Armed Forces Bill (HC Bill 202)

Armed Forces BillPage 10

(a) at or near the place where the requirement to co-operate with
the test is imposed;

(b) at a service police establishment determined by the service
policeman; or

(c) 5at a medical establishment.

(3) The Provost Marshals (acting jointly) must issue, and may from time to
time revise, a code of practice about—

(a) the kind of task that may be specified for the purposes of a
preliminary impairment test;

(b) 10the kind of observation of physical state that may be made in the
course of a preliminary impairment test;

(c) the way in which a preliminary impairment test should be
administered; and

(d) the inferences that may be drawn by a service policeman from
15observations made in the course of a preliminary impairment
test.

(4) In subsection (3) “the Provost Marshals” means the Provost Marshals of
each of the service police forces.

(5) A service policeman administering a preliminary impairment test must
20have regard to the code of practice.

(6) A service policeman may administer a preliminary impairment test
only if the service policeman is approved for that purpose by a Provost
Marshal of a service police force.

(7) A code of practice under this section may include provision about—

(a) 25the giving of approval under subsection (6); and

(b) in particular, the kind of training that a service policeman
should have undergone, or the kind of qualification that a
service policeman should possess, before being approved under
that subsection.

93D 30Preliminary drug test

(1) A preliminary drug test is a procedure administered by a service
policeman under which—

(a) a specimen of sweat or saliva is obtained from the suspected
person; and

(b) 35the specimen is used for the purpose of obtaining, by means of
an approved device, an indication whether there is a drug in the
person’s body.

(2) A preliminary drug test may be administered only—

(a) at or near the place where the requirement to co-operate with
40the test is imposed;

(b) at a service police establishment determined by the service
policeman; or

(c) at a medical establishment.

Armed Forces BillPage 11

Provision of specimens for analysis
93E Provision of specimens for analysis

(1) This section applies in relation to an investigation into whether a
person has committed—

(a) 5an offence under section 20A;

(b) an offence under section 20(1)(a) in respect of a safety-critical
duty (as defined by section 93I); or

(c) an offence under section 42 as respects which the corresponding
offence under the law of England and Wales is an offence under
10section 78, 79, 92 or 93 of the Railways and Transport Safety Act
2003.

(2) In the course of the investigation a service policeman may require the
person—

(a) to provide two specimens of breath for analysis by means of an
15approved device;

(b) to provide a specimen of blood or urine for a laboratory test.

(3) A requirement under this section may be imposed only at a service
police establishment or a medical establishment.

(4) For the purposes of this section and section 93F, a person does not
20provide a specimen of breath for analysis unless the specimen—

(a) is sufficient to enable the analysis to be carried out; and

(b) is provided in such a way as to enable the objective of the
analysis to be satisfactorily achieved.

(5) For the purposes of this section and section 93F, a person provides a
25specimen of blood if and only if—

(a) he consents to the taking of such a specimen from him;

(b) the specimen is taken from him by a registered medical
practitioner or registered nurse; and

(c) the specimen is of sufficient quantity to enable it to be divided
30into two parts for the purposes of analysis.

(6) For the purposes of this section and section 93F, a person provides a
specimen of urine if and only if—

(a) the specimen is provided within one hour of the requirement
for its provision being made and after the provision of a
35previous specimen of urine; and

(b) is of sufficient quantity to enable it to be divided into two parts
for the purposes of analysis.

(7) Where the provision of a specimen may be required under this section,
the question of whether it is to be breath, blood or urine, and in the case
40of blood the question of who is to be asked to take it, is to be decided by
the service policeman imposing the requirement.

(8) But where a service policeman decides for the purposes of subsection
(7) to require the provision of a specimen of blood, there shall be no
requirement to provide such a specimen if—

(a) 45the registered medical practitioner who is asked to take the
specimen is of the opinion that, for medical reasons, it cannot or
should not be taken; or

Armed Forces BillPage 12

(b) the registered nurse who is asked to take it is of that opinion and
there is no contrary opinion from a registered medical
practitioner;

and where by virtue of this subsection there can be no requirement to
5provide a specimen of blood, the service policeman may require a
specimen of urine instead.

(9) A service policeman must, on requiring a person to provide a specimen
in pursuance of this section, warn the person that a failure to provide it
may render the person liable to proceedings for a service offence.

(10) 10A person who, without reasonable excuse, fails to provide a specimen
when required to do so in pursuance of this section is guilty of an
offence.

(11) A person guilty of an offence under this section is liable to any
punishment mentioned in the Table in section 164, but any sentence of
15imprisonment imposed in respect of the offence must not exceed two
years.

93F Further provision about specimens under section 93E

(1) Where two specimens of breath are provided by a person in pursuance
of section 93E, the one with the lower proportion of alcohol in the
20breath is to be used and the other is to be disregarded.

(2) If the specimen with the lower proportion of alcohol contains no more
than a prescribed proportion of alcohol, the person who provided it
may claim that it should be replaced by such a specimen of blood or
urine as may be required under section 93E.

(3) 25If the person then provides such a specimen, neither specimen of breath
is to be used.

(4) In subsection (2) “prescribed” means prescribed by regulations made
by the Defence Council for the purposes of this section; and the
regulations may prescribe different proportions of alcohol in relation to
30different kinds of offence.

(5) On a request made at the time a specimen of blood or urine is provided
under section 93E, the person who provided the specimen must be
given a part of the specimen sufficient for the purposes of analysis.

93G Specimens of blood from persons incapable of consenting

(1) 35A service policeman may request a registered medical practitioner to
take a specimen of blood from a person (“the person concerned”),
irrespective of whether that person consents, if—

(a) the service policeman would (in the absence of any incapacity
of the person concerned and of any objection under section
4093H) be entitled under section 93E to require the person
concerned to provide a specimen of blood for a laboratory test;

(b) it appears to the service policeman that the person concerned
has been involved in an accident that constitutes or is
comprised in the matter that is under investigation or the
45circumstances of that matter;

(c) it appears to the service policeman that the person concerned is
or may be incapable of giving a valid consent to the taking of a

Armed Forces BillPage 13

specimen of blood (whether or not consent has purportedly
been given); and

(d) it appears to the service policeman that that person’s incapacity
is attributable to medical reasons.

(2) 5It is lawful for a registered medical practitioner to whom a request is
made under this section, if that practitioner thinks fit—

(a) to take a specimen of blood from the person concerned
irrespective of whether that person consents; and

(b) to provide the specimen to a service policeman.

(3) 10The specimen must be of sufficient quantity to enable it to be divided
into two parts for the purposes of analysis.

(4) If a specimen is taken in pursuance of a request under this section, it
must not be subjected to a laboratory test unless the person
concerned—

(a) 15has been informed that it was taken;

(b) has been required by a service policeman to give permission for
a laboratory test of the specimen; and

(c) has given permission.

(5)
A service policeman, on requiring a person to give permission for the
20purposes of this section for a laboratory test of a specimen, must warn
the person that a failure to give the permission may render the person
liable to proceedings for a service offence.

(6) On a request made at the time a person gives permission under this
section for a laboratory test of a specimen, that person must be given a
25part of the specimen sufficient for the purposes of analysis.

(7) A person who, without reasonable excuse, fails to give permission for
a laboratory test of a specimen taken from the person under this section
is guilty of an offence.

(8) A person guilty of an offence under this section is liable to any
30punishment mentioned in the Table in section 164, but any sentence of
imprisonment imposed in respect of the offence must not exceed two
years.

General provisions relating to testing
93H Patients in medical establishments

(1) 35This section applies in relation to a person who is at a medical
establishment as a patient.

(2) The person shall not be required to co-operate with a preliminary test
or to provide a specimen under section 93E unless the responsible
medical professional has been notified of the proposal to impose the
40requirement.

(3) If the responsible medical professional objects on medical grounds the
requirement must not be imposed.

(4) If the responsible medical professional does not object on medical
grounds and the requirement is imposed, the requirement must be for

Armed Forces BillPage 14

co-operation with a preliminary test administered, or for the provision
of a specimen, at the medical establishment.

(5) No specimen of blood may be taken from the person under section 93G,
and the person may not be required to give permission for a laboratory
5test of a specimen taken under that section, unless the responsible
medical professional—

(a) has been notified of the proposal that the specimen be taken or
of the proposal to make the requirement; and

(b) has not objected on medical grounds.

(6) 10In this section “the responsible medical professional” means—

(a) the registered medical practitioner in immediate charge of the
person’s case; or

(b) if there is no such registered medical practitioner, the registered
nurse in immediate charge of the person’s case.

(7) 15In this section “medical grounds” means—

(a) in relation to a requirement to co-operate with a preliminary
test or to provide a specimen under section 93E, the ground that
the requirement, or compliance with it by the patient, or any
warning required by section 93E(9), would be prejudicial to the
20proper care and treatment of the patient;

(b) in relation to the taking of a specimen under section 93G or a
requirement to give permission for a laboratory test of a
specimen taken under that section, the ground that the taking of
the specimen, the requirement, or any warning required by
25section 93G(5), would be so prejudicial.

93I Definitions for purposes of Chapter 3A

(1) In this Chapter—

  • “approved”, in relation to a device, means approved by the
    Secretary of State;

  • 30“drug” includes any intoxicant other than alcohol;

  • “medical establishment” means any facility at which medical or
    surgical treatment for in- or out-patients is provided;

  • “preliminary test” means—

    (a)

    a preliminary breath test within the meaning of section
    3593B;

    (b)

    a preliminary impairment test within the meaning of
    section 93C; or

    (c)

    a preliminary drug test within the meaning of section
    93D;

  • 40“safety-critical duty” means a duty which the commanding officer
    of the person mentioned in section 93A(1) or 93E(1) reasonably
    believes is such that performing the duty with ability impaired
    by alcohol or drugs would result in a risk of—

    (a)

    death;

    (b)

    45serious injury to any person;

    (c)

    serious damage to property; or

    (d)

    serious environmental harm;

  • “service police establishment” means any building or part of a
    building, any structure, or any room (whether on land or on a

    Armed Forces BillPage 15

    ship) which is used by a service policeman for the performance
    of his duties.

(2) In this Chapter any reference to a service policeman includes a Royal
Navy coxswain.

(2) 5In consequence of the provision made by subsection (1), sections 306 and 307
of AFA 2006 (testing for alcohol and drugs after serious incident) are repealed.

Punishments and other court orders

12 Amendments relating to new rank of lance corporal in RAF Regiment

(1) In section 132 of AFA 2006 (punishments available to commanding officer)—

(a) 10in row 1 of the Table, in paragraph (c) of the entry in the third column,
after “air forces” insert “(but see subsection (1A))”;

(b) after subsection (1) insert—

(1A) In this section and section 133 references to a corporal in any of
Her Majesty’s air forces do not include a corporal in the Royal
15Air Force Regiment.

(2) In section 135 of AFA 2006 (reduction in rank: limits on powers), for subsection
(3) substitute—

(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) or (b)
20(as the case may be) is reduction to the highest rank the person has held
in that force as an airman; but this is subject to subsection (3A).

(3A) In relation to the Royal Air Force Regiment, the reference in subsection
(3) to a corporal is to be read as a reference to a lance corporal.

13 Reduction in rank or rate

(1) 25In section 138 of AFA 2006 (prohibited combinations of punishments), for
subsections (2) and (3) substitute—

(2) If he awards detention, the only additional punishments he may award
are—

(a) reduction in rank or disrating (subject to subsection (8));

(b) 30a service compensation order.

(2) Omit section 293 of AFA 2006 (automatic reduction of rank or rate of warrant
officer or non-commissioned officer given custodial sentence or sentence of
service detention).

(3) The repeal of section 293 of AFA 2006 by subsection (2) does not affect any
35reduction in rank or disrating that occurred by virtue of that section before the
commencement of that repeal.

Armed Forces BillPage 16

14 Sentencing powers of Court Martial where election for trial by that court
instead of CO

(1) For section 165 of AFA 2006 substitute—

165 Sentencing powers of Court Martial where election for trial by that
5court instead of CO

Schedule 3A (sentencing powers of Court Martial where election for
trial by that court instead of CO) has effect.

(2) After Schedule 3 to AFA 2006 insert the Schedule set out in Schedule 1.

15 Increase in maximum term of detention for certain offences

(1) 10In section 305(5) of AFA 2006 (limit on term of imprisonment or detention for
an offence under that section), omit the words “or service detention”.

(2) In section 95 of the Reserve Forces Act 1996 (offences against orders and
regulations under section 4)—

(a) in subsection (2)(a)(ii) omit the words “or service detention”;

(b) 15after subsection (2A) insert—

(3) In relation to an offence committed before the coming into force
of section 281(5) of the Criminal Justice Act 2003, subsection
(2)(a)(ii) has effect as if the reference to 51 weeks were to 6
months.

16 20Enforcement of financial penalties

(1) After section 269 of AFA 2006 insert—

269A Fines: fixing of term of imprisonment for default

(1) Where the Court Martial imposes a fine on a person aged 18 or over, the
court must make an order fixing a term of imprisonment which the
25person is to undergo if—

(a) any sum which the person is liable to pay is not duly paid or
recovered; and

(b) an enforcement order is made.

(a)(a)any sum which the person is liable to pay is not duly paid or
30recovered; and

(b) an enforcement order is made.

(2) The Table in section 139(4) of the Sentencing Act (maximum periods of
imprisonment for default), as for the time being in force, applies for the
purpose of determining the maximum periods of imprisonment that
35may be fixed under this section for fines of the amounts set out in that
Table.

(3) Where the person mentioned in subsection (1) is sentenced by the court
to, or is serving or otherwise liable to serve, a term of—

(a) imprisonment,

(b) 40detention in a young offender institution, or

(c) detention under section 108 of the Sentencing Act (detention of
persons aged 18 to 21 for default or contempt),

the court may order that any term of imprisonment fixed under
subsection (1) shall not begin to run until after the end of that other
45term.

Armed Forces BillPage 17

(4) For the purposes of references in subsection (3) to a term of
imprisonment or detention which a person has been sentenced to or is
serving or liable to serve, consecutive terms and terms which are
wholly or partly concurrent are to be treated as a single term.

(5) 5References in subsection (3) to a term which a person is serving or liable
to serve are to a term imposed—

(a) by a relevant service court; or

(b) by a civilian court in any part of the United Kingdom.

(6) In this section—

  • 10“enforcement order” means an order under regulations made
    under section 322 (orders for enforcement by prescribed courts
    of fines etc);

  • “relevant service court” means the Court Martial, the Service
    Civilian Court, the Court Martial Appeal Court or the Supreme
    15Court on an appeal brought from the Court Martial Appeal
    Court.

269B Service compensation orders: power to set maximum term of
imprisonment for default

(1) This section applies where—

(a) 20the Court Martial makes a service compensation order and the
person by whom the compensation is payable is aged 18 or
over; and

(b) the court thinks that the usual default term is insufficient.

(2) In subsection (1) “the usual default term” means the period for which
25the person would be liable to be committed to prison for default if—

(a) an enforcement order were made; and

(b) by virtue of that order, the amount payable under the service
compensation order were treated as if it had been a fine
imposed on a conviction by a magistrates’ court in England and
30Wales.

(3) Where this section applies, the court may specify a longer period as the
maximum term to which the person is liable to be committed to prison
for default if an enforcement order is made.

(4) The Table in section 139(4) of the Sentencing Act (maximum periods of
35imprisonment for default), as for the time being in force, applies for the
purpose of determining the maximum periods of imprisonment that
may be specified under this section for service compensation orders of
the amounts set out in that Table.

(5) In this section “enforcement order” has the same meaning as in section
40269A.

269C Orders under section 269A or 269B against service parents or service
guardians: appeals

(1) This section applies where—

(a) the Court Martial makes an order under section 268 in respect
45of a fine or service compensation order (fine or compensation to
be paid by service parent or service guardian); and

Armed Forces BillPage 18

(b) the court also makes an order under section 269A or 269B (“a
default term order”) in respect of the parent or guardian (“P”).

(2) For the purposes of the Court Martial Appeals Act 1968—

(a) the default term order is to be treated as a sentence passed on P
5for the offence in respect of which the fine or service
compensation order was imposed; and

(b) P is to be treated, for the purpose of enabling P to appeal against
the default term order, as if P had been convicted of the offence
by the Court Martial.

(3)
10For the purposes of any appeal against the default term order,
references in section 16A of the Court Martial Appeals Act 1968 to
passing a sentence include making an order.

(4) On an appeal against the default term order, the Court Martial Appeal
Court may (as an alternative to exercising its powers under section
1516A(2) of that Act) quash the order; but this is subject to subsection (5).

(5) If the default term order was made under section 269A, the power
under subsection (4) may only be exercised if the court also quashes the
order under section 268.

(2) In section 322(3) of AFA 2006 (financial penalty enforcement orders), after
20paragraph (a) insert—

(aa) about the effect, where a sum is certified in such an order, of an
order made by the Court Martial under—

(i) section 269A (fines: fixing of term of imprisonment for
default); or

(ii) 25section 269B (service compensation order: maximum
term of imprisonment for default);.

17 Service sexual offences prevention orders

(1) After section 232 of AFA 2006 insert—

Service sexual offences prevention orders etc

232A 30 Service sexual offences prevention orders

(1) The Court Martial or the Service Civilian Court may make an order
under this section where—

(a) it deals with a person within subsection (2) (“the defendant”) in
respect of—

(i) 35a qualifying section 42 offence of which the defendant
has been convicted; or

(ii) a relevant finding in relation to a qualifying section 42
offence; and

(b) it is satisfied that it is necessary to make an order under this
40section for the purpose of protecting the service community
outside the United Kingdom from serious sexual harm from the
defendant.

(2) The following are persons within this subsection—

(a) a member of the regular forces;

Armed Forces BillPage 19

(b) a member of the reserve forces (whether or not for the time
being subject to service law);

(c) a civilian subject to service discipline;

(d) a person who the court is satisfied is intending to become, or
5likely to become, a civilian subject to service discipline.

(3) An order under this section—

(a) prohibits the defendant from doing anything described in the
order; and

(b) has effect for a fixed period, of at least five years, specified in the
10order or until further order.

(4) The only prohibitions that may be included in the order are those
necessary for the purpose of protecting the service community outside
the United Kingdom from serious sexual harm from the defendant.

(5) Where—

(a) 15a court makes an order under this section, and

(b) the defendant is already subject to such an order (whether made
by that court or another),

the earlier order ceases to have effect.

(6) In this section and sections 232B to 232E—

(a) 20“protecting the service community outside the United Kingdom
from serious sexual harm” from a person means protecting the
service community outside the United Kingdom, or particular
members of that community, from serious physical or
psychological harm, caused by the person committing one or
25more offences under section 42 as respects which the
corresponding offence under the law of England and Wales is
an offence listed in Schedule 3 to SOA 2003;

(b) “qualifying section 42 offence” means an offence under section
42 as respects which the corresponding offence under the law of
30England and Wales is an offence listed in Schedule 3 or 5 to SOA
2003;

(c) “relevant finding”, in relation to an offence, means—

(i) a finding that a person is not guilty of the offence by
reason of insanity; or

(ii) 35a finding that a person is unfit to stand trial and has
done the act charged;

(d) “service community” means persons subject to service law and
civilians subject to service discipline;

(e) “SOA 2003” means the Sexual Offences Act 2003.

(7) 40In construing subsection (6)(a) or (b), any condition subject to which an
offence is listed in Schedule 3 to SOA 2003 that relates—

(a) to the way in which a person is dealt with in respect of the
offence or a relevant finding, or

(b) to the age of any person,

45is to be disregarded.