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Armed Forces Discipline Bill [H.L.]

These notes refer to the Armed Forces Discipline Bill [H.L.] as brought from the House of Lords on 24th January 2000 [Bill 53] Armed Forces Discipline Bill [H.L.] —————————— EXPLANATORY NOTES INTRODUCTION 1. 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. SUMMARY 3. 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. BACKGROUND The system of discipline in the armed forces 4. 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 change 9. 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 BILL 11. The Bill amends, or inserts new sections in, the SDAs. It covers: arrangements for custody (clauses 1 - 10); changes to the procedure for election for court-martial trial (clauses 11 -12); functions of the prosecuting authority (clause 13); and the new system of summary appeal courts (clauses 14 - 25). COMMENTARY ON CLAUSES Clauses 1 - 10: Custody Present arrangements 12. 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: fail to surrender for custody, commit an offence whilst on bail, interfere with witnesses or otherwise obstruct the course of justice, or be a danger to himself. 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 arrangements 17. 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 charge 23. 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: Persons under arrest must not be held in custody without charge except as permitted by the legislation. If the original grounds for holding the person in custody no longer apply and there are no other grounds in the legislation which do apply, the commanding officer must order his immediate release. This does not apply to someone who appears to have been unlawfully at large when he was arrested. The section provides that a person is deemed to have been charged for the purposes of these provisions once is he informed that a charge is to be reported to his commanding officer. The new section 75A deals with authorisation of custody without charge. The CO of the person arrested must be notified of his arrest and the grounds for the arrest as soon as practicable. Until this point, the person who made the arrest may authorise the continued custody of the person under arrest if he has reasonable grounds for believing that it is necessary to do so to preserve evidence or obtain evidence. Once the CO is notified, he must determine whether or not to retain the individual based on the set criteria. These are that it is necessary to do so to preserve evidence or obtain evidence by questioning him and that the investigation is being conducted diligently. The individual can be kept in custody while the CO deliberates. The section imposes various time limits on the periods for which the CO may authorise custody. Authority for custody will end 12 hours after the time of the arrest unless it is renewed by the CO for a further period of up to 24 hours, making a total of 36 hours from arrest. The authority may be renewed once the 36 hours has expired for a maximum of a further 12 hours. The individual must be released at this 48 hour point unless the provisions of section 75C apply. The new section 75B deals with review of custody. It requires the CO to review the need for continuing custody before the expiry of the custody period already authorised and he must be satisfied that the same criteria for custody are satisfied. These additional periods of custody shall only be authorised within the time limits specified in the section. The review may be postponed if, in all the circumstances, it is not practicable to carry it out by the end of the authorised period of custody, particularly if the person in custody is being interviewed at the time and it could be prejudicial to the investigation to interrupt at that time. However, it must be carried out as soon as practicable thereafter. In the meantime, the authority to keep someone in custody is still valid. The new section 75C deals with extension of custody without charge. The CO of the person arrested may apply to a judicial officer for his continued detention and the judicial officer may grant this if he believes there are reasonable grounds to justify doing so. These grounds are specified later in the section but mirror those applied by the CO. There are a number of safeguards built in to ensure that the person under arrest is able to object to his continued detention. He must, therefore, be informed of the application and appear in person before the judicial officer (this includes the use of live television links). He is also entitled to legal representation and to an adjournment to seek such representation, although he may be kept in custody during that adjournment. An application to the judicial officer may be made at any time before the 48 hour limit from the time of arrest. An application may also be heard outside the 48 hour period if it is not practicable to hear it within the time limit and the CO's power to authorise custody, in 6 hour periods, continues until the application has been heard. However, he may not be retained in custody for more than 96 hours from the time of his arrest in any circumstances. If the judicial officer believes that a late application could reasonably have been made prior to the expiry of the 48 hour time limit, he must dismiss it. If the judicial officer does not believe that there are reasonable grounds for continuing custody, he must either hear the application later (but within the 48 hour time limit) or refuse an extension of time. The purpose of this provision is to allow an individual to be held in custody up to the 48 hour point if the judicial officer believes that the authorities may be able to secure further evidence to strengthen their case. If an application is made before 48 hours has passed, and the judicial officer declines to authorise further custody, he may direct that that individual be either charged or released from custody immediately. However, if the application was made after 48 hours and the judicial officer refuses an extension, he must order that the individual be released or charged. Any application for further custody which is granted can only allow an individual to be detained for a maximum of 96 hours from the time of the arrest. 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: Allowing the functions of the CO, in relation to custody, to be delegated, Dealing with the circumstances in which a person in custody without charge is informed of any matter or given a chance to make representations about any matter, and Providing for the keeping of written records relating to the custody. 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 charge 24. 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. The new section 75F requires that any individual subject to military law being kept in military custody shall be seen by a judicial officer promptly if he is charged with an offence under Part II of the Army Act 1955. The judicial officer may then authorise the continued custody of the accused if he is satisfied that the conditions listed in subsection (2) are met. When considering whether to authorise the continued custody of the accused, the judicial officer is to take account of the matters listed in section 75F(3), such as the nature and seriousness of the offence and any other matters that may be relevant. These subsections reflect the provisions of Part I of Schedule 1 to the Bail Act 1976. If the judicial officer decides not to authorise custody in relation to an accused charged with any of the serious offences listed in subsection (5), he must give reasons and these must be included in the record of proceedings. The maximum period for which an accused may be ordered to be retained in custody is limited to 8 days. Section 75G allows this order to be renewed by the judicial officer after each 8 day period for up to a further 8 days, or up to 28 days if the accused consents to that extended period. If the judicial officer does not authorise the retention in custody of an accused, he must be released immediately. An individual does not need to be brought before a judicial officer if charged when he is already in military custody by reason of a sentence for a previous offence, or if his custody has already been authorised under subsection (2) for other reasons. 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 charge 25. 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. The new section 75G requires that any order authorising the detention of an accused be reviewed by a judicial officer before it expires. It also requires the CO to either release the accused or request a review, as soon as practicable, if the reason for detaining the accused no longer exists. This section is similar to section 75F in that the judicial officer is required to apply the same criteria and considerations to a review of custody as he would if this was the first occasion on which detention was being considered, and an accused must be released forthwith if continuing detention is not authorised. At the first review, the accused may advance any arguments of fact or law against his continuing custody, even those advanced at the first hearing. At any subsequent reviews he may only advance new arguments. If continued detention is authorised, it may be renewed by the judicial officer for a period not exceeding a further 8 days or up to 28 days if the accused consents to that extended period. 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 proceedings 26. 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. The new section 75H applies the custody provisions in sections 75F/G, where appropriate, with modifications. The effect of subsection (2) is that the trial judge advocate will review the need for custody up until the court martial announces its finding. Section 75F(2) has an additional ground for custody inserted for the purposes of Section 75H, enabling the accused to be kept in custody during an adjournment, but an accused cannot be kept in military custody after he is sentenced by the court. Section 75F(3)(d), relating to the strength of the evidence, is not to be applied in relation to a person awaiting sentence. If the court-martial is dissolved, these modified provisions will not apply. This will not affect any order already in force. 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 proceedings 27. 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. The new section 75J applies when an accused is released from custody either at a custody hearing or at any later review of custody and provides that he shall be released from custody forthwith. The section also provides that certain persons have to comply with conditions which may be imposed by the judicial officer or judge advocate relating to his subsequent attendance at any hearing relating to the offence charged. Anyone who does not comply with these conditions will be guilty of an offence punishable by up to two years imprisonment. The persons to whom this section applies include persons who are no longer subject to military law except in relation to dealing with the offence and members of the volunteer or reserve forces. 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 proceedings 28. 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. The new section 75K applies to persons subject to military law who are charged with an offence or awaiting sentencing for an offence but not in custody. The section makes provision for the CO or judge advocate to order his arrest if they believe that there are substantial grounds for believing that the accused may fail to attend a hearing, commit an offence, injure himself or interfere with witnesses or obstruct the course of justice. The section also provides that persons subject to military law only by virtue of section 131 of the Army Act 1955 may be taken into custody if they have failed to attend a hearing. Anyone arrested under these provisions will be treated as if held in custody under section 75F and must be brought before a judicial officer or the judge advocate as soon as practicable. 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 Officers 29. 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 Rules 30. 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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Prepared: 25 January 2000