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Explanatory Notes to Armed Forces Act
2006 Chapter 52 |
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These notes refer to the Armed Forces Act 2006 (c.52) which received Royal Assent on 8 November 2006 ARMED FORCES ACTEXPLANATORY NOTESINTRODUCTION 1. These explanatory notes relate to the Armed Forces Act that received Royal Assent on Wednesday 8th November 2006. They have been prepared by the Ministry of Defence in order to assist the reader in understanding the Act. They do not form part of the Act and have not been endorsed by Parliament. 2. The 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. 3. There is an explanation of the background to the Act in paragraphs 5 to 15. The Act comprises a number of parts, grouped into main subject areas. Paragraphs 16 to 39 give an overview of the Act, its structure and the key elements of each part. The main areas are introduced and described separately in the commentary. 4. Terms used in the Act are explained in these notes where they first appear and a glossary of terms is at Annex A. A table of comparative ranks of members of each of the three Services is at Annex B. BACKGROUND 5. The Royal Navy, the Army and the Royal Air Force operate within separate statutory frameworks of discipline which apply at all times wherever in the world members of each Service are serving. The respective bases for these systems are the Naval Discipline Act 1957, the Army Act 1955 and the Air Force Act 1955. Collectively they are known as the Service Discipline Acts ("the SDAs"). The SDAs are concerned largely, but not exclusively, with discipline. 6. Although each of the Services has its own system, the general structure of these systems and many of their details are very similar. They all make provision so that members of the Services (including, in certain circumstances, members of each Service's ex-regular and volunteer reserve forces) can be investigated, tried and punished for any criminal offence under the law of England and Wales, wherever in the world it is committed. These are referred to in these notes as criminal conduct offences. Each of the three service systems also provides for some offences which are peculiar to service in the armed forces. These offences mainly relate to discipline, for example insubordination and disobedience to lawful commands. They are referred to in these notes as disciplinary offences. 7. A commanding officer (CO) has a central role in maintaining discipline and every member of the armed forces has a CO for disciplinary purposes. Accordingly COs in all the services have defined disciplinary powers to deal with certain disciplinary and criminal conduct offences. 8. A CO's powers of punishment are very restricted, but there are differences between the services in the range of offences with which a CO may deal summarily and his or her powers of punishment. Each of the Services' systems provides an accused person with a right of election for trial by court-martial instead and for appeal from the finding and punishment of a CO to a Summary Appeal Court, comprising a civilian judge (called a "judge advocate") and two members, of which one must be an officer. 9. The detailed provisions about courts-martial also vary between the Services, but key aspects are the same. The decision to bring a prosecution at court-martial rests with the Prosecuting Authority of each service. The Prosecuting Authority is a legally qualified officer appointed by Her Majesty the Queen and is independent of the chain of command. There are differences between the Services in the structure and membership of courts-martial, but all courts-martial have a civilian judge advocate and not less than three service members. These will be officers or warrant officers (though there are further rules about the ranks of those who may sit). The Army and RAF systems distinguish between "district" and "general" courts-martial. General courts-martial must have at least five service members (as well as the judge advocate). Naval courts-martial, and Army and RAF general courts-martial, have sentencing powers which are broadly comparable to those of the Crown Court in England and Wales. However, some of the sentencing powers available to a court-martial are peculiar to the service systems, such as detention served in a military establishment, reduction in rank, and dismissal. The procedures of all courts-martial are broadly similar to those of the Crown Court. There is a right of appeal against conviction and sentence to the Courts-Martial Appeal Court. This court mostly comprises civilian judges from the Court of Appeal (Criminal Division). 10. Some civilians are also subject to one or other of the SDAs when overseas. These include the families of armed forces personnel living with them abroad and certain contractors working with the armed forces. There are only very limited powers to deal with civilians summarily. In Germany and Cyprus, where the armed forces have large permanent bases with a significant civilian population, there is a Standing Civilian Court, which has powers equivalent to those of a magistrates' court in England and Wales and is presided over by a civilian judge advocate. Or civilians may be tried by court-martial, in which case one or more civilian Crown servants may be a member of the court (depending on the type of court-martial). 11. Judge advocates are appointed as such by the Lord Chancellor but allocated to individual trials by the Judge Advocate General (for Army and RAF trials) or the Judge Advocate of the Fleet (for Royal Navy trials). The holders of these offices are appointed by Her Majesty the Queen on the recommendation of the Lord Chancellor. They must be a barrister, solicitor or advocate of at least 10 years' standing. 12. Each of the services includes a force of police (referred to in these notes as "service police"). One of their functions is to investigate alleged offences under the SDAs. Broadly speaking, their powers are exercisable on a tri-service basis; that is, they may exercise their powers in relation to anyone subject to any of the SDAs. Other provisions in the SDAs 13. The SDAs also contain provisions on other matters including recruitment to and discharge from the armed forces, the redress of complaints and armed forces' boards of inquiry. Renewal of service law 14. Since 1955 the Army and Air Force Acts (and, since 1971, the Naval Discipline Act) have been subject to renewal by primary legislation every five years and, in each of the intervening years, by an Order in Council approved in draft by both Houses of Parliament. This requirement for Parliamentary agreement for their continuation has its origins in the Bill of Rights 1688, which provides that the raising of a standing army is against the law unless Parliament consents to it. Since the 1950s the five-yearly Acts have been used primarily to make necessary and desirable amendments to the SDAs, often to reflect changes in the civilian criminal law of England and Wales. The last Armed Forces Act was passed in 2001. The Strategic Defence Review 1998 15. The Ministry of Defence Strategic Defence Review 1998 1 recognised the future importance of joint operations by the armed forces and put "jointery" at the centre of the defence planning process. It also concluded that combining the three SDAs into a single Act, and reducing the differences between the systems to the absolute minimum, would better support the armed forces, which increasingly train and operate jointly. The Act is the result of a comprehensive review of all the existing provisions in the SDAs, together with other legislation that relates to discipline in the armed forces such as the Courts-Martial (Appeals) Act 1968 ("the 1968 Act") and a number of free-standing provisions in the five-yearly Armed Forces Acts—for example, the provisions for Standing Civilian Courts in the Armed Forces Act 1976, and the powers of service police under the Armed Forces Act 2001. 1 CM 3999, http://www.mod.uk/issues/sdr/index.htm OVERVIEW OF THE ACT 16. The main purpose of the Act therefore is to replace the three separate systems of service law with a single, harmonised system governing all members of the armed forces. The key elements of the discipline systems will remain, in particular a jurisdiction for COs to deal with less serious offences, with more serious offences being required to be tried by court-martial. Accordingly it should not be assumed that the provisions of the Act are new. Most of it is based on existing provisions, but updated, and modified to achieve harmonisation between the Services. 17. In brief, the Act creates offences and provides for the investigation of alleged offences, the arrest, holding in custody and charging of individuals accused of committing an offence, and for them to be dealt with summarily by their CO or tried by court-martial. Instead of (as at present) courts-martial being set up to deal with particular cases, the Act provides for a standing court-martial, called the Court Martial. Rather like the Crown Court, the court may sit in more than one place at the same time, and different judge advocates and service personnel will make up the court for different trials. 18. More serious cases must be notified to the service police and passed direct to the independent Director of Service Prosecutions ("DSP") for a decision on whether to prosecute. In other cases the CO will consider whether to deal with the matter summarily (if it is within his jurisdiction) or to refer the case to the DSP with a view to proceeding to a trial by the Court Martial. In all cases which it is intended should be tried by the Court Martial, it will be the DSP who takes the decision to prosecute and determines the charge or charges. Those facing charges with which the CO intends to deal summarily have a right to elect trial by the Court Martial, or, if they agree to be dealt with summarily and the charge is found proved, to appeal to the Summary Appeal Court. A person convicted by the Court Martial will be able to appeal to the Court Martial Appeal Court. 19. The Act provides for certain offices and organisations which are currently single-service to be replaced by a tri-service equivalent. The aim is to enhance efficiency and to support consistency in the application of the Act. These are:
STRUCTURE OF THE ACT 20. The Act is in 19 Parts which are divided into three groups dealing with discipline, miscellaneous and general matters respectively. Paragraphs 21 to 39 below list the main matters covered in each Part. First Group of Parts: Discipline 21. Part 1: Offences. This Part sets out most service offences. (There are a few offences in other Parts of the Act and in other Acts.) 22. Part 2: Jurisdiction and time limits. This Part defines the jurisdiction of COs, the Court Martial and the SCC. It lays down time limits for prosecutions under the Act. It also provides for the effect of proceedings under service law on further service or civilian proceedings, and the effect of civilian proceedings on further service proceedings. 23. Part 3: Powers of arrest, search and entry. This Part defines the powers of arrest in relation to service offences. It also defines powers to search arrested persons, to stop and search persons and vehicles, and to enter premises for the purpose of search and seizure. For the most part, these powers are to be exercised by the service police. 24. Part 4: Custody. This Part sets out the regime governing the holding in custody (before or after charge) of a person arrested under the Act. It covers such matters as time limits for custody and review of custody. The requirements include review of that custody by a judge advocate. 25. Part 5: Investigation, charging and mode of trial. This Part sets out the duties of COs in respect of the investigation of service offences and the involvement of the service police. It also provides for the powers of the CO and the Director of Service Prosecutions in determining whether a charge should be brought, and if so for what offence. 26. Part 6: Summary hearing and appeals and review. This Part provides a right for the accused to elect trial by the Court Martial instead of being dealt with summarily by the CO. It sets out the punishments that a CO may award summarily. It establishes a single Summary Appeal Court ("SAC") for the Services, gives a right of appeal to the SAC against both the finding and punishment at a summary hearing, and sets out the procedures and sentencing powers of the SAC. It provides for a separate review of the CO's decisions, with a power for the reviewer to refer the matter to the SAC. 27. Part 7: Trial by the Court Martial. This Part establishes the Court Martial and provides for its constitution, proceedings and powers in respect of finding and sentence. It provides powers to deal with accused persons who are unfit to stand trial or who are found to be not guilty by reason of insanity. 28. Part 8: Sentencing powers and mandatory etc sentences. This Part makes further provision in relation to certain sentences. It provides for consecutive sentences, the suspension of sentences of detention, sentences of imprisonment for under 12 months, custodial sentences for young offenders, mandatory and minimum sentences, and certain court orders which are not sentences. 29. Part 9: Sentencing: principles and procedures. This Part sets out, for the first time, the principles that service courts and COs should apply when sentencing, and the procedures they should adopt when determining the sentence. It reflects the principles and procedures that apply to the civilian courts of England and Wales, which are mostly to be found in the Powers of Criminal Courts (Sentencing) Act 2000 ("the Sentencing Act") and the Criminal Justice Act 2003 ("the 2003 Act"). 30. Part 10: Court Martial decisions: appeals and review. This Part renames the Courts-Martial Appeal Court as the Court Martial Appeal Court, and comprehensively amends the 1968 Act. It makes provision for the Attorney General to refer to the CMAC a sentence passed by the Court Martial which he considers unduly lenient. It also creates a regime for compensation for miscarriages of justice. 31. Part 11: The Service Civilian Court. This Part establishes the SCC. The jurisdiction of the SCC is provided for in Part 2. Part 11 provides for the court to sit anywhere outside the British Islands, and for its constitution, proceedings and powers in respect of finding and sentence. It sets out the right of an accused to elect trial by the Court Martial, and to appeal to the Court Martial against a finding or sentence of the court. 32. Part 12: Service and effect of certain sentences. This Part makes provision for the commencement of sentences and their effect on the offender in various respects, such as his rank. It makes a number of provisions with respect to custodial sentences passed under the Act and to service custody. These include provision for a sentence of service detention, but not one of imprisonment, to be served in a service establishment. They also include a power to make rules about service custody (both before and after sentence). 33. Part 13: Discipline: miscellaneous and supplementary. This Part provides for a number of miscellaneous matters relating to discipline, including:
Second Group of Parts: Miscellaneous Matters 34. Part 14: Enlistment, terms of service etc. This Part deals with a number of matters broadly relating to enlistment and terms of service. Among other provisions it gives the Defence Council powers to make regulations governing the enlistment of persons into the regular forces and their service in and discharge from those forces. It also provides a system for a person subject to service law to apply for redress of grievances in relation to his service. 35. Part 15: Forfeitures and deductions. This Part gives the Secretary of State power to make regulations for the purpose of making forfeitures and deductions from service pay for specified purposes. 36. Part 16: Inquiries. This Part gives the Secretary of State power to make regulations for internal service inquiries to investigate and report on matters referred to them. 37. Part 17: Miscellaneous. This Part makes provision about a number of discrete matters. The matters include exemption of the Services from tolls and charges, powers to admit to a service hospital persons outside the UK who are suffering from mental disorder, protection of children of service families, and provision invalidating assignments of, or charges against, armed forces pay or pensions. Third Group of Parts: General 38. Part 18: Commanding officer and other persons with functions under Act. This Part provides in particular for the identification of a person's CO and of higher authority in relation to a CO. It provides for the appointment of the Director of Service Prosecutions and prosecuting officers. 39. Part 19: Supplementary. This Part defines the persons who are subject to service law and those who are civilians subject to service discipline. It contains supplementary provisions, and definitions applying throughout the Act. It confers power to make consequential and transitional provision, and provides for the Act's duration, commencement and extent. COMMENTARY FIRST GROUP OF PARTS - DISCIPLINE PART 1 - OFFENCES 40. Part 1 sets out most of the offences which can be committed under service law. All the offences in this Part correspond to existing offences under the SDAs, which have been revised as appropriate. They can only be committed by persons who are subject to service law, i.e. service personnel (or, in some cases, by persons who are "civilians subject to service discipline": see paragraph 41 below). A member of the reserve forces (such as the Territorial Army) is only subject to service law at certain times (see section 367(2)). Where a section refers to an offence being committed by a person subject to service law, this means that the individual in question must be subject to service law at the time when the offence is committed. 41. Some offences may also be committed by civilians subject to service discipline (defined in section 370), and are identified below. 42. The punishments which can be awarded for service offences are set out in section 164. Unless otherwise stated, the maximum sentence which can be imposed is two years' imprisonment. Assisting an enemy, misconduct on operations etc Section 1: Assisting an enemy 43. This section makes it an offence for a person subject to service law to intentionally assist an enemy in a number of specified ways, such as communicating with an enemy or providing the enemy with supplies. Subsection (2) concerns service personnel who, having been captured, intentionally assist the enemy. Helping the enemy in their war effort is the main way in which an offence under subsection (2) is committed. A defence of lawful excuse applies in all circumstances; for example service personnel might be ordered to communicate with an enemy in order to deceive them. The maximum penalty is life imprisonment. 44. "Enemy" is widely defined in section 374\, and includes enemy troops but also, for example, armed mutineers or rioters. Section 2: Misconduct on operations 45. When a person subject to service law is taking part, or under orders to take part, in operations against an enemy, or is in the vicinity of an enemy, he commits an offence if he is found to be guilty of misconduct in the following circumstances. These are:
46. In most cases no offence is committed if the person in question has a reasonable excuse for his actions. 47. The maximum penalty for this offence is life imprisonment. Section 3: Obstructing operations 48. Under this section a person subject to service law is guilty of an offence if he
49. There may be a good military reason for delaying, or even for discouraging, an operation, for example because of likely adverse weather conditions or expected enemy strength. Accordingly such conduct is only an offence if there is no lawful excuse. 50. If an offence under this section relates to an action or operation against an enemy, the maximum penalty is life imprisonment; otherwise the maximum penalty is ten years' imprisonment. Section 4: Looting 51. Service personnel and civilians subject to service discipline may be guilty of looting in defined circumstances. The offence recognises that armed conflicts, natural disasters and other situations in which service personnel may be operating can leave people and property unprotected, and provide opportunities to steal or otherwise interfere with property. This section concerns looting in the following circumstances:
52. For those offences set out in subsections (1) and (2), the maximum penalty is life imprisonment. For an offence within subsection (3) the maximum sentence is seven years' imprisonment. Section 5: Failure to escape etc 53. It is an offence for service personnel who have been captured by an enemy:
54. Service personnel are not required to take steps which could not reasonably be expected, for example because of the danger involved or the individual's physical condition. 55. The maximum sentence for this offence is ten years' imprisonment. Mutiny Section 6: Mutiny 56. A person subject to service law commits the offence of mutiny if he takes part in concerted action to overthrow or resist the authority of those in command or to disobey authority in such a way as to undermine discipline, or agrees to act in such a manner. 57. The maximum penalty for mutiny is life imprisonment. Section 7: Failure to suppress mutiny 58. It is an offence if persons subject to service law fail to do what can reasonably be expected of them to prevent or stop the concerted actions of resisting or overthrowing authority or disobeying authority so as to undermine discipline. It is not an offence to fail to suppress the agreement to take part in such actions. What can reasonably be expected of persons who should act to suppress mutiny will depend on the circumstances, such as any danger involved. The worst cases of this offence could almost amount to complicity in the mutiny itself. For this reason there is a maximum penalty of life imprisonment. | |
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