Armed Forces Bill (HL Bill 76)

Juries Act 1974 (c. 23)Juries Act 1974 (c. 23)

9 In section 9B(3) of the Juries Act 1974 (judges who may determine whether

juror to be discharged on account of disability)—

(a) omit the “or” at the end of paragraph (c); and

(b) 5after paragraph (d) insert “, or

(e) subject to subsection (4), a qualifying judge advocate

(within the meaning of the Senior Courts Act 1981).

(4) Subsection (3)(e) applies only where the case relates to a

summons to attend for jury service in the Crown Court.”;

10but this is subject to paragraph 10.

10 (1) This paragraph applies if the amendment made to section 9B(3) of the Juries

Act 1974 by paragraph 3 of Schedule 4 to the Courts Act 2003 has not come

into force before the commencement of paragraph 1 of this Schedule.

(2) Until the coming into force of that amendment—

(a) 15paragraph 9 above does not apply; and

(b) section 9B(3) of the Juries Act 1974 is amended as follows.

(3) The words from “any judge” to the end become paragraph (a).

(4) After paragraph (a) insert “, or

(b) subject to subsection (4), any qualifying judge advocate

20(within the meaning of the Senior Courts Act 1981).

(4) Subsection (3)(b) applies only where the case relates to a summons to

attend for jury service in the Crown Court.”

Police and Criminal Evidence Act 1984 (c. 60)Police and Criminal Evidence Act 1984 (c. 60)

11 (1) Schedule 1 to the Police and Criminal Evidence Act 1984 (access to excluded

25or special procedure material) is amended as follows.

(2) In paragraph 17 (as amended by section 114(1) and (9) of the Serious

Organised Crime and Police Act 2005), after “a Recorder” insert “, a

qualifying judge advocate (within the meaning of the Senior Courts Act

1981)”.

Section 29

30SCHEDULE 3 Minor amendments of service legislation

Definition of “service policeman” in Armed Forces Act 1991

1 In section 22A of the Armed Forces Act 1991 (removal and accommodation

of children by service police in emergency), in subsection (8) for the

35definition of “service policeman” substitute—

• ““service policeman” has the meaning given by section 375(1) of
  
  the Armed Forces Act 2006.”

Powers of arrest of an officer acting on behalf of provost officer

2 In section 67(2) of AFA 2006 (persons who may arrest an officer), for

paragraph (c) substitute—

“(c) by a person who is lawfully exercising authority on behalf of

5a provost officer, and who—

(i) is an officer; or

(ii) is acting on the order of an officer.”

Entry for purposes of arrest by service policeman

3 In section 90(6) of AFA 2006 (powers of arrest to which section applies), for

10“or 111,” substitute “, 111 or 303,”.

Definition of “service living accommodation”

4 (1) Section 96 of AFA 2006 (definition of “service living accommodation” etc for

purposes of Part 3) is amended as follows.

(2) In subsection (1), in each of paragraphs (a), (b) and (c) for “subject to service

15law” substitute “within subsection (1A)”.

(3) After subsection (1) insert—

“(1A) The following are persons within this subsection—

(a) a person subject to service law;

(b) a civilian subject to service discipline.”

20Consultation of DSP before decision by service police on referral of case

5 (1) In section 116 of AFA 2006 (referral of case following investigation by service

or civilian police), for subsection (4) substitute—

“(4) Subsection (4A) applies if—

(a) the allegation or circumstances would indicate to a

25reasonable person that a Schedule 2 offence has or might

have been committed, or

(b) any circumstances investigated are circumstances of a

description prescribed by regulations under section 128 for

the purposes of section 114,

30and a service policeman proposes not to refer the case to the Director

under subsection (2).

(4A) If this subsection applies, the service policeman must consult the

Director as soon as is reasonably practicable (and before any referral

of the case under subsection (3)).”

(2) 35In section 117(3)(b) (referral of multiple offences), for “116(3) or (4)”

substitute “116(3) to (4A)”.

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

6 (1) Section 125 of AFA 2006 (powers of Director of Service Prosecutions in

respect of charge allocated for Court Martial trial) is amended as follows.

(2) 40In subsection (3)—

(a) insert “or” after paragraph (a); and

(b) omit paragraph (c) and the “or” preceding it.

(3) Omit subsection (4).

Right to elect Court Martial trial

7 5In section 129 of AFA 2006 (right to elect Court Martial trial), for subsection

(4) substitute—

“(4) Subsection (5) applies if an opportunity to elect Court Martial trial of

a charge (“the original charge”) has been given under subsection (1)

and subsequently—

(a) 10the charge is amended;

(b) another charge is substituted for it; or

(c) an additional charge is brought.

(5) Subsection (1) applies in relation to the amended, substituted or

additional charge; and if the amendment, substitution or addition

15takes place after the start of the summary hearing, that subsection

has effect in relation to the charge as if the reference to hearing a

charge summarily were to proceeding with the hearing.

(6) In subsection (4)—

(a) “amended” means amended under section 123(2)(a) or, in the

20case of a charge referred to the Director of Service

Prosecutions otherwise than on election for Court Martial

trial, amended under section 125(2)(a) and referred to the

commanding officer under section 125(2)(e);

(b) “substituted” means substituted under section 123(2)(b) or,

25where the original charge was referred to the Director of

Service Prosecutions otherwise than on election for Court

Martial trial, substituted under section 125(2)(b) and referred

to the commanding officer under section 125(2)(e);

(c) “brought”, in relation to an additional charge, means brought

30under section 123(2)(c) or, where the original charge was

referred to the Director of Service Prosecutions otherwise

than on election for Court Martial trial, brought under section

125(2)(c) and referred to the commanding officer under

section 125(2)(e).

(7) 35Subsection (8) applies where—

(a) an opportunity to elect Court Martial trial of a charge has

been given under this section;

(b) the accused has not elected Court Martial trial; and

(c) at a time after the giving of the opportunity to elect, the

40commanding officer obtains extended powers for the

purposes of any provision of section 133, 134, 135 or 194.

(a)(a)an opportunity to elect Court Martial trial of a charge has

been given under this section;

(b) the accused has not elected Court Martial trial; and

(c) 45at a time after the giving of the opportunity to elect, the

commanding officer obtains extended powers for the

purposes of any provision of section 133, 134, 135 or 194.

(8) The provisions of this section requiring the giving of an opportunity

to elect Court Martial trial of the charge shall apply again.”

8 50In section 130(3) of AFA 2006 (consequences of election for Court Martial

trial), for “if the charge is amended after referral.” substitute “—

(a) where the charge is amended after referral;

(b) to any charge substituted for or added to the charge after

referral; or

(c) where extended powers for the purposes of any provision of

section 133, 134, 135 or 194 are obtained after referral.”

9 5After section 130 of AFA 2006 insert—

“130A Restrictions on DSP’s powers to substitute or add charges after

election

(1) This section applies where—

(a) a charge is for the time being regarded for the purposes of

10Part 5 as allocated for Court Martial trial; and

(b) the charge is in respect of an offence which would be a

relevant offence for the purposes of Schedule 3A (sentencing

powers of Court Martial where election for trial by that court)

if the accused were convicted of it.

(2) 15The Director of Service Prosecutions (“the Director”) may not

without the written consent of the accused substitute under section

125(2)(b)—

(a) a charge in respect of an offence which is not one that may be

dealt with at a summary hearing (see section 53); or

(b) 20a charge in respect of an offence within section 54(2) (offences

that may be dealt with summarily only with permission or by

senior officer), except where the relevant charge was in

respect of such an offence.

(3) In subsection (2)(b) “relevant charge” means—

(a) 25in relation to a case A offence or a case B offence (within the

meaning of Schedule 3A), the charge in respect of which the

accused elected Court Martial trial; and

(b) in relation to a case C offence or a case D offence (within the

meaning of Schedule 3A), the charge referred as mentioned

30in paragraph 4(c) of that Schedule.

(4) The Director may not without the written consent of the accused

bring under section 125(2)(c) a charge in addition to the charge.

(5) In construing Part 1 of Schedule 3A (relevant offences) for the

purposes of this section, paragraphs 3(b) and 5(c) of that Schedule

35are to be disregarded.”

Summary hearing

10 In each of sections 133(3), 134(2) and 135(5) of AFA 2006 (obtaining extended

powers of punishment), for “before the summary hearing of the charge or

charges” substitute “within the relevant time (defined by section 135A)”.

11 40After section 135 of AFA 2006 insert—

“135A Extended powers: time for obtaining

(1) In each of sections 133(3), 134(2) and 135(5), “within the relevant

time” means before the start of the summary hearing; but this is

subject to subsections (2) and (3).

(2) 45Subsection (3) applies where after the start of a summary hearing—

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

(b) a charge is substituted for another charge under section

123(2)(b); or

(c) an additional charge is brought under section 123(2)(c).

(3) 5Any application for or grant of extended powers which is made in

the period between—

(a) the making of the amendment, substitution or addition, and

(b) the time when the summary hearing is proceeded with after

the amendment, substitution or addition,

10is to be treated for the purposes of sections 133(3), 134(2) and 135(5)

as made within the relevant time.”

12 In section 136 of AFA 2006 (maximum amount of fine), for subsections (1) to

(3) substitute—

“(1) The maximum amount of a fine that a commanding officer may

15award is 28 days’ pay.”

13 In section 153(2) of AFA 2006 (powers to make rules relating to summary

hearings etc), in each of paragraphs (d) and (e) after “applications for” insert

“, and grants of,”.

Activation of suspended sentence of service detention

14 20In each of sections 190(1)(a), 191(2)(b) and 193(2)(b) of AFA 2006

(circumstances where suspended sentence may be activated), for “an offence

in the British Islands” substitute “an offence under the law of any part of the

British Islands”.

15 (1) Section 194 of AFA 2006 (limits on commanding officer’s powers to activate

25suspended sentence) is amended as follows.

(2) In subsection (4) for “before the relevant time” substitute “within the

relevant time (defined by section 194A)”.

(3) Omit subsection (6).

16 After section 194 of AFA 2006 insert—

“194A 30 Extended powers of activation: time for obtaining

(1) In section 194(4) “within the relevant time” means—

(a) where section 193(2)(a) applies, before the start of the

summary hearing of the charge mentioned there (but this is

subject to subsections (2) and (3));

(b) 35where section 193(2)(b) applies, before the start of the hearing

as to whether an order under section 193 should be made.

(2) Subsection (3) applies where the summary hearing of the charge

mentioned in section 193(2)(a) is one where, after the start of the

hearing—

(a) 40a charge is amended under section 123(2)(a);

(b) a charge is substituted for another charge under section

123(2)(b); or

(c) an additional charge is brought under section 123(2)(c).

(3) Any application for or grant of extended powers which is made in

the period between—

(a) the making of the amendment, substitution or addition, and

(b) the time when the summary hearing is proceeded with after

5the amendment, substitution or addition,

is to be treated for the purposes of section 194(4) as made within the

relevant time.”

Suspended sentences of imprisonment

17 In section 200(5) of AFA 2006 (suspended sentences of imprisonment), in

10paragraph (b) of the words treated as substituted, for “in the British Islands”

substitute “under the law of any part of the British Islands”.

Detention and training orders

18 In section 213 of AFA 2006 (application to service detention and training

orders of provisions relating to civilian orders)—

(a) 15in the second paragraph of subsection (1), after “105,” insert “106(4)

to (6),”;

(b) in subsection (2), after “(13)” insert “, 106(6)”.

19 In section 214(2)(b) of AFA 2006 (offences during currency of detention and

training order), for “an offence in the British Islands” substitute “an offence

20under the law of any part of the British Islands”.

Restrictions on community punishments

20 (1) In section 270 of AFA 2006 (general restrictions on community

punishments), for subsections (7) and (8) substitute—

“(7) Subsections (1) and (2)(b) are subject to section 270A.”

(2) 25After that section insert—

“270A Exception to restrictions on community punishments

(1) If the conditions in subsection (2) are met, the power to award a

community punishment in respect of an offence (“the current

offence”) may be exercised even though the court would not

30otherwise regard—

(a) the current offence, or

(b) the combination of the current offence and one or more

offences associated with it,

as serious enough to warrant a community punishment (despite the

35effect of section 238(1)(b)).

(2) The conditions referred to in subsection (1) are—

(a) that the offender was aged 16 or over when convicted of the

current offence;

(b) that on three or more previous occasions the offender has

40been awarded a relevant financial penalty; and

(c) that the court, having regard to all the circumstances,

considers that it would be in the interests of justice to award

a community punishment.

(3) In subsection (2)(b) a “relevant financial penalty” means a sentence

consisting only of a fine—

(a) passed on the offender in respect of a service offence, or

member State service offence, committed by the offender

5when aged 16 or over;

(b) passed on the offender on conviction by a civilian court in the

British Islands of an offence so committed; or

(c) passed on the offender on conviction by a civilian court in

another member State of a relevant offence so committed.

(4) 10For the purposes of subsection (2)(b) it is immaterial whether the

offender has on other previous occasions been awarded a sentence

other than a relevant financial penalty.

(5) The circumstances which must be had regard to under subsection

(2)(c) include—

(a) 15the nature of the offences for which the relevant financial

penalties were awarded;

(b) the relevance of those offences to the current offence; and

(c) the time that has elapsed since those penalties were awarded.

(6) For the purposes of subsection (3), none of the following forms part

20of an offender’s sentence—

(a) a service compensation order;

(b) a compensation order under—

(i) section 130 of the Sentencing Act;

(ii) section 249 of the Criminal Procedure (Scotland) Act

251995; or

(iii) Article 14 of the Criminal Justice (Northern Ireland)

Order 1994;

(c) a surcharge under section 161A of the 2003 Act.

(7) This section does not limit the extent to which a court may, in

30accordance with section 238, treat previous convictions of the

offender as increasing the seriousness of an offence.

(8) In this section—

(a) “member State service office” means an offence which—

(i) was the subject of proceedings under the law

35governing all or any of the naval, military or air forces

of a member State other than the United Kingdom;

and

(ii) would constitute a service offence or an offence under

the law of any part of the United Kingdom if it were

40committed in any part of the United Kingdom, by a

person subject to service law, at the time of the

conviction of the current offence;

(b) “relevant offence” means an offence which would constitute

an offence under the law of any part of the United Kingdom

45if it were committed in any part of the United Kingdom at the

time of the conviction of the current offence.”

(3) In consequence of the amendments made by this paragraph, paragraphs

26(3) and (4) and 27 of Schedule 25 to the Criminal Justice and Immigration

Act 2008 (which amend AFA 2006 but have not been commenced) are

omitted.

Definition of “period when unlawfully at large”

21 In section 301(5) of AFA 2006 (duration of sentences: persons unlawfully at

5large), for the definition of “period when the person is unlawfully at large”

substitute—

• “period when the person is unlawfully at large” means (subject
  
  to any rules made by virtue of section 300(2)(g))—

  (a)

  the period beginning with the day when the person
  
  10becomes unlawfully at large and ending with the day
  
  when the person is taken back into custody (service or
  
  otherwise) or returns to the place where the sentence
  
  was being served; or

  (b)

  in relation to a person who is absent when sentenced,
  
  15the period beginning with the day when the sentence
  
  is passed and ending with the day when the person is
  
  taken into custody (service or otherwise);”.

Persons treated as members of service police force

22 Omit section 375(5) of AFA 2006 (Provost Marshal and other officers to be

20taken to be members of appropriate service police force).

Power to make transitional provision under AFA 2006

23 In section 380 of AFA 2006 (power to make transitional provision in

connection with the coming into force of that Act), after subsection (8)

insert—

“(8A) 25The power under subsection (1) to make transitional provision in

connection with the coming into force of any provision made by or

under this Act includes power, where this Act or any provision made

under it is amended, to amend any earlier order under this section.”

Activation of suspended sentence of imprisonment

24 (1) 30Schedule 7 to AFA 2006 (suspended prison sentence: further conviction etc)

is amended as follows.

(2) Paragraph 6 becomes sub-paragraph (1) of that paragraph.

(3) In paragraph (a) of that sub-paragraph, for “an offence in the British Islands”

substitute “an offence under the law of any part of the British Islands”.

(4) 35After that sub-paragraph insert—

“(2) Anything that under section 376(1) and (2) of this Act is to be

treated as a conviction for the purposes of this Act is also to be

treated as a conviction for the purposes of paragraph 8(1)(b) of

that Schedule as modified by this paragraph.”

Section 30

SCHEDULE 4 Consequential amendments

Road Traffic Act 1988 (c. 52)1988 (c. 52)

1 In section 184(3) of the Road Traffic Act 1988 (definitions relating to persons

5subject to service discipline), for paragraph (a) of the definition of “member

of the provost staff” substitute—

“(a) a service policeman (within the meaning given by section

375(1) of the Armed Forces Act 2006); or”.

Extradition Act 2003 (c. 41)2003 (c. 41)

2 10In section 216(13) of the Extradition Act 2003 (definition of “service

policeman”), for the words from “means” to the end substitute “has the

meaning given by section 375(1) of the Armed Forces Act 2006”.

Armed Forces Act 2006 (c. 52)Armed Forces Act 2006 (c. 52)

3 (1) Section 50(2) of AFA 2006 (definition of “service offence”) is amended as

15follows.

(2) After paragraph (a) insert—

“(aa) an offence under section 93A, 93E or 93G (testing for alcohol

or drugs on suspicion);”.

(3) After paragraph (c) insert—

“(ca) 20an offence under section 232G (breach of service sexual

offences prevention order or extended prohibitions order);”.

(4) For paragraph (e) substitute—

“(e) an offence under section 305 (random drug testing);”.

4 (1) Section 53(1) of AFA 2006 (offences that may be dealt with at a summary

25hearing) is amended as follows.

(2) After paragraph (g) insert—

“(ga) an offence under section 93A, 93E or 93G (testing for alcohol

or drugs on suspicion);”.

(3) For paragraph (i) substitute—

“(i) 30an offence under section 305 (random drug testing);”.

5 In section 58 of AFA 2006 (time limit for charging civilian formerly subject

to service discipline)—

(a) in subsection (5)(a), after sub-paragraph (i) insert—

“(ia) leaving a country in which he fell within

35paragraph 5 of that Schedule;”;

(b) in subsection (7), after paragraph (a) insert—

“(aa) in relation to a person who falls within subsection

(5)(a) by reason of leaving a country in which he fell

within paragraph 5 of that Schedule, in that country

40or any other country in which he falls within that

paragraph;”;

(c) after subsection (7) insert—

“(8) In subsections (5)(a)(ia) and (7)(aa) “country” is to be read in

accordance with paragraph 14 of Schedule 15.”

6 In section 87(1) of AFA 2006 (power of CO to authorise entry and search by

5service policeman), for paragraphs (a) and (b) substitute—

“(a) that a relevant offence within the meaning of section 84 has

been committed;

(b) that material which is likely to be of substantial value

(whether by itself or together with other material) to the

10investigation of the offence is on the premises;

(c) that the material would be likely to be admissible in evidence

at a trial for the offence;

(d) that it does not consist of or include items subject to legal

privilege, excluded material or special procedure material

15(within the meaning given by section 84);

(e) that at least one of the conditions specified in section 83(4)

applies; and

(f) that it is likely that the purpose of the search would be

frustrated or seriously prejudiced if no search could be

20carried out before the time mentioned in subsection (2).”

7 In section 88(1) of AFA 2006 (power of CO to authorise entry and search by

person other than service policeman), for paragraphs (a) and (b) substitute—

“(a) that a relevant offence within the meaning of section 84 has

been committed;

(b) 25that material which is likely to be of substantial value

(whether by itself or together with other material) to the

investigation of the offence is on the premises;

(c) that the material would be likely to be admissible in evidence

at a trial for the offence;

(d) 30that it does not consist of or include items subject to legal

privilege, excluded material or special procedure material

(within the meaning given by section 84);

(e) that at least one of the conditions specified in section 83(4)

applies (the reference in section 83(4)(e) to a service

35policeman being read as a reference to a person authorised

under this subsection); and