs. Instead, those powers were exercised on the authority of the commanding officer under his inherent powers. The principal powers were those to stop and search members of the armed forces or of other persons subject to the SDAs, and those to enter and search their living accommodation. However, it has been recognised for some time that the scope of those powers was unclear and that it was desirable they should be clarified and put on a statutory footing. The aim was to ensure that both those who exercise those powers and those who are subject to them were clear about the limits of the powers and the safeguards which apply to the exercise of those powers.

16.     The Act replaces those powers. Instead, the Service police are given statutory powers based on those available to the civilian police, although they will be modified to suit the needs of the Services. Each of the armed forces has a force of Service police, i.e. the Royal Navy Regulating Branch, the Royal Military Police, the Royal Air Force Police and the Royal Marines Police. They have many of the functions of civilian police but are members of the armed forces with no constabulary powers. This means Service police cannot exercise statutory powers conferred on constables; any powers they require must be specifically applied to them. Commanding officers are given, by Part 2, more limited versions of the powers of investigation given to the Service police.

17.     One of the main provisions is about searching for evidence of suspected serious offences. The Service police will be able to apply for a warrant to search the living accommodation of persons subject to the SDAs for evidence of such offences. Judicial officers are to have the necessary powers to grant warrants. (Judicial officers are legally qualified persons appointed under the SDAs to deal with a range of matters arising under those Acts). This brings the Services broadly into line with the position in civilian life, where members of Home Department police forces have to obtain a warrant to search from a magistrate. It also provides greater certainty and, by providing that extra certainty and independent legal supervision of applications for permission to search, is intended to avoid the risk of a challenge to those searches succeeding under the European Convention on Human Rights.

18.     A commanding officer retains a residual power to authorise searches of living accommodation of persons subject to the SDAs in exceptional circumstances, where, broadly speaking, he reasonably considers that a warrant cannot be obtained by a Service policeman or (in the United Kingdom) by a member of a Home Department police force in time for the search to be effective. An example of where this power may be necessary is during operational deployments overseas. However, the exercise of this power will be subject to retrospective review by a judicial officer. There is more detail about these powers of search in paragraphs 33 and 34 below.

19.     The Police and Criminal Evidence Act 1984 allows the Secretary of State to use subordinate legislation to apply a number of the civilian powers of investigation to the investigation of offences under the SDAs with appropriate modifications. Some of the changes outlined above fell outside this order-making power and, to that extent, primary legislation was required to provide a coherent system of investigation.

Section 2: Powers to stop and search persons, vehicles, etc.

20.     This section gives the Service police the power to stop and search anyone reasonably believed to be subject to the SDAs, any vehicle driven by such a person and any Service vehicle in the charge of any person. The power may only be exercised if the Service policeman has reasonable grounds for suspecting that he will find stolen or prohibited articles (very broadly, offensive weapons, other than those possessed for Service reasons, and things which could be used for theft or similar offences), unlawfully obtained stores or controlled drugs. The section is based on section 1 of the Police and Criminal Evidence Act 1984. Like section 1 of the 1984 Act, it allows stop and search in public places. It also allows stop and search in places occupied or controlled by any of the armed forces, and this includes vessels, aircraft and hovercraft (section 2(1)(c) and the definition of "premises" in section 16). "Premises" include bases of any of those forces, except those parts which are defined (in section 15 of the Act) as service living accommodation.

21.     With the increased employment by the armed forces of civilian contractors, it is not unusual for Service vehicles to be driven by civilians who are not subject to Service law. These drivers cannot be searched as they are not subject to the SDAs. However, the vehicles may be searched, if there are reasonable grounds for doing so. Although the driver is free to go, in practice the act of stopping and searching a Service vehicle may result in the driver being detained. The section allows for this detention.

22.     The section also gives a Service policeman the power to seize any articles he finds if he reasonably suspects that they are stolen, prohibited, etc.

Section 3: Provisions relating to search under section 2

23.     This section sets out some additional provisions relating to the powers of search which may be exercised under section 2.

24.     This section is based on section 2 of the Police and Criminal Evidence Act 1984, which mainly provides for safeguards against misuse of the power to stop and search. In particular, section 3 provides that a person or vehicle may only be detained under section 2 of this Act for a period reasonably needed to make a search; and that persons cannot be required to remove anything other than an outer coat, jacket or gloves in public if they are searched. It also allows the Secretary of State by regulations to make provision equivalent to that made by sections 2 and 3 of the 1984 Act. For example, one of the safeguards in section 2 of the 1984 Act is the duty of a policeman to inform the person whom he intends to search of his name, the object of the search and the grounds for the search.

25.     As explained in paragraph 20 above, the power to search persons applies on board vessels, aircraft and hovercraft, as well as in other places. Section 3 provides that the power to search vehicles applies to these other forms of transport. It also provides that the rules on search under section 2 do not apply to premises used for custody, detention and imprisonment. These are subject to separate rules on search, made under other provisions of the SDAs.

Section 4: Power of Commanding Officer in relation to stopping and searching of persons, vehicles etc.

26.     Section 4 confers upon the commanding officer the powers of search which a Service policeman has under section 2. Commanding officers may only use these powers, or authorise someone under their command to use them, in limited circumstances. The powers of search under this section may only be used in relation to a person under the commanding officer's command, or a vehicle in the charge of such a person. Moreover, commanding officers will only be able to use these powers if they reasonably believe that a criminal offence will be committed or an offender will avoid arrest, and if it is not possible to act until the assistance of a Service policeman or a member of a UK civilian police force is obtained.

Section 5: Power of judicial officer to authorise entry and search of certain premises

27.     This section gives judicial officers the power to issue warrants authorising the search of certain premises on application by a Service policeman investigating an offence under the SDAs. The powers are limited in that they can only be applied to premises used as living accommodation for Service purposes or to the homes of persons subject to the SDAs. The section also permits the Service police to seize and retain anything for which the search has been authorised. It is based on section 8 of the Police and Criminal Evidence Act 1984.

28.     It may be noted that the provisions on powers of entry refer generally only to entry to accommodation. There is no reference to other areas under Service occupation. This is because commanding officers and Service police need no special statutory power to enter these other areas. They will only need the agreement of anyone who is entitled to refuse admission. This is expressly made clear in section 16(7).

29.     The section sets out the requirements for the issue of a warrant. For example, there must be reasonable grounds for believing that a relevant offence has been committed and that certain conditions have been met, e.g. the purpose of the search would be seriously prejudiced if immediate entry cannot be secured upon arrival at the premises. The offences which are relevant are defined in section 5(2). They include the criminal offences for which a warrant may be obtained by civilian police, but also certain serious Service offences, such as assisting the enemy and looting. Evidence searched for must not include items subject to legal privilege, excluded material or special procedure material. Searches for excluded material and special procedure material are provided for in section 6.

30.     The section allows the Secretary of State to make an order permitting the use of live television links (or similar arrangements) for hearing an application for a warrant. This is because of the possibility of the need for Service police to act in places where a judicial officer might not be on hand, most obviously in some places abroad. The section also provides for the making (by order) of provision equivalent to sections 15 and 16 of the Police and Criminal Evidence Act 1984. Those sections include safeguards relating to the issue and execution of warrants; for example, searches under a warrant must usually be made at a reasonable hour and the policeman intending to search must identify himself to the occupier.

Section 6: Special provisions as to access

31.     Section 6 allows the Secretary of State to make orders to establish procedures that would enable Service policemen investigating an offence under the SDAs to apply to a judicial officer for a warrant for access to excluded or special procedure material that is held in any premises for which a search warrant is needed, i.e. premises used as living accommodation for service purposes or the homes of persons subject to the SDAs. The section corresponds to section 9 of the Police and Criminal Evidence Act 1984, and "excluded material" and "special procedure material" have the same definitions (under section 16) as in the 1984 Act. As mentioned in paragraph 29 above, there is no power under section 5 to search for such material. Special procedures, including extra safeguards, apply under the 1984 Act to obtaining a warrant to search for such materials. Excluded material includes, for example, personal records, such as medical records, if held in confidence, and also journalist's materials if held in confidence. An example of special procedure material would be journalist's material not held in confidence.

32.     The section allows the civilian procedure for applying for this type of warrant to be adapted for use in the Service discipline system, with modifications, to enable the application procedure to work effectively within that system. The section also allows for application procedures to include the use of live television links.

Section 7: Power of commanding officer to authorise entry and search of certain premises

33.     Section 7 gives commanding officers a limited power to authorise the search, without a warrant, of the living accommodation of persons under his command. The powers of search under this section may only be exercised where the conditions for obtaining a warrant under section 5 exist, but the commanding officer reasonably believes that it is likely that the time needed to obtain a warrant would result in the purpose of the search being frustrated or seriously prejudiced. The section also allows the person conducting the search to seize and retain any articles for which the search was authorised.

34.     The section requires such a search to be carried out by a Service policeman, unless none is available and it is likely that the time necessary to obtain the assistance of a Service policeman would result in the purpose of the search being frustrated or seriously prejudiced. In cases where a commanding officer authorises someone other than a Service policeman to conduct a search, the section restricts the range of premises that may be searched. The sort of premises which a commanding officer may need to have searched when Service police are not available is likely to be shared, temporary accommodation which Service personnel use on operation or on exercise, whether in tents, buildings or on board ship. Search by Service personnel who are not Service police is specifically ruled out in the case of accommodation provided for the exclusive use of a person subject to the SDAs, or for such a person and his or her family, although they are unlikely, in any case, to be in places where Service police are unavailable. It is thought appropriate that such accommodation, which is closer to a private home, should only be subject to search by a Service policeman.

Section 8: Review by judicial officer

35.     This section requires the seizure and retention of anything seized during a search authorised by a commanding officer without a warrant to be reviewed by a judicial officer. This review is a safeguard to ensure that searches without warrants are still subject to an appropriate level of judicial scrutiny.

36.     The section enables the Secretary of State to make orders governing the powers and duties of judicial officers in respect of these reviews. An order under this power will be subject to the affirmative procedure and must be approved by both Houses of Parliament before being made (section 35).

Section 9: Entry for purposes of arrest etc.

37.     Section 9 provides that entry to and search of certain premises is permissible for the purposes and in the circumstances specified in the section. It is based on section 17 of the Police and Criminal Evidence Act 1984, but with a number of differences. An important one is that section 17 of the 1984 Act applies to a list of powers of arrest under various pieces of civilian legislation. Section 9 of this Act refers instead to the existing powers of arrest under the SDAs (which apply to any offence under those Acts).

38.     The section authorises Service police to enter and search, without a warrant, premises used as living accommodation for Service purposes, and the homes of persons subject to the SDAs, to make arrests under any of the SDAs or to prevent death, serious injury or serious damage to property. If the purpose of the entry is to make an arrest, the Service policeman must have reasonable grounds for believing the person he wishes to arrest is on the premises. Service police may also enter and search, for the purposes of arrest, the residences of persons who are no longer in the Services but are still subject to Service law for the purposes of dealing with them for an offence committed whilst they were subject to Service law. The extent of any search under the section is restricted to searching for the person to be arrested. Thus the section does not, for example, give a power to look for evidence while effecting an arrest.

39.     Section 9 also allows a commanding officer to authorise a member of the forces, other than a Service policeman, to enter and search, without a warrant, the living accommodation (whether provided for Service purposes or otherwise) of a person under his command in order to arrest that person or to prevent death, serious injury or serious damage to property. (Powers of arrest are given by the SDAs to a wide range of Service personnel.) The commanding officer's authority to enter for the purposes of an arrest may only be given if the offence is one for which a search warrant could be issued under section 5 by a judicial officer. The commanding officer must have reasonable grounds for believing that waiting to obtain the assistance of a Service or civilian policeman might result in the person to be arrested evading capture, concealing or destroying evidence or being a danger to himself or others, or result in discipline being undermined.

40.     The authority to enter for the purposes of saving life, preventing serious injury or preventing serious damage to property may only be given by the commanding officer if it is not practicable to obtain the assistance of a Service policeman in time to prevent the harm occurring.

41.     The section also provides that regulations may be made by the Defence Council allowing commanding officers to delegate their powers. Such delegation could be used to allow a duty officer to authorise entry if, for example, an emergency arose in the commanding officer's absence.