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Session 1999-2000 Publications on the internet Other Bills before Parliament Arrangement of Clauses (Contents) |
Armed Forces Discipline Bill [H.L.] |
These notes refer to the Armed Forces Discipline Bill [H.L.] Armed Forces Discipline Bill [H.L.]
EXPLANATORY NOTESINTRODUCTION1. These explanatory notes relate to the Armed Forces Discipline Bill [H.L.] as brought from the House of Lords on 24 January 2000. They have been prepared by the Ministry of Defence in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.
2. These notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.
SUMMARY3. The Bill alters certain aspects of the system for administering discipline in the armed forces. It introduces a provision for a judicial authority to determine whether a suspect or accused should be held in custody. The Bill also gives the accused an earlier opportunity to elect to be tried by court-martial and it establishes an appeals procedure for those whose cases have been dealt with summarily.
BACKGROUNDThe system of discipline in the armed forces4. The three armed services operate within a statutory framework of discipline which applies wherever in the world they are based, whether in peace or in times of conflict. In effect, this means that they have their own legal system, although as far as possible this follows the domestic law of the United Kingdom. The statutory basis for this system is the Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957, often known collectively as the Service discipline Acts (SDAs). These Acts have to be renewed by Parliament every five years. This is achieved by the Armed Forces Acts, which are also used to update the SDAs. The most recent was the Armed Forces Act 1996.
5. If an offence is going to be dealt with within the armed forces' system, the Services will be responsible for investigating it and for determining whether a suspect needs to be held in custody during the investigation. Service authorities will also decide whether to prosecute and, if so, will draw up the charges. The decision as to whether an accused should be held in custody pending trial is taken by the Services. Cases are heard in one of two ways: either summarily or by court-martial.
6. A case dealt with summarily is heard by the accused's commanding officer (CO) except where the accused is above a certain rank, in which case it will be heard by an officer superior in rank to the CO. Courts-martial are composed of a panel of officers and a judge advocate, who fulfils many of the functions of a judge in a civilian court. Courts-martial were generally reserved for the more serious cases or for cases where the accused was of too senior a rank to be dealt with summarily. Since 1997, however, an accused facing summary proceedings in all Army and Royal Air Force cases and in all but minor Royal Navy cases has been able to choose to be tried by court-martial instead. It remains the case, however, that most disciplinary matters are dealt with summarily and that punishments, where cases are found proved, are relatively minor. The vast majority of sentences from summary proceedings are non-custodial.
7. The Service discipline Acts do not just apply to Service personnel. In certain circumstances, the Acts apply to civilians as well. Civil servants, their dependants and the civilian dependants of Service personnel, who are stationed abroad and fall within the command of an officer commanding a body of regular Service personnel, may be tried under the SDAs for offences against English criminal law and a limited number of Service offences.
8. More information about the present arrangements is given as necessary in the commentary on the clauses of the Bill.
The reasons for change9. The system for administering discipline in the armed forces is kept under review, with the principal vehicle for any legislative changes that may be necessary being the five-yearly Armed Forces Acts. The Armed Forces Act 1996 made substantial changes, reinforcing the independence of courts-martial, to reflect the European Convention on Human Rights. The 1996 Act also extended the right to choose trial by court-martial described in paragraph 6 above.
10. The Human Rights Act 1998 incorporates certain provisions of the European Convention into domestic law. The main provisions of the Act are expected to come into effect on 2 October 2000. The Ministry of Defence has used this as a framework for a further review of the Services' discipline system. The proposals in this Bill result from that review. They address areas of the discipline system where there are concerns that the system may not be compliant with the Convention.
THE BILL11. The Bill amends, or inserts new sections in, the SDAs. It covers:
COMMENTARY ON CLAUSESClauses 1 - 10: CustodyPresent arrangements12. The SDAs provide for the arrest of persons subject to them who are found committing an offence, are alleged to have done so or are reasonably suspected of having done so. The following paragraphs describe the arrangements for continued custody both prior to an individual being charged and in the subsequent period before the trial. These all have as their purpose the need to ensure that no one is held in custody unnecessarily.
13. The continued custody of persons subject to the Naval Discipline Act 1957 following their arrest arises from the authority of the Crown, but there are internal regulations governing such custody. These safeguard the detainee in requiring an initial and immediate examination by the CO of the need for close custody and, thereafter, a daily review by the CO of the continued need for close custody. Close custody involves deprivation of liberty and continuous supervision. The CO applies criteria similar to those in the Bail Act 1976, namely that an individual may be detained if there are substantial grounds for believing that the accused would:
14. After every eight days in close custody without the detainee having been brought to trial, the CO is required to refer the need for continued close confinement for decision by higher authority, this being someone further up the chain of command.
15. The regulations permitting the retention in arrest of persons subject to the Army Act 1955 provide safeguards in that the matter is reviewed both by the CO, on a regular basis, and by the CO's higher authority. The person detained is able to appeal against his arrest and is entitled to be kept informed about all aspects of his arrest. In this context, arrest may mean that the individual is held in close arrest or is subject to restrictions on movement. The criteria applied by the CO are similar to those in the Bail Act 1976.
16. The powers under the Air Force Act 1955 are similar to those in the Army Act 1955. Internal regulations make it clear that an accused should only be kept in close arrest whilst awaiting trial in exceptional circumstances. Where a person is detained in arrest, he is required to be brought before his CO within 48 hours. The CO has to carry out a review of the need to retain the accused in arrest every 16 days, and the accused is able to make representations prior to each such review.
The new arrangements17. Following the judgement of the European Court of Human Rights in the case of Hood v UK, the arrangements for pre-trial custody under the Service discipline Acts have been reviewed. In this case, one of the applicant's complaints was that his commanding officer could not be considered impartial in relation to authorising his pre-trial detention and that this was in violation of Article 5 of the Convention. The Court concluded that the applicant's misgivings were objectively justified.
18. Decisions on whether an individual should be held in Service custody during an investigation will, under the Bill, be taken by a judicial officer.
19. The main effect of clauses 1-10, in addition to introducing greater commonality between the practices of the three Services, is to make provision in all three Service discipline Acts for a judicial officer to determine whether a suspect or accused should be held in custody. He will apply criteria similar to those used in ordinary domestic law, namely under the Police and Criminal Evidence Act 1984 pre-charge and the Bail Act 1976 post-charge. For the purposes of these provisions, a judicial officer will normally be a judge advocate or a naval judge advocate, but may be other suitably qualified persons specified in clause 7 of the Bill. The flexibility to appoint other qualified persons for this purpose will facilitate readier territorial coverage of applications, wherever they need to be heard. The Services also intend to use live television links where possible, to ensure that applications are dealt with as expeditiously as possible.
20. A judge advocate is a civilian lawyer appointed by the Judge Advocate General, who is responsible to the Lord Chancellor, to be a member of an Army or Royal Air Force court-martial. The Royal Navy have uniformed judge advocates (who are naval barristers of at least five years standing) appointed by the Chief Naval Judge Advocate to be members of naval courts-martial.
21. If a CO wishes to keep a suspect in custody during the investigation, he must be brought before a judicial officer in order for the judicial officer to authorise his continuing custody. When this must be done will depend on the circumstances of the investigation and may be very soon after his arrest. In no circumstances can the period during which a person is in custody without charge exceed 96 hours. Once the 96 hour point is reached the suspect will either have to be charged or released.
22. Once a suspect has been charged, if he is to be kept in custody, he must be brought before a judicial officer as soon as practicable. The judicial officer may at this stage, and subsequently, authorise detention for periods of no more than eight days (28 days with the consent of the accused).
Clause 1: Custody without charge23. This clause inserts new sections into each of the SDAs.
Subsection (1) inserts six new sections into the Army Act 1955 dealing with custody without charge after arrest.
The new section 75 deals with limitations on custody without charge. It provides that:
The new section 75A deals with authorisation of custody without charge.
The new section 75B deals with review of custody.
The new section 75C deals with extension of custody without charge.
The new section 75D applies the provisions of sections 75 to 75C to persons delivered into military custody, subject to any modifications made by statutory instrument. This refers to persons who are arrested by the civilian police under certain provisions in the Army Act 1955 or the Reserve Forces Act 1996 and handed over to the military authorities. For the purposes of the time limits for custody, the "relevant time" is defined here as either the time of arrest or the time of surrender.
The new section 75E provides that the Defence Council may make regulations:
The section also provides that time periods mentioned above are only approximate. The effect of this provision is similar to that of section 45(2) of the Police and Criminal Evidence Act 1984.
Subsection (2) inserts six new sections into the Air Force Act 1955 dealing with custody without charge after arrest. These sections are identical in effect to those described above, but they apply to persons arrested under the provisions of the Air Force Act 1955.
Subsection (3) inserts six new sections into the Naval Discipline Act 1957 dealing with custody without charge after arrest. These sections are identical in effect to those described in subsection (1) above but they apply to persons arrested under the provisions of the Naval Discipline Act 1957.
Clause 2: Custody after charge24. This clause inserts a new section into each of the SDAs.
Subsection (1) inserts a new section into the Army Act 1955 dealing with custody after charge.
Subsection (2) inserts a new section 75F into the Air Force Act 1955 dealing with custody after charge. This section is identical in effect to that described above, but applies to persons arrested under the provisions of the Air Force Act 1955.
Subsection (3) inserts a new section 47G into the Naval Discipline Act 1957 dealing with custody after charge. This section is identical in effect to that described in subsection (1) above, but applies to persons arrested under the provisions of the Naval Discipline Act 1957.
Clause 3: Review of custody after charge25. This clause inserts a new section into each of the SDAs.
Subsection (1) inserts a new section into the Army Act 1955 dealing with review of custody after charge.
Subsection (2) inserts a new section 75G into the Air Force Act 1955 dealing with review of custody after charge. This section is identical in effect to that described above but applies to persons arrested under the provisions of the Air Force Act 1955.
Subsection (3) inserts a new section 47H into the Naval Discipline Act 1957 dealing with review of custody after charge. This section is identical in effect to that described in subsection (1) above but applies to persons arrested under the provisions of the Naval Discipline Act 1957.
Clause 4: Custody during court-martial proceedings26. This clause inserts a new section into each of the SDAs.
Subsection (1) inserts a new section into the Army Act 1955 dealing with custody during court-martial proceedings.
Subsection (2) inserts a new section 75H into the Air Force Act 1955 dealing with custody during courts-martial proceedings. This section is identical in effect to that described above, but applies to persons subject to the provisions of the Air Force Act 1955.
Subsection (3) inserts a new section 47J into the Naval Discipline Act 1957 dealing with custody during courts-martial proceedings. This section is identical in effect to that described in subsection (1) above, but applies to persons subject to the provisions of the Naval Discipline Act 1957.
Clause 5: Release from custody after charge or during court-martial proceedings27. This clause inserts a new section into each of the SDAs.
Subsection (1) inserts a new section into the Army Act 1955 dealing with release from custody after charge or during proceedings.
Subsection (2) inserts a new section 75J into the Air Force Act 1955 dealing with custody after charge or during court-martial proceedings. This section is identical in effect to that described above, but applies to persons arrested under the provisions of the Air Force Act 1955.
Subsection (3) inserts a new section 47K into the Naval Discipline Act 1957 dealing with custody after charge or during court-martial proceedings. This section is identical in effect to that described in subsection (1) above, but applies to persons arrested under the provisions of the Naval Discipline Act 1957.
Clause 6: Arrest during proceedings28. This clause inserts a new section into each of the SDAs.
Subsection (1) inserts a new section into the Army Act 1955 dealing with arrest during proceedings.
Subsection (2) inserts a new section 75K into the Air Force Act 1955 dealing with arrest during proceedings. This section is identical in effect to that described above, but applies to persons arrested under the provisions of the Air Force Act 1955.
Subsection (3) inserts a new section 47L into the Naval Discipline Act 1957 dealing with arrest during proceedings. This section is identical in effect to that described in subsection (1) above, but applies to persons arrested under the provisions of the Naval Discipline Act 1957.
Clause 7: Judicial Officers29. This clause inserts a new section into each of the SDAs describing who shall appoint judicial officers and what criteria must be fulfilled to qualify as a judicial officer. Judicial officers will normally be judge advocates but the sections allow for the appointment of certain other persons to act as a judicial officer. The section inserted into the Naval Discipline Act varies slightly from those in the Army and Air Force Acts because their judge advocates differ from those used by the Army and Air Force. A definition of the two types of judge advocate is given in paragraph 20.
Clause 8: Custody Rules30. This clause inserts a new section into each of the SDAs enabling the Secretary of State to make rules regulating proceedings preliminary to, and at, a custody hearing. These rules will be made by statutory instrument. Subsection (2) of the inserted sections lists matters that are expected to be dealt with in the rules, such as representation and witnesses, but this list is not exhaustive.
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© Parliamentary copyright 2000 | Prepared: 25 January 2000 |