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Session 1999-2000
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Arrangement of Clauses (Contents)

Armed Forces Discipline Bill
 
Custody without charge: other cases.     47E. - (1) Sections 47A to 47D of this Act apply-
 
 
    (a) where a person is delivered into naval custody under section 103(3), 108(2) or 109(1) or (3) of this Act or under Schedule 2 to the Reserve Forces Act 1996, and
 
    (b) in any other case where a person arrested by a constable is delivered into naval custody,
  as they apply where a person is arrested under section 45 of this Act, subject to such modifications as the Secretary of State may by regulations made by statutory instrument prescribe.
 
      (2) In those cases references to the relevant time are-
 
 
    (a) in relation to a person delivered into naval custody following arrest under section 103 or 105 of this Act or paragraph 2 of Schedule 2 to the 1996 Act or otherwise following arrest by a constable, references to the time of the arrest;
 
    (b) in relation to a person delivered into naval custody following surrender under section 188 of this Act or paragraph 6 of that Schedule, references to the time of the surrender.
      (3) Regulations under subsection (1) above shall be subject to annulment in pursuance of a resolution of either House of Parliament.
 
Custody without charge: supplementary.     47F. - (1) The Defence Council may by regulations make provision with respect to-
 
 
    (a) the delegation by the commanding officer of a person in naval custody of any of the commanding officer's functions under sections 47A to 47D of this Act to any other person subject to this Act;
 
    (b) circumstances in which a person kept in naval custody without being charged is to be informed of, or given an opportunity to make representations about, any matter;
 
    (c) the keeping of written records relating to compliance with any requirement of sections 47A to 47D of this Act or of regulations under paragraph (b) above.
      (2) Any reference in sections 47B to 47D of this Act to a period of time is to be treated as approximate only."
 
Custody after charge.     2. - (1) After section 75E of the Army Act 1955 there is inserted-
 
 
"Custody after charge.     75F. - (1) Where a person subject to military law ("the accused") is kept in military custody after being charged with an offence against any provision of this Part of this Act, he shall be brought before a judicial officer as soon as practicable.
 
    (2) Where the accused is brought before a judicial officer in accordance with subsection (1) above, the judicial officer may by order authorise the keeping of the accused in military custody, but only if-
 
 
    (a) the judicial officer is satisfied that there are substantial grounds for believing that the accused, if released from military custody, would-
 
      (i) fail to attend any hearing in the proceedings against him,
 
      (ii) commit an offence while released, or
 
      (iii) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person;
 
    (b) the judicial officer is satisfied that the accused should be kept in military custody for his own protection or, if he is under 17 years of age, for his own welfare;
 
    (c) the judicial officer is satisfied that it has not been practicable to obtain sufficient information for the purpose of taking the decisions required by this subsection for want of time since the accused was charged with the offence; or
 
    (d) the accused, having been released from military custody after being charged with the offence, has deserted or absented himself without leave.
      (3) In taking the decision required by subsection (2)(a) above, the judicial officer shall have regard to such of the following considerations as appear to him to be relevant-
 
 
    (a) the nature and seriousness of the alleged offence (and the probable method of dealing with the accused for it),
 
    (b) the character, antecedents, associations and social ties of the accused,
 
    (c) the accused's behaviour on previous occasions while charged with an offence and released from military custody or while on bail in criminal proceedings,
 
    (d) the strength of the evidence that the accused committed the offence,
  as well as to any others which appear to be relevant.
 
      (4) If-
 
 
    (a) the accused is charged with an offence to which this subsection applies;
 
    (b) representations are made as to any of the matters mentioned in subsection (2)(a) above; and
 
    (c) the judicial officer decides not to authorise the keeping of the accused in military custody,
  the judicial officer shall state the reasons for his decision and shall cause those reasons to be included in the record of the proceedings.
 
      (5) Subsection (4) above applies to any offence under section 70 of this Act where the corresponding civil offence is-
 
 
    (a) murder;
 
    (b) manslaughter;
 
    (c) rape;
 
    (d) attempted murder; or
 
    (e) attempted rape.
      (6) The period for which a judicial officer may, by an order under subsection (2) above, authorise the keeping of the accused in military custody shall be such period, ending (subject to section 75G(7) of this Act) not later than 8 days after the day on which the order is made, as he thinks fit having regard to the evidence before him.
 
      (7) An order under subsection (2) above does not authorise the keeping of the accused in military custody-
 
 
    (a) if the accused is subsequently released from military custody, at any time after his release; or
 
    (b) at any time after the award of punishment on summary dealing with the charge or any amended or substituted charge.
      (8) Subsection (1) above does not apply where the accused is charged at a time when he is kept in military custody by reason of an award or sentence under this Act or of an order under subsection (2) above, unless that reason ceases to apply."
 
      (2) After section 75E of the Air Force Act 1955 there is inserted-
 
 
"Custody after charge.     75F. - (1) Where a person subject to air-force law ("the accused") is kept in air-force custody after being charged with an offence against any provision of this Part of this Act, he shall be brought before a judicial officer as soon as practicable.
 
    (2) Where the accused is brought before a judicial officer in accordance with subsection (1) above, the judicial officer may by order authorise the keeping of the accused in air-force custody, but only if-
 
 
    (a) the judicial officer is satisfied that there are substantial grounds for believing that the accused, if released from air-force custody, would-
 
      (i) fail to attend any hearing in the proceedings against him,
 
      (ii) commit an offence while released, or
 
      (iii) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person;
 
    (b) the judicial officer is satisfied that the accused should be kept in air-force custody for his own protection or, if he is under 17 years of age, for his own welfare;
 
    (c) the judicial officer is satisfied that it has not been practicable to obtain sufficient information for the purpose of taking the decisions required by this subsection for want of time since the accused was charged with the offence; or
 
    (d) the accused, having been released from air-force custody after being charged with the offence, has deserted or absented himself without leave.
      (3) In taking the decision required by subsection (2)(a) above, the judicial officer shall have regard to such of the following considerations as appear to him to be relevant-
 
 
    (a) the nature and seriousness of the alleged offence (and the probable method of dealing with the accused for it),
 
    (b) the character, antecedents, associations and social ties of the accused,
 
    (c) the accused's behaviour on previous occasions while charged with an offence and released from air-force custody or while on bail in criminal proceedings,
 
    (d) the strength of the evidence that the accused committed the offence,
  as well as to any others which appear to be relevant.
 
      (4) If-
 
 
    (a) the accused is charged with an offence to which this subsection applies;
 
    (b) representations are made as to any of the matters mentioned in subsection (2)(a) above; and
 
    (c) the judicial officer decides not to authorise the keeping of the accused in air-force custody,
  the judicial officer shall state the reasons for his decision and shall cause those reasons to be included in the record of the proceedings.
 
      (5) Subsection (4) above applies to any offence under section 70 of this Act where the corresponding civil offence is-
 
 
    (a) murder;
 
    (b) manslaughter;
 
    (c) rape;
 
    (d) attempted murder; or
 
    (e) attempted rape.
      (6) The period for which a judicial officer may, by an order under subsection (2) above, authorise the keeping of the accused in air-force custody shall be such period, ending (subject to section 75G(7) of this Act) not later than 8 days after the day on which the order is made, as he thinks fit having regard to the evidence before him.
 
      (7) An order under subsection (2) above does not authorise the keeping of the accused in air-force custody-
 
 
    (a) if the accused is subsequently released from air-force custody, at any time after his release; or
 
    (b) at any time after the award of punishment on summary dealing with the charge or any amended or substituted charge.
      (8) Subsection (1) above does not apply where the accused is charged at a time when he is kept in air-force custody by reason of an award or sentence under this Act or of an order under subsection (2) above, unless that reason ceases to apply."
 
      (3) After section 47F of the 1957 Act there is inserted-
 
 
"Custody after charge.     47G. - (1) Where a person subject to this Act ("the accused") is kept in naval custody after being charged with an offence under any provision of Part I of this Act, he shall be brought before a judicial officer as soon as practicable.
 
    (2) Where the accused is brought before a judicial officer in accordance with subsection (1) above, the judicial officer may by order authorise the keeping of the accused in naval custody, but only if-
 
 
    (a) the judicial officer is satisfied that there are substantial grounds for believing that the accused, if released from naval custody, would-
 
      (i) fail to attend any hearing in the proceedings against him,
 
      (ii) commit an offence while released, or
 
      (iii) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person;
 
    (b) the judicial officer is satisfied that the accused should be kept in naval custody for his own protection or, if he is under 17 years of age, for his own welfare;
 
    (c) the judicial officer is satisfied that it has not been practicable to obtain sufficient information for the purpose of taking the decisions required by this subsection for want of time since the accused was charged with the offence; or
 
    (d) the accused, having been released from naval custody after being charged with the offence, has deserted or absented himself without leave.
      (3) In taking the decision required by subsection (2)(a) above, the judicial officer shall have regard to such of the following considerations as appear to him to be relevant-
 
 
    (a) the nature and seriousness of the alleged offence (and the probable method of dealing with the accused for it),
 
    (b) the character, antecedents, associations and social ties of the accused,
 
    (c) the accused's behaviour on previous occasions while charged with an offence and released from naval custody or while on bail in criminal proceedings,
 
    (d) the strength of the evidence that the accused committed the offence,
  as well as to any others which appear to be relevant.
 
      (4) If-
 
 
    (a) the accused is charged with an offence to which this subsection applies;
 
    (b) representations are made as to any of the matters mentioned in subsection (2)(a) above; and
 
    (c) the judicial officer decides not to authorise the keeping of the accused in naval custody,
  the judicial officer shall state the reasons for his decision and shall cause those reasons to be included in the record of the proceedings.
 
      (5) Subsection (4) above applies to any offence under section 42 of this Act where the civil offence constituting the offence is-
 
 
    (a) murder;
 
    (b) manslaughter;
 
    (c) rape;
 
    (d) attempted murder; or
 
    (e) attempted rape.
      (6) The period for which a judicial officer may, by an order under subsection (2) above, authorise the keeping of the accused in naval custody shall be such period, ending (subject to section 47H(7) of this Act) not later than 8 days after the day on which the order is made, as he thinks fit having regard to the evidence before him.
 
      (7) An order under subsection (2) above does not authorise the keeping of the accused in naval custody-
 
 
    (a) if the accused is subsequently released from naval custody, at any time after his release; or
 
    (b) at any time after the award of punishment on summary trial of the charge or any amended or substituted charge.
      (8) Subsection (1) above does not apply where the accused is charged at a time when he is kept in naval custody by reason of an award or sentence under this Act or of an order under subsection (2) above, unless that reason ceases to apply."
 
Review of custody after charge.     3. - (1) After section 75F of the Army Act 1955 there is inserted-
 
 
"Review of custody after charge.     75G. - (1) Where the keeping of the accused in military custody is authorised by an order under section 75F(2) of this Act, it shall be reviewed by a judicial officer not later than the end of the period for which it is authorised.
 
    (2) If at any time it appears to the accused's commanding officer that the grounds on which such an order was made have ceased to exist, he shall-
 
 
    (a) release the accused from military custody, or
 
    (b) request a review.
      (3) Where a request is made under subsection (2) above, a review shall be carried out as soon as practicable.
 
      (4) Subsections (2) to (6) of section 75F of this Act apply on a review as they apply where the accused is brought before a judicial officer under subsection (1) of that section.
 
      (5) At the first review the accused may support an application for release from military custody with any argument as to fact or law that he desires (whether or not he has advanced that argument previously).
 
      (6) At subsequent reviews the judicial officer need not hear arguments as to fact or law which have been heard previously.
 
      (7) On a review at a hearing at which the accused is legally represented, the judicial officer may, if the accused consents, authorise the keeping of the accused in military custody for a period of not more than 28 clear days.
 
      (8) In this section "review" means a review under subsection (1) above."
 
      (2) After section 75F of the Air Force Act 1955 there is inserted-
 
 
"Review of custody after charge.     75G. - (1) Where the keeping of the accused in air-force custody is authorised by an order under section 75F(2) of this Act, it shall be reviewed by a judicial officer not later than the end of the period for which it is authorised.
 
    (2) If at any time it appears to the accused's commanding officer that the grounds on which such an order was made have ceased to exist, he shall-
 
 
    (a) release the accused from air-force custody or
 
    (b) request a review.
      (3) Where a request is made under subsection (2) above, a review shall be carried out as soon as practicable.
 
      (4) Subsections (2) to (6) of section 75F of this Act apply on a review as they apply where the accused is brought before a judicial officer under subsection (1) of that section.
 
      (5) At the first review the accused may support an application for release from air-force custody with any argument as to fact or law that he desires (whether or not he has advanced that argument previously).
 
      (6) At subsequent reviews the judicial officer need not hear arguments as to fact or law which have been heard previously.
 
      (7) On a review at a hearing at which the accused is legally represented, the judicial officer may, if the accused consents, authorise the keeping of the accused in air-force custody for a period of not more than 28 clear days.
 
      (8) In this section "review" means a review under subsection (1) above."
 
      (3) After section 47G of the 1957 Act there is inserted-
 
 
"Review of custody after charge.     47H. - (1) Where the keeping of the accused in naval custody is authorised by an order under section 47G(2) of this Act, it shall be reviewed by a judicial officer not later than the end of the period for which it is authorised.
 
    (2) If at any time it appears to the accused's commanding officer that the grounds on which such an order was made have ceased to exist, he shall-
 
 
    (a) release the accused from naval custody, or
 
    (b) request a review.
      (3) Where a request is made under subsection (2) above, a review shall be carried out as soon as practicable.
 
      (4) Subsections (2) to (6) of section 47G of this Act apply on a review as they apply where the accused is brought before a judicial officer under subsection (1) of that section.
 
      (5) At the first review the accused may support an application for release from naval custody with any argument as to fact or law that he desires (whether or not he has advanced that argument previously).
 
      (6) At subsequent reviews the judicial officer need not hear arguments as to fact or law which have been heard previously.
 
      (7) On a review at a hearing at which the accused is legally represented, the judicial officer may, if the accused consents, authorise the keeping of the accused in naval custody for a period of not more than 28 clear days.
 
      (8) In this section "review" means a review under subsection (1) above."
 
Custody during court-martial proceedings.     4. - (1) After section 75G of the Army Act 1955 there is inserted-
 
 
"Custody during court-martial proceedings.     75H. - (1) Where the accused is kept in military custody under an order under section 75F(2) of this Act at any time after the commencement of his trial by court-martial, section 75G of this Act (and section 75F as applied by that section) shall apply with the following modifications.
 
    (2) In relation to a review before the announcement of the court-martial's finding on the charge or every charge against the accused, references to a judicial officer shall have effect as references to the judge advocate.
 
      (3) In section 75F(2), after paragraph (d) there shall be inserted-
 "; or
    (e) the accused's case has been adjourned for inquiries or a report and it appears to the judicial officer that it would be impracticable to complete the inquiries or make the report without keeping the accused in military custody."
      (4) Section 75F(3)(d) does not apply in the case of an accused who is awaiting sentence.
 
      (5) An order under section 75F(2) does not authorise the keeping of the accused in military custody after he is sentenced by the court-martial.
 
      (6) Subsection (1) above shall cease to apply (but without prejudice to any order already made by virtue of that subsection) if the court-martial is dissolved."
 
      (2) After section 75G of the Air Force Act 1955 there is inserted-
 
 
"Custody during court-martial proceedings.     75H. - (1) Where the accused is kept in air-force custody under an order under section 75F(2) of this Act at any time after the commencement of his trial by court-martial, section 75G of this Act (and section 75F as applied by that section) shall apply with the following modifications.
 
    (2) In relation to a review before the announcement of the court-martial's finding on the charge or every charge against the accused, references to a judicial officer shall have effect as references to the judge advocate.
 
      (3) In section 75F(2), after paragraph (d) there shall be inserted-
 "; or
    (e) the accused's case has been adjourned for inquiries or a report and it appears to the judicial officer that it would be impracticable to complete the inquiries or make the report without keeping the accused in air-force custody."
      (4) Section 75F(3)(d) does not apply in the case of an accused who is awaiting sentence.
 
      (5) An order under section 75F(2) does not authorise the keeping of the accused in air-force custody after he is sentenced by the court-martial.
 
      (6) Subsection (1) above shall cease to apply (but without prejudice to any order already made by virtue of that subsection) if the court-martial is dissolved."
 
      (3) After section 47H of the 1957 Act there is inserted-
 
 
"Custody during court-martial proceedings.     47J. - (1) Where the accused is kept in naval custody under an order under section 47G(2) of this Act at any time after the commencement of his trial by court-martial, section 47H of this Act (and section 47G as applied by that section) shall apply with the following modifications.
 
    (2) In relation to a review before the announcement of the court-martial's finding on the charge or every charge against the accused, references to a judicial officer shall have effect as references to the judge advocate.
 
      (3) In section 47G(2), after paragraph (d) there shall be inserted-
 "; or
    (e) the accused's case has been adjourned for inquiries or a report and it appears to the judicial officer that it would be impracticable to complete the inquiries or make the report without keeping the accused in naval custody."
 
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