Desertion and absence without leave

Section 8: Desertion

59.     Under this section desertion is committed if a person subject to service law is absent without permission and either intends:

• not to return at all, or

• to avoid service on operations against an enemy, or service abroad on operations to protect life or property, or service on military occupation of a foreign country or territory.

60.     It is an offence if the person has the necessary intention at the time of going absent or if he develops the intention at some point during the period of absence.

61.      The maximum sentence for desertion is generally two years' imprisonment. But the maximum is life imprisonment if the offender intended to avoid a period of "active service" as defined in the section.

Section 9: Absence without leave

62.     Persons subject to service law commit an offence if they are absent from duty without permission. The offence may be committed through negligence, or recklessness as to whether the individual's conduct will result in such absence, or where he is intentionally absent without permission.

Section 10: Failure to cause apprehension of deserters or absentees

63.     Under this section it is an offence if a person subject to service law fails to do what can reasonably be expected of him to cause a deserter or absentee without leave (or a person attempting to commit either offence) to be detained.

Insubordination etc

Section 11: Misconduct towards a superior officer

64.     This section penalises misconduct by a person subject to service law towards a superior officer. "Superior officer" is defined by section 374 as an officer, warrant officer or non-commissioned officer of senior rank or rate to the offender or of the same rank or rate but having authority over him. The offender must know or have reasonable cause to believe that his misconduct is directed towards a superior officer. Misconduct means:

• violence against a superior officer (subsection (1))

• threatening or disrespectful behaviour towards a superior officer (subsection (2))

65.     The misconduct referred to in subsection (2) includes sending communications which are threatening or disrespectful (such as by a note or e-mail) to a superior; and threatening behaviour is not limited to threats of violence. It would include, for example, a threat to damage the superior's property (subsection (3)).

66.     The maximum penalty for an offence involving violence or threatening behaviour is ten years' imprisonment; disrespectful behaviour is punishable with a maximum of two years' imprisonment.

Section 12: Disobedience to lawful commands

67.     Obedience to lawful commands is central to service discipline. A person who is subject to service law and intentionally or recklessly disobeys a lawful command commits an offence. A command in the armed forces means any order apart from routine and standing orders, which are dealt with in section 13. A person who is negligent in carrying out a command (by failing, for example, to consider what the order really meant) does not commit an offence under this section. There is a separate offence which applies to negligent breaches of duty (section 15).

68.     An order must be lawful; an order to do something which would amount to a crime, for example, would not be lawful.

69.     The maximum penalty for this offence is ten years' imprisonment, which reflects the fact that obedience to some commands may be vital to the success of an operation. (This may be contrasted with the maximum penalty of two years' imprisonment for contravening standing orders, which are more routine in character.)

Section 13: Contravention of standing orders

70.     Standing orders are routine orders, in writing, which are not temporary, and are issued by the services. An example is the routine orders governing conduct on a particular base. Such orders are likely to include rules on such matters as security or conduct. A breach of standing orders by a person subject to service law or a civilian subject to service discipline is an offence, but only if they are aware, or could reasonably be expected to be aware, of the order in question. So, for example, a civilian member of a service family living on a military base abroad could in most circumstances be reasonably expected to know of the standing orders applicable to that base. As with section 12, the order itself must be lawful.

Section 14: Using force against a sentry etc

71.     This section reflects the importance of accepting the instructions of service personnel controlling the movement of members of the armed forces, in particular sentries (whether at a post or patrolling) and those regulating traffic. It is an offence for a person subject to service law to use force against such a member of the armed forces or, by the threat of force, to compel such a member to let him or any other person pass.

Neglect of duty and misconduct

Section 15: Failure to attend for or perform duty etc

72.     Those who are subject to service law commit an offence if they fail to attend for duty, or leave duty before they are permitted to do so, or fail to perform a duty at all. Negligently performing a duty is also penalised.

Section 16: Malingering

73.     This section is aimed at preventing a person who is subject to service law avoiding service either by pretending to be ill or injured or by harming himself (or arranging for someone else to harm him) (subsection (1)). It is also an offence for a person subject to service law to help another person subject to service law to avoid service by harming him (subsection (2)). Harm includes physical injury as well as any disease and any impairment of a person's physical or mental condition.

Section 17: Disclosure of information useful to an enemy

74.     A person who is subject to service law commits an offence if, without lawful authority, he discloses to someone else information which he knows or has reasonable cause to believe might be useful to an enemy. Service personnel might be authorised to make a particular disclosure or have general authority to disclose certain information; an obvious example of authorised disclosure would be to pass necessary information or orders to those in the same command. Conduct by service personnel which, in England and Wales, would be an offence under the Official Secrets Acts 1911 to 1989 will be a criminal conduct offence within section 42 of the Act, and more serious offences relating to disclosure of information are likely to be prosecuted under that section.

Section 18: Making false records etc

75.     Persons subject to service law are required to make financial and other returns, and create documents on a wide range of matters. This section concerns improper conduct in relation to documents to be used for official purposes. Use for official purposes includes use by the armed forces themselves or by Crown servants such as Ministry of Defence officials. "Documents" are not just paper documents, but any record of information in any form, including computer records.

76.     Improper conduct is defined as:

• making an official record (knowing or having reasonable cause to believe that it is an official record) and being aware that it is false in a material respect (subsection (1))

• interfering with or suppressing an official document in any way (for example by removing part of it, or destroying or concealing it), with the aim of deceiving someone else (subsection (3))

• failing to make a record when under a duty to make one, with the aim of deceiving someone else (subsection (4)).

77.     The offence under subsection (1) also applies to a person who adopts a record made by someone else which he knows to be false. This would include signing a record made by another so as to confirm its accuracy.

Section 19: Conduct prejudicial to good order and discipline

78.     This section penalises conduct which is prejudicial to good order and service discipline. The offence is the same as that under section 69 of the Army Act 1955 (and similar provisions in other SDAs). Under that section it has been decided judicially that there will be circumstances in which conduct is prejudicial only if it is accompanied by a particular state of mind (such as dishonesty or an intention to prejudice service discipline).

Section 20: Unfitness or misconduct through alcohol or drugs

79.     Service personnel who are unfit to be entrusted with their duty or any duty which they might reasonably be expected to perform, or whose behaviour is disorderly or likely to discredit the armed forces, due to the influence of alcohol or any drug, commit an offence.

80.     "Drug" is not limited to those drugs whose possession is unlawful. It means any drug. However, an accused may raise a defence that a drug has been properly taken for a medicinal purpose, or taken or administered on the orders of a superior officer (that might, for example, be the case where a drug is taken as a precaution against the effects of a possible chemical or biological attack).

Section 21: Fighting or threatening behaviour etc

81.     A person subject to service law commits an offence under this section if, without reasonable excuse, he (a) fights another person or (b) deliberately behaves in a way which is threatening, abusive, insulting or provocative. In the latter case his behaviour must also be likely to cause a disturbance.

Section 22: Ill-treatment of subordinates

82.     This section is concerned with ill-treatment of a person subject to service law by anyone who is his superior in rank or authority ("superior officer" is defined in section 374). It penalises both intentional ill-treatment, and also recklessness on the part of a superior officer where, for example, he enforces excessively harsh discipline on a subordinate. The superior officer must know or have reasonable grounds to believe that the person mistreated is his subordinate. Where others are mistreated, criminal offences (such as assault) or disciplinary offences (such as conduct to the prejudice of good order and discipline) might be appropriate.

Section 23: Disgraceful conduct of a cruel or indecent kind

83.     Cruel or indecent conduct by service personnel is an offence if the circumstances, motive or other factors render it disgraceful. For example, killing an animal may be cruel but the circumstances, such as obtaining food to survive, may not render the conduct disgraceful, and this section would therefore not apply.

Property offences

Section 24: Damage to or loss of public or service property

84.     The care of government and service property, and the property of fellow members of the armed forces, are significant disciplinary concerns. This section concerns damage or loss caused by service personnel either to public or service property, or to the property of another member of the armed forces. "Public property" is defined in sections 24 and 26, and means tangible property of government departments, and of the devolved administrations of Scotland, Wales and Northern Ireland. It is an offence:

• to damage or cause the loss of public or service property either intentionally, recklessly or negligently (subsections (1) and (2)),

• to do an act that is likely to cause such damage or loss, either negligently or recklessly (subsection (2)) (doing this intentionally would be an offence of attempting to commit an offence within subsection (1)),

• to damage or cause the loss of property belonging to service personnel, either intentionally or recklessly (subsection (1)).

85.     The main distinctions between the treatment of public and service property on the one hand, and the property of service personnel on the other, are that:

• negligently damaging property belonging to service personnel is not an offence under this section.

• in relation to public or service property, reckless or negligent acts which are likely to cause damage or loss are an offence, even if no damage is caused.

86.     The maximum penalty under this section for intentional or reckless conduct which causes damage or loss, is ten years' imprisonment. For reckless conduct which does not cause damage or loss, and for negligent conduct, the maximum penalty is two years' imprisonment.

Section 25: Misapplying or wasting public or service property

87.     Service personnel who misapply or waste any public or service property commit an offence. "Public property" and "service property" are defined in section 26.

88.     An offence under this section carries any of the punishments in the Table in section 164 except imprisonment.

Offences against service justice

Section 27: Obstructing or failing to assist a service policeman

89.     Each of the services have their own service police who are themselves members of the armed forces. The officers of the service police are called "provost officers".

90.     This section provides that persons subject to service law or civilians subject to service discipline may commit an offence if they obstruct, or fail to assist when called upon to do so, a service policeman carrying out his duties or a member of the armed forces acting under the authority of a provost officer (for example, an arrest under section 67 of the Act may be carried out by a person who is acting with a provost officer's authority).

91.     To be guilty of an offence under this section:

• the obstruction or failure to assist must be intentional, and

• the offender must know, or have reasonable cause to believe, that the person he obstructs or fails to assist is a service policeman or a person exercising authority on behalf of a provost officer.

Section 28: Resistance to arrest etc

92.     Section 67 (which sets out the main power of arrest provided for in the Act) describes the manner in which an arrest can be carried out. Broadly speaking, under that section a person may simply be arrested, or (if he is a member of the armed forces) be ordered to regard himself as under arrest (and perhaps to report to a certain person or place). Section 28 applies to service personnel who:

• disobey an order which requires them to succumb to arrest, or

• use or threaten violence towards a person who has ordered them into arrest in the exercise of a power granted under the Act.

93.     Section 28 also penalises service personnel or civilians subject to service discipline who use or threaten violence towards a person who has a duty to apprehend them, and who know or have reasonable cause to believe that the person has a duty to apprehend them. The expression "apprehend" applies both to an arrest (for the purpose of charging an offender or to prevent an offence) and other types of lawful detention, such as capturing an offender who has escaped from custody.

Section 29: Offences in relation to service custody

94.     It is an offence for a member of the armed forces or a civilian subject to service discipline who is in lawful custody:

• to escape, or

• to use or threaten violence against a person in whose lawful custody he is (unless the offender has reasonable cause to believe that the custody is unlawful).

Section 30: Allowing escape, or unlawful release, of prisoners etc

95.     It is an offence for a person subject to service law:

• to allow (either intentionally, recklessly or negligently) the escape of a person in his charge, or whom it is his duty to guard, or

• to release a person in his charge, when he has no reasonable cause to believe that he has authority to do so.

96.     If the offender intentionally allows escape, or knows that he has no authority to make the release, the maximum penalty is ten years' imprisonment. Otherwise the maximum penalty is two years.

Ships and aircraft

Section 31: Hazarding of ship

97.     Causing a naval vessel to be at risk is referred to in the Royal Navy as "hazarding" a ship. In some circumstances, for example when in action against an enemy, it is common for a ship to be put at risk. Taking steps which are bound to damage a ship (by ramming an enemy vessel for instance), or to destroy a ship (to prevent its capture) might in some circumstances be justified.

98.     It is an offence under this section for service personnel:

• to cause a ship to be at risk, with the aim of causing damage to or the stranding of the ship, or causing it to sink, without a lawful excuse, or

• to cause a ship to be at risk through recklessness or negligence.

99.     An offender who intends to hazard a ship, or is reckless, may be sentenced to life imprisonment. An offender who is negligent may only be sentenced up to a maximum of two years' imprisonment.

Section 32: Giving false air signals etc

100.     "Air signals", as defined in subsection (2) of this section, are of great importance for the guidance of aircraft. A false or inaccurate signal may cause loss of life, and this is reflected in the maximum penalty of life imprisonment for an offence under this section. It is an offence for service personnel:

• to give a false air signal intentionally, or

• to intentionally interfere with an air signal or with equipment used for making air signals.

101.     A defence of lawful excuse would apply, for example, where a member of the armed forces has authority to correct an air signal or to adjust air signalling equipment.

Section 33: Dangerous flying etc

102.     Under this section it is an offence for a member of the Armed Forces to do something when flying or using an aircraft, or in relation to an aircraft or aircraft material, which causes, or is likely to cause, death or injury, if he intends to cause, or is reckless or negligent about causing, death or injury. But he is not guilty of the offence if he acts intentionally, but with lawful excuse (for example, to prevent an aircraft falling into the hands of the enemy). Aircraft material includes parts, accessories and armaments.

103.     The section is not limited to service aircraft. It applies, for example, to service personnel who fly a private aircraft, possibly for recreation.

104.     The maximum penalty is life imprisonment if the offender intended, or was reckless about, death or injury. The maximum is two years' imprisonment if he was negligent.

Section 34: Low flying

105.     The Defence Council makes regulations governing minimum heights for flying (which vary with the type of aircraft and other factors). Service personnel who breach the regulations commit an offence, whether the breach is intentional, reckless or negligent. The offence does not apply to take-off and landing, and to such other circumstances as the Defence Council may prescribe by regulations. As with section 33, this offence is not limited to flying service aircraft.

106.     In some situations, such as training, an individual who is flying an aircraft may be under the command of another person. If the person flying an aircraft breaches a minimum height requirement on the orders of such a person, it is the person in command who commits the offence (subsection (2)).

Section 35: Annoyance by flying

107.     This section is intended to prevent flying which is excessively intrusive or otherwise likely to annoy members of the public. It is an offence if service personnel fly an aircraft so as to annoy or be likely to annoy any person, unless they cannot reasonably avoid flying the aircraft in that particular way. The offence is committed regardless of whether the person flying intends to cause annoyance, or is reckless or negligent. As under section 34, if the flying in question is carried out on the orders of a person who is not actually flying, it is the person in command who commits the offence.

108.     This offence is not punishable with imprisonment or dismissal with disgrace. The penalties set out in rows 3 to 12 of the table in section 164 may be imposed.

Section 36: Inaccurate certification

109.     The services have systems and equipment which require service personnel to check and certify the safety and working condition of service ships and aircraft, or materials used in connection with aircraft. Under this section it is an offence for a person subject to service law to make or sign a certificate without having first checked that it is correct. In addition the Defence Council is empowered by the section to prescribe by regulations other equipment to which the offence will apply.

Section 37: Prize offences by officer in command of ship or aircraft

110.     During an armed conflict COs are entitled to capture (as "prize") most enemy ships and aircraft, and any goods in them. Under International Law they must bring the captured enemy ship, aircraft or goods to an appropriate place for a proper adjudication on whether they were lawfully seized (and can therefore properly be deemed as "prize"). It is an offence if a person in command of a service ship or aircraft unlawfully fails to:

• ensure that all papers which identify the captured ship or aircraft are sent to a court which can determine whether the ship, aircraft or goods are prize, and

• bring the ship, aircraft or goods to a convenient place for adjudication.

111.     The failure will not be unlawful if caused, for example, by enemy action.

Section 38: Other prize offences

112.     It is an offence to ill-treat, or unlawfully take anything from, a person on board a ship or aircraft captured as prize (see paragraph 110 above). It would not be unlawful, for example, to take a weapon from such a person (subsection (1)).

113.     Under subsection (2) it is an offence to interfere with goods found on a ship or aircraft taken as prize. This is to ensure that all goods taken as prize reach a prize court. If goods are held by a prize court to have been captured lawfully they may be removed from the ship or aircraft. Goods may also be removed for safe-keeping, and where they are required for necessary use by the armed forces or their allies.

114.     A ship or aircraft may be detained either under legislation which authorises detention, or under international law where the UK is a party to an armed conflict. International law permits the detention of foreign ships and aircraft in certain circumstances other than as prize. Under subsection (3) it is an offence to interfere unlawfully with goods on a detained ship or aircraft. Where interference is permitted under international law it will also be lawful under domestic law in the UK.

Attempts, incitement, and aiding and abetting

Section 39: Attempts

115.     Under this section it is an offence for a person subject to service law to attempt to commit a service offence, or for a civilian subject to service discipline to attempt to commit one of the offences mentioned in subsection (4). The offence is broadly similar to the offence of attempt under the criminal law of England and Wales. Attempting to commit an offence under section 42 (criminal conduct) is not an offence under this section but is itself an offence under section 42 (as modified by section 43).

116.     A person convicted of an offence under this section is liable to the same punishment as if he were convicted of the offence he attempts to commit.

Section 40: Incitement

117.     Under this section it is an offence for a person subject to service law to incite another person to commit a service offence, or for a civilian subject to service discipline to incite another person to commit one of the offences mentioned in section 39(4). The offence is broadly similar to the offence of incitement under the criminal law of England and Wales. Incitement to commit an offence under section 42 (criminal conduct) is not an offence under this section but is itself an offence under section 42 (as modified by section 46).

118.     A person convicted of an offence under this section is liable to the same punishment as if he were convicted of the offence he incites the other person to commit.

Section 41: Aiding, abetting, counselling or procuring

119.     Under this section it is an offence for a person subject to service law to aid, abet, counsel or procure the commission of a service offence, or for a civilian subject to service discipline to aid, abet, counsel or procure the commission of one of the offences mentioned in section 39(4). Aiding, abetting, counselling or procuring the commission of an offence under section 42 (criminal conduct) is not an offence under this section but is itself an offence under section 42 (as modified by section 47).

120.     As under the criminal law of England and Wales, a person convicted of an offence under this section may be charged, tried and punished as if he had personally committed the offence whose commission he aids, abets, counsels or procures.

Criminal conduct

Section 42: Criminal conduct

121.     Under this section it is an offence for a person subject to service law, or a civilian subject to service discipline, to do something which is an offence under the criminal law of England and Wales or would be such an offence if done in England or Wales.

122.     The punishments available on conviction of an offence under this section depend on those available for the civilian offence to which the offence corresponds. If the civilian offence is punishable with imprisonment, all the punishments listed in section 164 are available, but a sentence of imprisonment, or a fine, must not exceed the maximum that could be imposed for the corresponding offence. If the civilian offence is not punishable with imprisonment, any punishment listed in section 164 is available except imprisonment, dismissal with disgrace, dismissal and detention, but again the maximum fine is the same as for the corresponding offence.